225 Wis. 74 | Wis. | 1937
The following opinion was hied April 7, 1937:
(1) The claim of the plaintiffs, being hied in proceedings for the winding up of the affairs of a corporation, is considered as in equity, triable to the court without a jury. Harrigan v. Gilchrist, 121 Wis. 127, 282, 99 N. W. 909; Keeney v. Clark, 186 Wis. 499, 508, 202 N. W. 466. Being so triable the verdict of the jury was advisory only. The court therefore might properly refuse to accept the findings of the jury, and make its own findings of fact and render judgment thereon. Charles Baumbach Co. v. Hobkirk, 104 Wis. 488, 80 N. W. 740; Gavahan v. Shorewood, 200 Wis. 429, 228 N. W. 497; McIntyre v. Carroll, 193 Wis. 382, 388, 214 N. W. 366. The court having done this, we cannot disturb its judgment unless it is contrary to the great weight and clear preponderance of the evidence. The findings of fact made by the court are twenty-four in number. They cover not only the ultimate facts at issue in actions for fraud, but include findings of a great number of evidentiary facts. They show a full understanding and careful consideration of the evidence and are clearly supported by it. The judgment must therefore be affirmed. Although the above covers all that is necessary to disposition of the case, we conclude to treat briefly other matters of practice raised by the plaintiffs on the assumption that the action is one at law.
(2) If a party is entitled to a jury trial as matter of right, he waives a jury trial by going to trial to the court without demanding it. The record discloses no demand for a jury
(3) Aside from waiver, the plaintiffs were estopped from demanding a jury trial by the change of venue made after the plaintiffs left the case on the court calendar and thereby indicated assent to its trial to the court. The defendants, had they known a jury trial would be demanded, would not have assented to the change of venue. They would have preferred a trial in the county of their residence, where they were well known, and apparently held in high esteem by the public, while it was immaterial where the trial was had in case of trial to the court without a jury. It was thus of advantage to the defendants to have the trial in Waupaca county if a jury trial was to be had. Estoppel by conduct of a party arises when his conduct has resulted in disadvantage to the opposite party or in advantage to himself. Defendants’ counsel were justified in assuming that a jury trial would not be demanded, both because the proceeding in which the claim was filed was in equity, and because the prayer of the claim was for equitable relief. While it is true that the form of the prayer does not alone determine whether a case is at law or in equity, in the instant case its effect was to induce belief of defendants’ counsel that the plaintiffs considered the case as in equity and that a jury trial was not expected.
(4) The plaintiffs urge that in actions at law “where the falsity of the representation is not obvious, the law ‘does not require that a purchaser shall meet every positive statement with incredulity and must search to ascertain whether it is false,’ ” citing Jacobsen v. Whitely, 138 Wis. 434, 436, 437, 120 N. W. 285, and that the jury’s findings that the plaintiffs had no right to rely on the truth of the representations involved in questions (a) and (b) should have been set aside by the court. The rule above quoted may be conceded. The
By the Court. — The judgment of the circuit court is affirmed.
A motion for a rehearing was denied, with $25 costs, on May 25, 1937.