Beebe v. Minneapolis, St. P. & S. S. M. Ry. Co.

Decision Date15 December 1908
Citation137 Wis. 269,118 N.W. 808
CourtWisconsin Supreme Court
PartiesBEEBE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.


Appeal from Circuit Court, Rusk County; John K. Parish, Judge.

Action by A. G. Beebe against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. There was a directed verdict for plaintiff, and defendant appeals. Affirmed.

This action is brought to recover damages for the killing of live stock on two separate occasions. At the close of the testimony the court directed a verdict for the plaintiff for the amount demanded in his complaint as amended at the trial. Defendant assigns as error the refusal of the court to grant its motion for a directed verdict and the granting of the plaintiff's motion for such verdict. Defendant urges that its motion to direct a verdict should have been granted because the notices of loss failed to state where the animals were killed, and one of them failed to state that satisfaction was claimed for the loss sustained, and, further, that the jury, upon the facts that might be legitimately considered by it, would be warranted in finding a lesser amount than that which it was directed by the court to find.Leroy E. McGill, Alfred H. Bright, and John B. Sanborn, for appellant.

D. W. Maloney (W. H. Stafford, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

The defendant did not except to the order or ruling of the court directing a verdict. It moved for a new trial upon the minutes of the court, but failed to state any ground upon which it based its motion, and finally failed to take any exception to the order of the court denying the motion for a new trial. This being the state of the record, counsel for plaintiff urges that there is nothing before the court for review. If this court has authority to review the judgment in this case, it must be on one of the following grounds: (1) The motion for a new trial is sufficient in form, and exception to the order refusing to grant the same is unnecessary; or (2) the order or ruling of the court in directing a verdict may be reviewed without exception and without a motion being made for a new trial.

1. The decided weight of authority in this court is to the effect that, where a statutory motion for a new trial is made, it should state the grounds upon which the motion was based, at least as specifically as they are mentioned in the statute. Nisbet v. Gill, 38 Wis. 657;Sloteman v. Thomas & Wentworth Mfg. Co., 69 Wis. 499, 34 N. W. 225;Collins v. City of Janesville, 99 Wis. 464, 466, 75 N. W. 88;Williams v. Williams, 102 Wis. 246, 248, 78 N. W. 419;Howard v. Beldenville Lbr. Co. (Wis.) 114 N. W. 1114, 1117. No error can be predicated upon the refusal of the trial court to grant a new trial unless exception is taken to the ruling. Cotton v. Watkins, 6 Wis. 629, 634;Webster v. Modlin, 12 Wis. 369. We are unable to discover that the rule of practice enunciated in the two cases last referred to has ever been abrogated by statute or by subsequent judicial decision. Outside of this state such rule is generally in force. A collection of cases supporting it may be found in 2 Cyc. 1053, and 14 Ency. of Pl. & Pr. 972. The application of either of the preceding rules to the case at bar deprives the defendant of any benefit from its motion for a new trial. Section 3070, St. 1898, provides that on an appeal from a judgment this court may review any intermediate order which involves the merits and necessarily affects the judgment, appearing upon the record transmitted, whether the same be excepted to or not, and that it shall not be necessary to take any exception or settle any bill of exceptions to enable the Supreme Court to review any alleged error which would without a bill of exceptions appear upon the face of the record. This statute applies only to orders which are a part of the record proper without being incorporated in the bill of exceptions, and does not apply to rulings or orders of trial courts granting or refusing motions to direct a verdict. Kirch v. Davies, 55 Wis. 298, 11 N. W. 689;Holum v. Railway Co., 80 Wis. 303, 50 N. W. 99. Hence the appeal does not fall within the scope of this statute.

2. It is not necessary to make a ...

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8 cases
  • Fryer v. Campbell
    • United States
    • Wyoming Supreme Court
    • April 16, 1935
    ...Brown v. Hoppe, (Ga.) 118 S.E. 583. Assignments numbered 9 to 12 merely amount to a statement that the judgment is erroneous. Beebe v. Ry Co., (Wisc.) 118 N.W. 808. The assignments as to the insufficiency of pleadings were not grounds for a new trial. Komposh v. Powers, (Mont.) 244 P. 298; ......
  • Klotz v. Milwaukee Elec. Ry. & Light Co.
    • United States
    • Wisconsin Supreme Court
    • January 10, 1911 the absence of an exception to such order. Miller v. Kenosha E. R. Co., 135 Wis. 71, 115 N. W. 355;Beebe v. Minneapolis, St. P. & S. S. M. Ry. Co., 137 Wis. 269, 118 N. W. 808;Holum v. Chicago, M. & St. P. Ry. Co., 80 Wis. 299, 50 N. W. 99. That is the only order attempted to be reviewed......
  • Sullivan v. Minneapolis, St. P. & S. S. M. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • April 3, 1918
    ...562, 67 N. W. 1128. Perhaps certain language in Kopplin v. Quade, 145 Wis. 454, 130 N. W. 511, and Beebe v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 137 Wis. 269, 118 N. W. 808, justifies a contrary inference. There was no intention on the part of the court in those cases to distur......
  • Town of Emery v. Town of Worcester
    • United States
    • Wisconsin Supreme Court
    • December 15, 1908
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