Childs v. Dahlke

160 Wis. 184 | Wis. | 1915

KebwiN, J.

We are unable to say that the learned trial court abused its discretion in denying the application of appellants to open the default and allow the settlement of a bill of exceptions. The appeal from the judgment must, therefore, be reviewed upon the findings and judgment.

We have set out at length the findings and judgment in the statement of facts, from which it appears that the trial court gave the case very careful attention and made very complete findings.

. It is argued by counsel for appellants that the judgment is so indefinite that it cannot be enforced. Counsel says the judgment is indefinite in that it fails to definitely describe the west boundary of the space to be filled as well as the height or depth of the 'filling. It appears that the court viewed the premises, and the physical condition thereof is well described in the findings and judgment. The location of the original conduit, monuments, and landmarks referred to must be taken to be visible in so far at least as to definitely show the line or level of the conduit referred to, the high land on the west, and the extent of the filling. All that is necessary is that the judgment be sufficiently definite that the limits of the filling may be ascertained from the judgment and record. 1 Black, Judgm. (2d ed.) §§ 111, 118, 123. With the aid of an engineer there would seem to be no difficulty in determining the limits of the filling from the description given in the judgment. That is sufficient. The judgment must be construed and the limits of the filling defined according to the physical condition as it existed at the time the judgment was entered.-

Some point is made that there were two conduits on the premises, and that it cannot be determined which is referred to in the judgment. It is clear, we think, from an examination of all the findings on both trials and the judgment as modified, that the remains of the conduit appearing on the premises when the judgment was entered is the so-called original conduit and the one described in the modified judgment ; that the filling is to be at least one foot above the bottom of such conduit, and such height can easily be determined. When such point of the height of the filling is determined, no trouble will be found in carrying the filling westerly to the point of high ground, because such point is shown by the physical condition of the premises and the courses and distances described in the findings and judgment.

The theory of the judgment obviously is to fill the space described to a point at least one foot above the bottom of the conduit and then carry sucb filling westerly over the low ground until tbe elevated ground is reached, so that the space ordered filled shall be completed to a height as described in the findings and judgment. We think the description is sufficiently definite. Miller v. Lavelle, 130 Wis. 500, 110 N. W. 421.

Counsel for appellants further insists that the court below should have provided in the judgment that in accordance with the deed through which plaintiff claims he should be required to make repairs when such repairs were occasioned by the carelessness of the plaintiff. That provision clearly was unnecessary, because such duty rests upon plaintiff as matter of law upon the facts found and the judgment entered. Childs v. Dahlke, 151 Wis. 82, 93, 94, 138 N. W. 277.

Counsel further argues that it was not necessary that any filling be done, because the 150 inches of water might be de^ livered upon lots 6 and 1 in some other way than in the manner ordered. Counsel argues this proposition as though the evidence on the last hearing was before us. But since it is not, we cannot determine whether or.not some other more practical method than the one ordered might have been ordered.

After a careful' examination of the record we are satisfied that the judgment and order appealed from must be affirmed.

By the Court. — It is so ordered.