105 Wis. 239 | Wis. | 1900
The errors claimed are all based upon rulings made upon the trial. Prior to the argument the respondent moved to strike out the bill of exceptions because ■not settled within two years from the date of the judgment, and this motion must first be disposed of. It appears that judgment was perfected November 25, 1895, but no notice ■of entry thereof was ever given. A proposed bill of exceptions was served July 29, 1891. Amendments were pro
There is no statute thus limiting the time within which a bill of exceptions must be settled, but reliance is placed upon the cases of Cameron v. Sullivan, 15 Wis. 510, Evans v. St. Paul F. & M. Ins. Co. 54 Wis. 522, and Miller v. State, 77 Wis. 271. That there is language in these cases apparently justifying the contention cannot be denied. In Cameron v. Sullivan an appeal had been taken within the two years, but the bill of exceptions was settled after the expiration of two years, and it was stricken out on the sole ground that there was no statute or rule of court authorizing the settling of the bill “ after such a lapse of time.” In Evans v. St. Paul F. & M. Ins. Co. it was said that “ Avhen the time for appealing has expired the circuit court loses all power to enlarge the time for settling the bill of exceptions in the case.” It is to be noted that it did not appear in that
Some light is also thrown upon the subject by examination of the ancient practice. Prior to the passage of statutes regulating the practice it was universally the rule that the settlement of the bill must be made before the close of the trial term, yet it was always held that this time might be extended by order of the court, or by agreement of the parties waiving the settlement at the term. 3 Ency. of Pl. & Pr. 465-469, and notes. These rulings could never have been made if the question were simply one of power or jurisdiction. In view of these well-established principles, and the absence of any mandatory limitation by statute, we are inclined to hold that the language of the court in Evans v. St. Paul F. & M. Ins. Co., supra, indicating an absence of power to settle a bill of exceptions after the two years has expired, is inaccurate, and was intended rather as establishing a rule of practice than as denying jurisdiction. As a rule of practice, only to be departed from when both parties stipulate to waive it, we think it is entirely reasonable, and we should not feel called upon to disturb it; but, as an absolute denial of power, we are unable to agree with it. This conclusion results necessarily in a denial of the motion, on the ground that the-parties stipulated to the settlement after the two years had expired, and hence waived the rule.
Passing to the merits of the case, we find several reasons why the judgment must be reversed:
1. The plaintiff called a witness who was well acquainted with the bridge, and asked him as to the general condition of the approach, where the accident happened, at the time of the accident, for the express purpose of showing that the city should have had notice of the defect in question. This was proper, under repeated rulings of this court. Conrad v. Ellington, 104 Wis. 367; Olson v. Luck, 103 Wis. 33. The court sustained an objection to the question, and remarked: “We know when that east approach was built. It is useless*244 to talk about that being old and rotten along tbe-re, or anything of the kind. Any verdict that the jury would find that is contrary to what I know to be the fact from my own personal knowledge I would not allow to stand for a minute.” Other rulings and remarks of a similar character were made by the court as the case proceeded. It seems almost unnecessary to say that such remarks as those quoted above are erroneous, because they are a distinct invasion of the province of the jury.
2. The defendant called the physician who treated the plaintiff after the accident, and was allowed to show by him (against objection and exception on the ground of privileged communication) all that the plaintiff disclosed to him, and all that he discovered by examination of her person, to enable him to prescribe for her. This was error, under the statute (sec. 4075, Stats. 1898). Boyle v. N. W. M. R. Asso. 95 Wis. 312; McGowan v. Supreme Court I. O. F. 104 Wis. 173.
3. One of the defendant’s witnesses who had testified as to the condition of the bridge was asked upon cross-examination whether ho had not been convicted of a criminal offense, and the court sustained an objection to the question, remarking: “You have not shown only by-one man, a stranger out in the country, that anybody saw it down during that time; so it isn’t necessary to ask this man whether he has been convicted of a criminal offense or not. It would not affect his testimony, unless it was a felony, and then it would be a question for the jury.” The sustaining of the objection may have been proper, under the rule laid down in Sieber v. Amunson, 78 Wis. 679, because the question did not fix time and place; but it was not objected to nor ruled out on that ground, but upon the general ground that it was inadmissible. It was certainly proper to prove the fact by proper questions upon cross-examination under the statute (sec. 4073, Stats. 1898); and attention is' now called to the incorrect ground upon which the ruling was based simply in order to avoid confusion upon a new trial.
By the Court.— Judgment reversed, and action remanded for a new trial.