Olson v. Solverson

• Citation: 71 Wis. 663,38 N.W. 329
• Parties: OLSON v. SOLVERSON.
• Decision Date: 12 May 1888
• Court: United States State Supreme Court of Wisconsin

71 Wis. 663

38 N.W. 329

OLSON

v.SOLVERSON.

Supreme Court of Wisconsin.

May 12, 1888.

Appeal from circuit court, Waukesha county.

This is an action for damages for an alleged breach of a promise made October 26, 1885, whereby the defendant, Martin Solverson, agreed to marry the plaintiff, Anna M. Olson, and then refused. The answer was a general denial. Upon the trial the jury returned a verdict in favor of the plaintiff, and assessed her damages at $1,500. From the judgment entered upon such verdict, the defendant brings this appeal.Small & Wittig, for appellant.

Jones & Carpenter, for respondent.

CASSODAY, J.

The verdict is abundantly sustained by the evidence. In fact, the promise and refusal are both conceded. The several errors assigned will be considered.

1. Two juries were out, and one juryman had been excused at the time the cause was called for trial. This left but eleven names in the box, and the defendant objected to proceeding with the trial for that reason. It was never intended that the business of the court should be suspended merely because the regular panel of jurors should be thus exhausted. On the contrary, the statutes expressly provide that “when, by reason of challenge or otherwise, a sufficient number of jurors, duly drawn and summoned, cannot be obtained for the trial of any cause, civil or criminal, the court shall cause jurors, duly qualified, to be returned from the by-standers, or from the county at large, to complete the panel for such trial, and the court may, in its discretion, order a special venire to issue for that purpose, or such jurors may be returned by the sheriff * * * without writ.” Section 2538, Rev. St. The lack of jurors was supplied as thus prescribed. The three peremptory challenges to which each party is entitled apply to a full panel of jurors thus called, as well as to the regular panel. Section 2851, Rev. St.; Gilchrist v. Brande, 58 Wis. 184, 15 N. W. Rep. 817. The exceptions thereto must be overruled.

2. The plaintiff testified, in effect, that she was at Mrs. Rockwell's, October 26, 1885; that her sister then lived there; that the defendant was there on that day, and agreed to marry her. She was then cross-examined by the defendant's counsel, and, after being told to get down to the agreement made with the defendant, she was asked: “Who was there besides you and Martin? Answer. No one.” Thereupon the sister testified to the effect that the plaintiff and defendant were both there, and then, in answer to the question whether there was anything unusual in the appearance of either, which was objected to, she stated what was said between her and the plaintiff, but the same was immediately stricken out by the court. Assuming that the admission of such conversation was error, not cured by striking out the testimony, which it would be difficult to maintain, yet, as the defendant conceded the engagement and his refusal to marry, it affected no substantial right of the defendant, and hence is no ground for reversal. Section 2829, Rev. St.

3. The mere fact that the plaintiff's counsel, in opening the case to the jury, stated, in effect, that judgment had been taken in the action by default at a former term, when the defendant's counsel had just before stated the same fact, is not ground for reversal. Nor do we find anything in the remarks of the counsel characterizing the evidence which should work a reversal.

4. Numerous exceptions are taken to the remarks of the learned judge who presided at the trial. But the right to preside at all necessarily includes, within certain limits, a discretionary right to direct the proceedings. He must necessarily rule upon questions presented; the admission or rejection of testimony; indicate the line of examination or cross-examination to be pursued; and to limit or restrict the same when unnecessarily extended, or when there is any departure. It is impossible to perform such duties without oral communications which may at times characterize the question or testimony, or some part of it. It was certainly not error for the court, in effect, to announce that it could not wait until a certain jury should come in before proceeding with the trial; nor to inquire the object...