Wolf v. Green Bay, Oshkosh, Madison & Southwestern Railway Co.

140 Wis. 337 | Wis. | 1909

SiebeckeR, T.

The objection to the entry of judgment because no order appears of record directing the clerk to enter judgment cannot prevail. This is a proceeding in a court of general jurisdiction and no question of want of jurisdiction is raised. Under such circumstances the rule is that, though every step necessary to regularity may not appear of record, the presumption, in the absence of a contrary showing, is that, the necessary steps were taken for the entry of judgment. Falkner v. Guild, 10 Wis. 563; In re Marchant's Estate, 121 Wis. 526, 99 N. W. 320. It does not appear that the alleged irregularity in any way affected the substantial rights of the appellant. He is therefore in no position to complain. Sec. 2829, Stats. (1898).

Nor is the fact that the rights of the mortgagee in the land taken were not adjudicated good ground for disturbing the judgment on this appeal, for it appears that the parties by stipulation agreed that the mortgage claim on the land should be paid out of the amount recovered. If any action is required to protect appellant as to the payment of this incum-brance, it can readily be secured upon application to the court-for a direction in the matter.

The objection to the opinion evidence of witnesses testifying to the damages caused to the respondents’ land adjoining the strip taken is twofold in character. It is claimed that the questions propounded were improper and that the-witnesses were not qualified to give opinions on the subject of inquiry. The appropriate and correct inquiry is whether respondents’ lands adjoining the strip taken were depreciated in market value by the taking of the strip. The court in submitting the issue to the jury informed them that the respondents could recover no damages for injury to lands not taken, unless it appeared that they were depreciated in market value by the taking of the strip and its use for railroad purposes. The questions propounded to the witnesses were general in form and do not specifically embody this form of inquiry. It appears, however, from what took place at the trial that the questions propounded comprehended this idea and that counsel and witnesses understood that the word “damage,” as employed, referred to the depreciation in the market value of that part of respondents’ lands not taken. This is confirmed by appellant’s counsel’s omission to malee any inquiry of the witnesses as ti> what was embraced in their opinion on the subject. His failure to pursue the matter was evidently due to the fact that counsel, court, and jury understood the witnesses were expressing their opinion of the depreciation in the market value of the lands not taken. We do not find that the irregularity complained of operated to the appellant’s prejudice.

The witnesses’ qualification to give opinion evidence on this subject was sufficiently shown. They showed familiarity with the value of lands and the probable injury to such lands from division by a railroad and its operation. The grounds of their opinions were sufficiently disclosed to the jury.

It is urged that the remarks of respondents’ counsel to the jury were prejudicial. We have examined them and find no gTounds for an inference that they in any way affected the result on the trial'.

There is no reversible error in the record:.

By the Court. — Judgment affirmed.