172 Wis. 388 | Wis. | 1920
The original claim filed in county court by plaintiff states that the alleged loan was evidenced by the writing above mentioned. The circuit court permitted claimant to amend the claim'by alleging the facts of the loan in the form of a separate count without i-eference to this writing. We discover no erfor in so amending the claim. This, however, did not operate to so amend the claim as to effect a withdrawal of the claim filed and thus completely substitute another claim for the one originally filed in county court. If plaintiff failed to establish that the writing as alleged was given by decedent as evidencing the loan, he would not be barred from recovering on his claim the amount of a loan if it was legally established by other evidence than the writing. Hence the amendment of the claim in circuit court accomplished no more than to permit claimant to recover the alleged debt, if satisfactorily proven aside from the alleged written memorandum. All of the evidence received by the court was material and competent evidence upon the issue raised by the pleadings, and must be considered in determining whether or not the findings of the circuit court assailed on this appeal are sustained. An examination of the evidence adduced shows that the circuit court was amply justified in concluding that the writing presented by claimant as evidencing the loan did not bear the signature of decedent and that the evidence of the witnesses testifying to the negotiation between claimant and decedent resulting in the alleged loan and the giving of the alleged writing, in connection with the other evidence before the court, lacked in probative force to establish the making of the loan as claimant asserts. The trial court saw
By the Court. — The judgment appealed from is affirmed.