Donner v. Genz, 129 Wis. 245

Donner v. Genz

129 Wis. 245 | Wis. | 1906

Lead Opinion

The following opinion was filed June 21, 1906:

SiebecKER, J.

Error is assigned upon the ground that cne evidence is not sufficient to sustain plaintiff’s cause of action. Nespondent argues that the answer contains no denial of plaintiff’s cause of action, and that judgment should have *247been awarded upon such, default for the amount claimed. The record discloses that the county court held that the answer sufficiently alleged a denial of plaintiff’s claim, and the circuit court apparently so treated it or deemed the pleading amended to conform to the evidence actually presented. We find nothing in the record showing why the evidence, which was received without objection, was not properly before the circuit court and to be considered in determining the rights of the parties. Under such circumstances the pleadings will be deemed to be amended, on appeal, so as to admit the evidence. Packard v. Kinzie Avenue H. Co. 105 Wis. 323, 81 N. W. 488; Coe v. Rockman, 126 Wis. 515, 106 N. W. 290; Gill v. Rice, 13 Wis. 549.

The judgment appealed from awards plaintiff recovery of a balance claimed to be due him for the purchase price of logs sold to the defendant. The evidence adduced on this question is in conflict. The county and the circuit courts both found that this cause of action was established by the evidence. We have read the evidence and find that it is of such weight in support of. the findings of fact of the trial courts that we cannot say that the findings are against the clear preponderance of the evidence. The judgment should stand.

By the Court. — Judgment affirmed.

Rehearing

The appellant moved for á rehearing, and the following opinion was filed October 9, 1906:

Pee Oueeui.

We find no support for the contention that this court in cases of appeal to circuit courts, where the case is tried on the record of the justice of the peace before whom the original trial was had, is not governed by the rule expressed in the opinion, to the effect that since the findings of facts of the circuit court are not against the clear preponderance of the evidence they cannot be disturbed. PTone *248of the cases cited (Campbell v. Babbitts, 53 Wis. 276, 10 N. W. 400; Hassa v. Junger, 15 Wis. 598; Silvernail v. Rust, 88 Wis. 458, 60 N. W. 787) pass upon, this question. So far as the subject was considered in those cases, it related to the question of whether the judgments appealed from were supported by the evidence. This is a wholly different inquiry from the one now suggested, which asks reversal of the judgment of the lower court in such cases on appeal to this court on the ground that the judgment is not supported by the weight of the evidence. RTothing in the provisions of sec. 3769, Stats. 1898, conflicts with the rule of this court that the conclusions of the trial court will not be disturbed on appeal to this court unless they are against the clear preponderance of the evidence. The languagé of the court in Fintel v. Cook, 88 Wis. 485, 60 N. W. 788, that this court in such cases is not prevented from ordering an affirmative judgment according to the weight of the evidence and the justice of the cause, must be construed in view of the case then before it upon which such judgment was ordered. It is obvious from the opinion that the court found in that ease that there was no evidence to support the judgment appealed from, and that appellant, upon the uncontradicted facts, was entitled to judgment in his favor, and judgment was accordingly ordered. We deem the rule under which the case was determined in this court, namely, unless the findings of facts of the trial court are against the clear preponderance of the evidence they cannot be disturbed on appeal to this court, applicable to cases of this nature. The reasons for the rule are well presented in Ely v. Daily, 40 Wis. 52; Snyder v. Wright, 13 Wis. 689; Murphy v. Dunning, 30 Wis. 296; Johnson v. Goult, 106 Wis. 247, 82 N. W. 139.

The motion for a rehearing must be denied.