45 Wis. 281 | Wis. | 1878
•We are of the opinion that the'finding of fact is fully sustained by the evidence in the case.
In the first place, the court might be justified in presuming that the finding of fact was sustained by the evidence, because the appellants have not pointed out wherein the evidence fails to support such finding. It becomes, we think, the duty of the party who takes an exception to a finding of fact, upon an appeal to this court, to point out wherein the evidence fails to establish such fact, and not leave the court to labor through a mass of undigested evidence to ascertain for itself where the defect in the evidence exists. But in this case we are not called upon to proceed upon a presumption, as the counsel for the respondents have taken upon themselves the burden of showing affirmatively that the evidence does sustain the finding. After as careful an examination of the evidence, as digested by the learned counsel for the respondents, as our time will permit us to give to that work, we- are satisfied that the
Although, from this evidence, it appears that on the 7th day of February, 1874, the general fund account had been overdrawn to the amount of over $10,000, this over-draft was made good by payments into the bank of $25,000, money belonging to said fund, two áays after, and that account was kept good from that time, and on the 2d of May, 1874, there was a balance to the credit of that fund of $17,118.51, within $2,073.26 of what the actual balance ought to have been, and that sum has been more than paid by the sureties to the bond upon which this action is brought. And there is no evidence that the “court-house fund” was ever made good between the 2d day of May, 1874, and the commencement of this action. It may be urged that on the 7th of February, 1874, when the whole court-house fund was exhausted, and the treasurer was indebted to the bank holding the fund, a part of that fund had been drawn to pay orders on the general fund; and this appears to have been the fact; for, on that day an order of the amount of $50,000 on the general fund was paid, and this order not only exhausted all the general fund, as well as the court-house fund, but left the treasurer indebted $5,890.68, and the general fund overdrawn $10,516. It would seem, therefore, that of -this $10,516, $4,625.32, the difference between the overdraft and the $10,516, must have been paid out of the court-house fund; that the money belonging to the general fund afterwards paid into the bank should go to the credit of the court-house fund to the amount drawn from it for gen
ITad it not been for the expression found in sec. 3, ch. 400, P. & L. Laws of 1871, above quoted, “ and the said treasurer and his sureties shall be liable to said county for any misapplication of the same or any part thereof,” we should without any hesitation have, come to the same conclusion as was arrived at by the learned counselor who was the referee, as well as by the circuit court. This expression has given us some difficulty; but, taking into consideration the whole act in relation to this fund, and in connection with ch. 178, Laws of 1874, which provides for the conversion of the unexpended balance into general funds, and the like expression in that act, as above also quoted, we are inclined to hold that it was the intention of the legislature not to impose upon the sureties on the general bond of the treasurer any liability for the safe-keeping and disbursement of this special fund. This daw of 1871, providing for the raising of funds for the construction of a court house, was
The remaining question is, whether ch. 400, P. & L. Laws of 1871, does upon its face, either expressly or by fair impli
In construing particular words or phrases in a statute, great weight is always to be given to the construction which the legislature passing the same has pút thereon, either in other parts of the same act, or in other acts relating to the same subject matter. Rogers v. Bradshaw, 20 Johns., 744; 1 Kent’s Com., 463; Alexander v. The Mayor, 5 Cranch, 1; Munger v. Lenroot, 32 Wis., 541; Potter’s Dwarris, 189, and note. "We are of the opinion that, in view of all the legislation upon this subject, and from the nature of the duties required of the treasurer as respects this special fund, the words found in sec. 3, ch. 400, P. & L. Laws of 1871, “ and the said treasurer and his sureties shall be liaNe to said county for any misapplication of the same or any part thereof,” must be construed to refer to the sureties on the special bond there required to be given, and not to the sureties on his general bond. If the legislature had intended to charge the sureties upon the general bond for the safe-keeping of this special fund, we think it would have so stated in express terms, and not left the. matter in doubt.
It is urged by the counsel for the appellants, that under the
Tbe intention is very clear, that a special fund of a very large amount was to be raised for a special purpose, in a manner out of tbe usual course of raising funds for tbe use of
As the evidence shows that the moneys converted by the defendant Ehlers were a part of this special fund, and that the same were converted before the passage of ch. 178, Laws of 1874, which turned such special fund into the general fund, such conversion was not a breach of any of the conditions of the bond upon which this action was brought, and the judgment of the circuit court dismissing the complaint was rightly entered.
1. It is claimed that the proceedings are irregular for the reason that the referee did not take an oath of office. Without determining whether it is irregular for a referee to hear and try a case without first having taken the oath of office, there are at least two reasons why that objection cannot be raised in this case. First, the record does not show that the referee did not take an oath of office; and secondly, if he did not take such an oath, and the law requires that he should, the appellants waived the right to insist that he should have taken such oath, by proceeding to the trial before him, knowing that he had not taken such oath, and taking no exception on that ground. Howard v. Sexton, 1 Denio, 440; Thompson v. Smith, 2 Bond (U. S. C. C.), 320.
2. It is claimed that a new trial should be granted because the report of the referee does not contain all the evidence. This exception cannot be heard in this court. If the referee failed to return all the evidence taken on the trial, the plaintiff should have brought that question before the court below, by a motion founded upon affidavits showing the fact, and asking an order from the court requiring him to return all the evidence so taken, and for a stay of proceedings upon the motion to confirm the report of the referee, until such order was complied with.
By the Court. — The judgment of the circuit court is affirmed.