Basile v. Fath

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPER CURIAM.
Citation202 N.W. 367,185 Wis. 646
Decision Date10 February 1925
PartiesBASILE v. FATH ET AL.

185 Wis. 646
202 N.W. 367

BASILE
v.
FATH ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1925.


On motion for rehearing. Motion denied.

For former opinion, see 201 N. W. 247.

[202 N.W. 367]

PER CURIAM.

It is urged by respondent on the motion for rehearing that the present decision in effect determines that the circuit court may not, in the furtherance of justice and in his discretion, grant a new trial. Such proposition, however, is not so determined in this case in the record here.

Several motions were interposed after verdict by the respective parties as recited in the statement of facts and included, among others by plaintiff, requests for a new trial because the verdict was perverse and the result of prejudice and bias and because of the improper argument to the jury.

The only matter discussed in the written decision by the trial judge upon such motions was the subject-matter of the improper remarks, and the granting of the new trial had no other ground or reason assigned for it than that. No costs were imposed by the trial court as a condition for the granting of the new trial. On the subsequent application in the nature of an attempted rehearing, costs of such motion and none other were allowed.

Under repeated decisions of this court, we must indulge in the presumption at least, from the failure to impose costs as a condition of the granting of a new trial, that the

[202 N.W. 368]

allowance of such was for that which is properly considered within the designation of an error occurring in the conduct of a trial as distinguished from any attempted exercise of judicial discretion. Siegl v. Watson, 181 Wis. 619, 627, 195 N. W. 867;Smith v. Taylor-Button Co., 179 Wis. 232, 234, 190 N. W. 999;John v. Pierce, 176 Wis. 220, 222, 186 N. W. 600;Lange v. Olson (Wis.) 202 N. W. 361; and Simpson v. Waukesha County (Wis.) 202 N. W. 366, both decided February 10, 1925.

The presumption thus arising that the granting of the new trial was for error, as distinguished from one in the exercise of the discretionary power of the court, is made conclusive from the record here showing that the court did not dispose of the matter upon any of the many other grounds asserted by plaintiff, but was, as clearly appears from all that was said and done by the trial court, because of that which was presented as a separate ground for such relief, namely, the argument of defendants' counsel.

The motion for rehearing is denied.

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10 practice notes
  • Chart v. General Motors Corp., No. 75-168
    • United States
    • United States State Supreme Court of Wisconsin
    • October 4, 1977
    ...on a jury verdict in its favor before seeking a new trial. As stated in the case of Basile v. Fath, 185 Wis. 646, 651, 201 N.W. 247, 249, 202 N.W. 367 " . . . (C)ounsel cannot sit in silence while being made the subject of abuse and vituperation by opposing counsel and speculate by their si......
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...reason of counsel's misconduct must promptly make proper objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 119 N.W.2d 451. In the Basile Case it was alleged that during the argument to the jury,......
  • MILLER v. MARSH, No. 5128
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 7, 1949
    ...speculate upon the result, and complain only when the verdict becomes unsatisfactory to him. Basile v. Fath, 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; Vanceburg Telephone Co. v. Bevis, 148 Ky. 285, 146 S.W. 420;201 P.2d 345Arkansas Cent. R. Co. v. Morgan, 129 Ark. 67, 195 S.W. 403, and Wolf......
  • Newbern v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • April 2, 1935
    ...at the time they are made and after the verdict assert them as ground for a new trial. Basile v. Fath, 185 Wis. 646, 201 N. W. 247, 202 N. W. 367. [5] This disposes of all the matters above mentioned laid as ground for a new trial except the statement of the husband of Mrs. Fisher made imme......
  • Request a trial to view additional results
10 cases
  • Chart v. General Motors Corp., No. 75-168
    • United States
    • United States State Supreme Court of Wisconsin
    • October 4, 1977
    ...on a jury verdict in its favor before seeking a new trial. As stated in the case of Basile v. Fath, 185 Wis. 646, 651, 201 N.W. 247, 249, 202 N.W. 367 " . . . (C)ounsel cannot sit in silence while being made the subject of abuse and vituperation by opposing counsel and speculate by their si......
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...reason of counsel's misconduct must promptly make proper objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 119 N.W.2d 451. In the Basile Case it was alleged that during the argument to the jury,......
  • MILLER v. MARSH, No. 5128
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 7, 1949
    ...speculate upon the result, and complain only when the verdict becomes unsatisfactory to him. Basile v. Fath, 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; Vanceburg Telephone Co. v. Bevis, 148 Ky. 285, 146 S.W. 420;201 P.2d 345Arkansas Cent. R. Co. v. Morgan, 129 Ark. 67, 195 S.W. 403, and Wolf......
  • Newbern v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • April 2, 1935
    ...at the time they are made and after the verdict assert them as ground for a new trial. Basile v. Fath, 185 Wis. 646, 201 N. W. 247, 202 N. W. 367. [5] This disposes of all the matters above mentioned laid as ground for a new trial except the statement of the husband of Mrs. Fisher made imme......
  • Request a trial to view additional results

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