41 Wis. 75 | Wis. | 1876
The testimony in tbe case bas not been preserved, by a bill of exceptions; ■ and bence, we bave nothing before us but tbe pleadings, verdict and judgment.
As in tbe case of McNarra v. Railway Co., ante, p. 69, the jury failed to pass upon tile question of tbe alleged contributory negligence of tbe plaintiff. They also failed to find tbe number of acres of the lands injured, or the aggregate amount of such injury. These omissions would be fatal to tbe judgment, were it not for tbe rule that every reasonable presumption will be made in support of tbe judgment of a court of competent jurisdiction. Under that rule, it must be presumed in the present case (the evidence not having been preserved), that there was no evidence tending to show negligence on the part of the plaintiff, or that the uncontradicted evidence proved that he was not negligent; and that each averment of the complaint necessary to support the judgment, unless negatived by the verdict, was proved on the trial. Farrell v. Drees (decided herewith). Such presumption is limited only by the complaint and the verdict. Both of these limitations, however, are operative in this case. The bill of particulars (which is really part of the complaint) specifies that about acres of land was burned. We can give no effect to the qualifying word, but must hold that the plaintiff is limited by his pleading to 9J acres. The court gave him judgment for injuries to 11% acres at $25 per acre, or $50 more than he claimed. We can presume that he proved that 9-|- acres were injured by the fire to the extent of $25 per acre. But the rule does not permit us to go beyond that. Farrell v. Drees, supra.
The special verdict acquits the defendant of negligence in respect to the fire of May 9, 1874; and it cannot be presumed against the verdict that defendant was negligent in that behalf. It was error, therefore, to include in the judgment damages for injuries caused by that fire.
It follows that the judgment cannot be upheld for a greater
In accordance with the practice adopted in Kavanaugh v. Janesville, 24 Wis., 618, and in Bigelow v. Doolittle, 36 id., 115, tbe judgment of this court will be, that if the plaintiff remit the excess of the judgment of the circuit court beyond the amount above specified, and pay the costs of this appeal, the judgment will be affirmed. Failing to do so, the judgment must be reversed, and a new trial awarded.
By the Gov/rt. — So ordered.
