22 Wis. 128 | Wis. | 1867
This cause was tried before a referee, who found in favor of the defendant upon the defense of usury. Upon filing the report of the referee in the clerk’s office in vacation, judgment was entered upon it by the clerk in favor of the defendant. This judgment was set aside at the next term of court, on motion of plaintiff’s attorney; and, on the same day, in the absence of the attorney of the plaintiff, and without any notice being served on him, an order was entered directing judgment to be again entered in favor of the defendant. The plaintiff has appealed from this judgment, having procured a bill of exceptions to be
Our statute very clearly and explicitly regulates the practice ' of trying causes before a referee, and tbe method of bringing them before tbe court for review. Section 14, chap. 264, Laws of 1860, provides that in cases tried before a referee, either party, for the purpose of an appeal or suing out a writ of error, may cause exceptions to be taken and noted by tbe referee during tbe trial, in tbe same manner as in case of a trial before tbe court or jury. Tbe referee must note in bis minutes any exceptions so taken, and return them, together with all tbe testimony taken before him, with bis report, to tbe court in wbicb tbe cause is pending. Exceptions in writing to tbe facts found by tbe referee, or to bis conclusions of law thereon, or to both, may be filed within ten days after written notice of tbe filing of tbe report; and all such exceptions may be beard and determined by tbe court on a motion to set aside or confirm tbe report. Further provision is made for tbe settlement of bills of exceptions, and as to what they must contain. But tbe whole section evidently contemplates that whenever exeeptions-are taken to tbe rulings of tbe referee, or to bis findings, these exceptions should be beard and considered
It is true, the 16th section of this same chapter provides, that upon an appeal to the supreme court from a judgment rendered in cases tried by the court or before a referee, the supreme court may review any question of fact, as well as of law, decided by the court or referee, where exceptions have been taken to the findings upon questions of fact. At first blush, this might seem to provide that the supreme court should directly review the action of referees. This, however, was not the object of this provision, but it was intended to devolve upon the supreme court the duty of
But it is said there was an irregularity in rendering judgment on the report upon motion of the defendant, as no notice of such a motion had been served upon the attorney of the plaintiff1. "We are of the opinion that correct practice requires that notice of such a' motion should be given the opposite party. And if it is not given, the proper way for the aggrieved party to proceed is, by an application to the circuit court to set aside the judgment for that reason. But -he. cannot take advantage of the error in practice on appeal from the judgment, especially where-, as in this case, there is no exception to the order directing judgment to be rendered according to the findings of the referee. The plaintiff should have made his motion in the circuit court to set aside the judgment because no notice of the motion was given him; and if the court had refused to set the judgment aside, he could have appealed from the order denying his motion. He has mistaken the practice upon this point, as well as upon the one first noticed.
It follows from these views -that the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.