Hoffman v. Chicago, Milwaukee & St. Paul Railway Co.

86 Wis. 471 | Wis. | 1893

LyoN, 0. J.

1. The motion for a new trial is based upon the minutes of the court, and certain affidavits are referred to therein which were attached to and served with the motion. Such affidavits are in the record returned to this court. There is no bill of exceptions in the case, and nothing whatever in the record to show what papers were used on the hearing of the motion. We can only presume that inasmuch as the motion was founded on the minutes of the court, and certain affidavits are referred to in the motion and were served therewith, such minutes and affidavits were used on the hearing and are the basis of the order granting the motion. But these minutes are not here, and hence, should the court be of the opinion that the affidavits, considered by themselves, do not sufficiently establish the alleged misconduct of the juror as found by the circuit court, still this court cannot say that the minutes do not clearly show such misconduct and want of impartiality on the part of the juror. Eor that reason we cannot properly disturb the order founded upon the existence of such misconduct and want of impartiality. It is too well settled to admit of discussion that an appellate court will not review findings of fact unless it has before it all the testimony upon which the findings were made. The order> in question rests upon a finding of fact which, if true, justifies the order, and the record shows affirmatively that all the proofs on which the finding is made have not been returned to this court. All that we can do is to presume that such proofs are sufficient to support the order.

2. On the appeal of the railway company it need only be said that the misconduct of a juror in the particular mentioned in the order-does not of itself render the verdict of the whole jury a perverse verdict, or bring the case within any of the exceptions to the general rule that a new trial should be granted only on the terms that the moving party pay the costs of the former trial. Schraer v. Stefan, 80 Wis. 653, and cases cited. Those exceptions are stated in the above case to be when the verdict is perverse or entirely unsupported by evidence, or in which the court has misdirected the jury as to the law of the case. It should be observed there is no claim that the plaintiff was responsible for the misconduct of the juror. Had be been responsible therefor, or in any manner connected therewith, the case might and probably would furnish another exception to the general rule just stated in respect to costs. The new trial was really granted by the court, not as matter of strict right, but in the exercise of its sound discretion, and the case is within the general rule above stated in respect to costs.

By the Court. — ■ The order of the circuit court is affirmed on both appeals.