87 Wis. 54 | Wis. | 1894
The plaintiff married the mother of the defendants in 1868, when the defendants were quite young. The boys both left home before they were sixteen years of age, and went to work for themselves. After they had accumulated a little money, and as early as 1884, the defendants, or one of them, went to Europe, bought some horses, shipped them to this country, and sold them. In the spring of 1885 they located at Watertown, and went into the business of buying and selling both imported and American horses, mostly for breeding purposes, but also on commission. The business of buying horses in Europe and shipping them to this country and selling them, by the defendants, appears to have been continued during the years
The evidence is voluminous and conflicting. The determination of the question presented necessarily depended upon the credibility of the respective witnesses. The plaintiff appears to be a German, who speaks the English language very imperfectly, if at all. It appears also to be conceded that the referee was a lawyer of ability, thoroughly
It is suggested, however, that the recent amendment to sec. 3070, R. S., by sec. 2, ch. 242, Laws of 1893, makes it the “ duty ” of this court to review “ all questions of law or fact presented by the record upon such appeal or writ of error,” and “ to examine and review the evidence when the same is preserved by a bill of exceptions, and give judgment according to the right of the cause, regardless of the decisions upon questions of fact or law made by the court below, according to law and equity.” This court has always sought to review “ all questions of law or fact ” properly presented for review by the record upon appeal or writ of error. It has, moreover, always sought “ to examine and review the evidence when the same is preserved by a bill of exceptions ” in a manner authorizing and calling for such examination and review, according to the established rules of-“law and equity.” Accordingly, this court has never felt bound by the findings of the' trial court regardless of the weight of evidence in an equitable action or an action tried by the court without a jury, or even the verdict of a
Undoubtedly, within certain limits, the legislature has power to regulate the practice of this court; but it must be remembered that this court, as well as the legislature, gets its judicial power and jurisdiction directly from the constitution. That instrument declares that “the judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace.” Sec. 2, art. YII. It moreover declares that “the supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed.” Sec. 3, art. YII. The case at bar is not one of those otherwise provided for in the constitution, and hence is not within the exception mentioned. In fact, there are very few cases which do come within that exception. The duties of this court are confined almost wholly to an exercise of its appellate jurisdiction.
The constitution provides that “the right of trial by jury shall remain inviolate; and shall extend to all cases at law.” Sec. 5, art. I. This court has uniformly held that this language imports that such right must remain as it existed when the constitution was adopted. Norval v. Rice, 2 Wis. 22; Gaston v. Babcock, 6 Wis. 503; Mead v. Walker, 17 Wis. 189; Connecticut Mut. L. Ins. Co. v. Cross, 18 Wis.
In Oatman v. Bond, 15 Wis. 20, the writer of this opinion attempted to sustain the validity of a legislative enactment which authorized, in a certain class of equity cases, a compulsory reference to take testimony, and gave a jury trial as a matter of right, and in some respects changed the established rule of procedure, the effect of evidence and judgment in such cases, and provided that certain matters not incorporated in the bill of exceptions should be considered by this court the same as though they were so incorporated ; but the court properly held the enactment to be a nullity. So, a statute requiring every issue of fact in an action to foreclose a mortgage'executed to a corporation to be submitted to a jury on demand of either party was held
We must hold that, in so far as sec. 2, ch. 242, Laws of 1893, has attempted to give this court original jurisdiction in cases in which, under the constitution, it only has appellate jurisdiction, the same is null and void. This leaves the statute on that subject essentially the same as it was in sec. 3070, R. S.
Counsel contends that upon the findings of fact the referee and trial court improperly allowed interest upon the balance due the plaintiff upon the accounts between the parties. But the referee found, in effect, that the $3,100 was loaned to the defendants with the mutual understanding between the parties, had in June, 1886, that the moneys so loaned “ should be repaid at the expiration of eight months.” It therefore became due at the end of the eight months, and would draw interest thereafter without any agreement. Besides, it appears from the defendants’ bill of particulars that the amount was not very materially re
By the Court.— The judgment of the circuit court is affirmed.