81 Wis. 546 | Wis. | 1892
It has been held by this court that an application for a new trial under sec. 3092, R. S.,
The verdict upon which the judgment in this case was rendered was founded upon a stipulation of the attorneys for the respective parties as to the facts affecting the title, instead of formal proofs, and was rendered by direction of the court; but it is clear that the admissions made only supplied the necessity of proof of the same facts; and that the verdict was directed, instead of being the result of actual deliberation, cannot alter the case, for the party defeated ¡has the right tó contérid upon the sécond trial that the facts 'admitted did not warrant a judgment against-him', even' though it is manifest that his contention cannot be successful. Besides, it'is possible that grounds may exist for relieving the party applying for a new trial from the effect of the stipulation of facts made by his counsel, so that it will not be allowed to operate against him on the second trial.
• it" having been- made • to appear that' the verdict was given in favor of the plaintiff by reason of the defects or insufficiency in the proceedings prior to the sale upon which the- tax deed was issued under which the defendant claims title, the court made the order required by see. 3087, R. S.,'
It is plain that tbe defendant has not parted with or surrendered any right or privilege as a condition or consideration for a waiver by tbe plaintiff of its right to a new trial, nor has tbe plaintiff' received any benefit or advantage as a consideration for such waiver. In this respect tbe case is quite clearly distinguishable from the case of Roberts v. Baumgarten, 126 N. Y. 336, relied on by tbe appellant’s counsel, in which an unsuccessful party in an action of ejectment was held to have waived bis right to a new
The course pursued by the circuit court on the return of the verdict, of making a conditional order, as it did, instead of rendering a conditional judgment, to be made absolute thereafter on proof of payment or default, as the case might be, was correct. The statute does not contemplate that judgment in such cases shall be rendered until the plaintiff has made payment or made default in making it within the ninety days prescribed by the statute.
By the Court.— The orders of the circuit court appealed from are affirmed.