11 Wis. 11 | Wis. | 1860
By the Court,
This is an action for the recovery of damages upon an agreement of indemnification, in the form of a covenant for quiet enjoyment, as used in conveyances of real estate. The instrument in which it is contained, and which is dated April 1, 1850, and was executed and delivered by the defendant, and Elizabeth Judd, his wife, to the plaintiff, is in all respects a deed of conveyance to the plaintiff of certain lands 'in Dodge county, except that it is not sealed by the defendant and his wife. The complaint alleges that under the instrument, the plaintiff entered into and remained in the enjoyment of the premises described until the first day of May, 1855, when he was evicted by one Alfred Williams, who, at the time of the execution of the instrument and ever since, has had the lawful right and title to the same; that the plaintiff, prior to the first of April, 1850, paid the defendant '$‘138 10, part of the purchase money; and that on the 7th of July, 1855, he paid to Williams $36 87, costs of suit brought for recovering the possession; and claims judgment for said sums, with interest, from the dates aforesaid. The defendant answered: 1st, denying generally, each and every allegation of the complaint; and 2d, alleging that the cause of action set forth in the complaint, did not accrue within six years next preceding the commencement of the suit
A trial by jury having been waived, the cause was tried by the court The judge found the facts substantially as set forth in the complaint, and directed judgment accordingly. It appears from the bill of exceptions, in addition to the facts
If the facts stated in the bill of exceptions to have been proved, but which were omitted by the judge in his finding, were material to the defense set up in the answer, or affected the substantial rights of the defendant, which are matters into which we cannot here inquire, it is very evident that he entirely mistook his remedy. The omission complained' of is not a question of law, but a matter of fact. The section referred to, authorizes exceptions to decisions on matters of law, arising on the trial, and not to questions of fact.
This point was directly ruled by this court at the last term, in the case of Hutchinson vs. Eaton, 9 Wis., 226. The exceptions authorized by the section extend only to the conclusions or decisions of law, upon the facts found by the judge, which, by the preceding section, he is required to state separately.
In Hunt vs. Bloomer, 3 Kernan, 341, it was held by the court of appeals of New York, under a provision, of which ours is a copy, that the exceptions which may be taken within ten days after notice of judgments, are only those which, under the former system of practice, were made to the rulings of the court after the evidence was closed, and before the jury retired.
The use of the word defendant, in that portion of the finding where the payment of the costs of the suit brought by Williams is stated, is so clearly a clerical mistake, and it is so evident from the context, that the plaintiff was intended, that we think the error must be disregarded.
Judgment affirmed.