Eder v. Grifka, 149 Wis. 606

Eder v. Grifka

149 Wis. 606 | Wis. | 1912

SiEBECKER, J.

It is manifest that the complaint was insufficient in that it failed to allege any of the special circumstances and conditions showing that the defendant was liable for necessaries furnished to his wife. A husband is not ipso-facto liable for all necessaries that may he furnished his wife. It is only under circumstances and conditions showing a necessity that they be furnished her hy others, such as his misconduct compelling her to leave him and their home, his wilful refusal to provide for her, or his deserting her, that the huS'-band is liable for them. Since the special circumstances and conditions creating such a liability are essential to a cause of action for such a claim, they must be alleged to constitute a good complaint in such an action. Brown v. Worden, 39 Wis. 432; Warner v. Heiden, 28 Wis. 517.

It appears from the record of the proceedings had in the civil court that when the first witness called by the plaintiff to sustain his claim had been sworn, the defendant objected to the reception of any evidence under the complaint upon the ground that it failed to allege facts sufficient to constitute a cause of action. The court overruled the objection and ordered that the trial proceed. The question is: Does this error of the civil court require reversal hy the circuit court of the judgment appealed from ? It is provided by subd. 3, sec. 28, ch. 549, Laws of 1909, that

“Every judgment of said civil court shall be affirmed or modified and affirmed as so modified, by the circuit court, upon appeal, unless, by reason of manifest prejudicial error in the trial of the action in which such judgment was rendered, any party thereto has not had a fair trial thereof in the civil *611court; but iu any sucb case of mistrial, where substantial justice cannot otherwise be done and the rights of the parties otherwise observed’and protected, the judgment of the civil court therein shall be reversed,” etc.

It is obvious from the context of this provision that a judgment of the civil court is not to be reversed upon appeal to the circuit court, unless, upon examination of the record of the civil court as returned to the circuit court, it shall appear from such return that “by reason of manifest prejudicial error in the trial” the appellant “has not had a fair trial thereof in the civil court.” It is also provided that “in any such case of mistrial, where substantial justice cannot otherwise be done and the rights of the parties otherwise observed and protected,” the judgment appealed from is to be reversed and further proceedings, as there provided, are to be had in the appellate court. It seems reasonably clear from the statute that the appellant was not, as a matter of right, entitled to reversal of the judgment by reason of manifest error committed by the trial court. It must furthermore appear in the circuit court that the manifest error resulted in an unfair trial of the action as to the appellant and that by reason thereof substantial justice cannot be done except by a reversal, and that the appellant’s rights cannot be otherwise observed and protected. The legislature, in dealing with this subject, evidently designed to mate it the rule that the judgment of the trial court should stand unless it should affirmatively appear, upon examination of the record, that the error complained of had such a prejudicial result that the appellant did not have a fair trial, and that by reason thereof his rights cannot be protected and substantial justice done him without a reversal of the judgment appealed from. It therefore devolved on the circuit court to examine the record and determine whether the error complained of had had such an adverse effect upon the appellant’s rights as required a reversal of the judgment. Obviously, the object of *612this procedure is to promote tbe ends of justice and obviate the necessity of retrials of causes on account of such errors, when the appellate court is of the opinion that such a technical mistrial did not produce a miscarriage of justice, and that substantial justice was attained by the judgment appealed from. Applying this test to the instant case, it must be ascertained whether or not the holding of the trial court in overruling the demurrer ore terms prevented the appellant from having a fair trial, whether or not it operated in such a way that substantial justice was not done, and whether or not the rights of the appellant could be observed and protected without a reversal of the judgment. The record shows that the trial court proceeded with the trial, after overruling the demurrer ore terms, and that witnesses were sworn by both parties and their evidence taken. No record of the evidence was returned by the civil court, but the civil court made its findings of facts upon the disputed issues of fact, to the effect that the special circumstances and conditions of defendant’s liability for necessaries of his wife were shown to exist. These issues were gone into on the trial and were determined by the court. There is nothing in the record showing that the defendant was surprised by the court’s ruling, was unable to produce his evidence on these issues, or that he did not fully meet these issues with such evidence as he could command in defense to plaintiff’s claim. Under these circumstances the error of the court’s ruling did not deprive the appellant of a fair trial; nor did the ruling against him operate to prevent substantial justice being done and his rights from being observed and protected by the judgment he appealed from. Under such circumstances the provisions of the statutes do not contemplate that the judgment should be disturbed on appeal. Since the evidence is not before us, it is presumed that the findings are sustained by the evidence adduced.

It is to be observed iliac che return of the clerk of the civil court, pursuant to ch. 160,-Stats., should contain the evidence *613taken on tbe trial. Sec. 3763, Stats. (1898). Tbe procedure for taking an appeal from tbe civil court to tbe circuit court shall be in tbe manner provided by cb. 160 of tbe Statutes relating to appeals from justices’ courts. Subd. 1, sec. 28, ch. 549, Laws of 1909. See Fred Miller B. Co. v. Milwaukee, 150 Wis. -, 136 N. W. 157.

By the Court. — Tbe judgment appealed from is affirmed.