135 Wis. 68 | Wis. | 1908
The appellant assigns as error the refusal of the court to give an instruction requested in his behalf and the giving of an instruction requested by the defendant. The bill of exceptions contains no instruction requested by the appellant and no ruling .of the court upon the subject; nor does it contain any instruction given at the request of the defendant or any exception thereto; nor does it contain the charge of the court. It is well settled that the charge of the court is no part of the record unless it be incorporated in the bill of exceptions. Geisinger v. Beyl, 71 Wis. 358, 37 N. W. 423; Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 50 N. W. 99. The certificate of the trial court states that the bill of exceptions contains “all the exceptions taken and rulings made in said cause.” The bill of exceptions when settled shall be signed by the judge — sec. 2873, Stats. (1898), — and when so signed is treated as a verity in this court. Deuster v. Milwaukee St. R. Co. 89 Wis. 191, 61 N. W. 766. This court can consider no error assigned unless it is part of the record or embodied in the bill of exceptions. Holum v. C., M. & St. P. R. Co. 80 Wis. 299, 50 N. W. 99; Lathrop v. Humble, 120 Wis. 331, 334, 97 N. W. 905.
Errors assigned which remain for consideration are the refusal of the court to direct a verdict for the plaintiff except
The motion to set aside the verdict and grant a new trial was addressed to the discretion of the court, and there is no ground for disturbing the ruling in that respect. It is not necessary to> refer to the evidence in detail. It is sufficient to sa.y that upon an examination of the record it is apparent that the trial court was fully justified in refusing to grant a new trial.
The amendment of the complaint asked at the conclusion •of the testimony was properly refused. It appears that the •only purpose of the amendment was to state a cause of action against the defendant for maintaining a nuisance in the public streets. This entirely changed the theory upon which the action had been brought and prosecuted. The issues •raised by the pleadings and to which the proof had been
“The general rule applicable to all actions is that the complaint must inform the defendant of the facts from which it ■is claimed his liability results, in order that he may prepare to mate his defense advisedly. A plaintiff should not be allowed to charge negligence in one respect and upon the trial prove negligence in an entirely different respect.”
We conclude, therefore, that there was no error in the rulings of the court appearing upon this record.
By the Court. — Judgment affirmed..