Becker v. Holm

• Decision Date: 23 June 1898
• Parties: BECKER v. HOLM ET AL.
• Court: Wisconsin Supreme Court

100 Wis. 281

75 N.W. 999

BECKER

v.HOLM ET AL.

Supreme Court of Wisconsin.

June 23, 1898.

Appeal from circuit court, Eau Claire county; E. B. Bundy, Judge.

Action by John Becker, assignee of H. G. Talbot, against Nils Holm, impleaded with John S. Smith and L. C. Garrison. There was a verdict for plaintiff, which was set aside on motion as to defendant Holm, and a new trial was granted, and from a judgment against him for costs plaintiff appeals. Affirmed.

Action to recover $2,000 as the purchase price of a steamboat alleged to have been sold by plaintiff's assignee to defendants. Each defendant interposed a separate answer. The verdict was rendered for the full amount claimed, which was set aside on motion, as to defendant Holm, and a new trial granted, no reason being stated in the order, though the reason given in an opinion filed is that the verdict was unsupported by the evidence. Plaintiff duly excepted to the order. On the case coming on again for trial, plaintiff neglected to further prosecute and thereupon a nonsuit was granted and judgment for costs rendered in favor of Holm, from which this appeal was taken.Doolittle & Shoemaker, for appellant.

Wickham & Farr, for respondents.

MARSHALL, J. (after stating the facts).

The sole question for consideration on this appeal is, did the trial court err in setting aside the verdict as to respondent Holm, and granting a new trial, without the imposition of costs as terms? That turns on what ground the court acted in the matter; if merely because the verdict was contrary to the evidence, then the order was erroneous; if because the verdict was perverse, that is, substantially dishonest, the order was properly granted. Smith v. Lander, 48 Wis. 587, 4 N. W. 767;Pound v. Roan, 45 Wis. 129. No reason for the order is stated therein; therefore, looking to it alone, the presumption is that the verdict was deemed by the trial court, against the weight of evidence. Schraer v. Stefan, 80 Wis. 653, 50 N. W. 778;Garny v. Katz, 86 Wis. 321. But there is a bill of exceptions, regularly settled, which properly includes the opinion filed by the judge in granting the motion, in which it is stated distinctly that his conclusion was that there was no evidence to support the verdict. The reason thus assigned for the order is before us for consideration as much as the order itself and exception thereto. Without a bill of exceptions, such order could not be reviewed, as it is not one involving the merits...