Davidson v. Davidson

10 Wis. 86 | Wis. | 1859

By the Court

Code, J.

We do not find in the return made by the clerk of the circuit court any bill of exceptions or case embracing the testimony, which was used upon the trial of this cause, and we, therefore, can only consider such errors as are apparent upon the record. In looking into the record we do not discover any errors the finding of the court upon the facts supports the judgment; and we must presume the finding of the court was warranted by the evidence produced on the trial. If the appellant had desired this court to review the testimony, to see if it supported the conclusions of the court below upon the facts, a ease should have been prepared and settled or a bill of exceptions, embracing the testimony, as required by the rules. . The judgment was entered in July, 1858 ; and we find at the end of a printed case, purporting to contain the evidence used upon the trial, a certificate of the late circuit judge of the 9th circuit, bearing date the 31st of May, 1859, certifying that such printed case contains copies of the complaint, answer and evidence produced in court, in the form of depositions, &c., but no such testimony is sent up with the return of the clerk, and it is not pretended that any case was made or bill of exceptions prepared embracing the testimony within the time prescribed by the code and the rules of court. The respondent insists that because there is no bill of exceptions, or case, that the evidence is not before this court for review; and we think this position well taken. The appellant probably fell into an error by not considering the change in the practice introduced by the code. Formerly, in equity cases, the party obtaining the decree in the court below was compelled to have the evidence preserved and returned to this court, properly authenticated, which supported the decree; but, now, the party appealing must preserve the evidence by incorporating it in a bill of exceptions, or case, settled within the time prescribed, with such exceptions as were taken during the trial; otherwise the evidence cannot be received.

The judgment of the court below is affirmed.