Milwaukee National Bank v. Gallun

| Wis. | Dec 16, 1902

Dodge, J.

Our only serious doubt in this case has been as to the effect to be given the so-called finding of facts to the effect merely “that plaintiff wholly failed to substantiate his allegations by a preponderance of evidence.” This is in no fair sense a performance by the trial judge of his duty enjoined by sec. 2863, Stats. 1898, that he shall, in his decision, state the facts found by him. The fault is not, as urged by appellant, that the finding in question only states an opinion or conclusion, for that is the true function of the trial court, .namely, to state, not the evidentiary facts, but his conclusion therefrom upon the ultimate issuable facts tried before him. 'This finding, however, standing alone, fails to declare the issuable facts upon which such conclusion is announced. It •cannot be taken generally, for some of plaintiff’s allegations were established beyond controversy, — such as that the moneys in question were loaned, and that such moneys, or part of them, were used by defendant to pay off his mortgage to the insurance company. If, then, the finding is not to be taken as true according to its words, how far does it indicate action of the judicial mind? Such question ought never to -confront either a defeated litigant or the appellate court. Eeing presented, however, we must try to answer it, so far as we can do so with reasonable certainty, to- the end that the judgment be not reversed unless error affirmatively appear. It must, of course, be assumed that the trial judge intended to declare his conclusion upon some, at least, of the material .issues of fact; and we find that in a sort of preamble he describes plaintiff’s claim as to two of such issues, namely, thattire $800 was borrowed for use in paying off the insurance-company’s mortgage, and tbat defendant promised to execute-a mortgage to plaintiff when demanded. With some hesitation we conclude that the finding quoted' must be assumed to-apply to these contentions of plaintiff, and to negative them.. See Duncan v. Duncan, 111 Wis. 75, 76, 86 N.W. 562" court="Wis." date_filed="1901-06-20" href="https://app.midpage.ai/document/duncan-v-duncan-8187027?utm_source=webapp" opinion_id="8187027">86 N. W. 562. That conchrsion having been reached, and the finding being excepted to, we have made examination of the evidence, which discloses a conflict as to the transaction of borrowing these-moneys; as to whether they, or any of them, were loaned for the purpose of discharging the existing mortgage; and' whether there was any agreement to secure them by mortgage. Whether we might think the fair preponderance of this-evidence supports or refutes plaintiff’s claims, we cannot say that a negative finding is against any such clear and overwhelming preponderance as to justify its reversal under established rules. Hill v. American Surety Co. 112 Wis. 627, 631, 88 N. W. 642. Of course, in the absence of these facts,, there can be no right either to subrogation or to judgment requiring defendants to execute a new mortgage, and any discussion or decision upon the law applicable under other circumstances is unnecessary.

By the Court. — Judgment affirmed.