Campbell v. Babbetts

• Decision Date: 03 November 1881
• Citation: 10 N.W. 400,53 Wis. 276
• Court: Wisconsin Supreme Court
• Parties: CAMPBELL AND OTHERS v. BABBETTS.

53 Wis. 276

10 N.W. 400

CAMPBELL AND OTHERS

v.BABBETTS.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from county court, Winnebago county.

Geo. W. Burnell, for respondents.

Gabe Bouck and John W. Hume, for appellant.

TAYLOR, J.

This action was commenced in justice's court. In that court a jury trial was had. The jury returned a verdict in favor of the defendant for six cents damages, upon his counter-claim set out in his answer, and judgment was rendered for costs against the plaintiffs. The plaintiffs appealed to the county court of Winnebago county, but made no affidavit to entitle them to a new trial in that court. The case was tried in the county court upon the return made by the justice, and judgment was rendered in favor of the plaintiffs, reversing the judgment of the justice, and adjudging that the plaintiffs recover of said defendant their costs, taxed at $39.19. From this judgment of the county court the defendant appeals to this court.

It will be seen, from an examination of the proceedings and evidence returned to the county court by the justice, that the plaintiffs claimed $50.95, and if they recovered upon the merits they would have been entitled to recover that sum. In their appeal to the county court they make an affidavit for a new trial, and ask the appellate court to reverse the judgment of the justice's court for errors appearing in the record, or because the verdict and judgment in that court were not supported by the evidence. An appeal from a justice's judgment, when the judgment against the appellant is less than $15, exclusive of costs, does not entitle the appellant to a new trial in the appellate court. The appellate court must proceed to retry the case upon the record and evidence returned by the justice. Section 3767, Rev. St. 1878, directs that “the appeal shall be heard on the original papers and the return of the justice, containing all the material evidence and his rulings in the action, in case the judgment, exclusive of costs, does not exceed $15, except as otherwise provided in the next section. Section 3769 provides that “upon the hearing of the appeal, when there is no new trial in the appellate court, such court shall give judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits, and may, if necessary for that purpose, amend the pleadings therein, and in giving judgment may affirm or reverse the judgment of the court below in whole or in part, either as to damages or costs, or both, as to any or all the parties, and for errors of law or fact. To the copy of every such judgment, upon an appeal, there shall be annexed the return upon which it was heard, which shall be filed with the clerk of the court, and constitute the judgment roll; and judgment shall be executed by process of the appellate court.”

Under these provisions of the statute it is evident that the appellate court may reverse the judgment of the justice for errors of law appearing from the return, and also upon the merits of the case, if the evidence does not support the judgment. In the case at bar it does not appear from the record upon what ground the judgment of the justice was reversed. It is stated by counsel that reversal was for irregularity in the entry of the title of the action in the justice's docket; it appearing from the return of the justice that the title as entered in the docket was “ James D. Campbell et al. v. Albert Babbetts. ” Notwithstanding this assertion of the counsel, we think the respondents are entitled to call upon this court to examine the evidence in the record in order to determine whether the judgment was not properly reversed, because the verdict and judgment in the justice's court were not sustained by the evidence.

The learned counsel for the respondent insists that, in reviewing the findings of the county court upon the evidence returned by the justice, we must proceed upon the rule which this court has laid down for its guidance in reviewing the decisions of the circuit courts upon questions of fact determined by them upon a trial in such courts, and that we should not reverse the judgment of the county court unless it appears that such judgment is clearly against the preponderance of the evidence in the case as returned by the justice. We think this rule is wholly inapplicable to the case. The verdict and judgment of the justice being in favor of the defendant, upon evidence which is conflicting and somewhat contradictory, the same rule must apply to the county court, upon appeal from the justice's court, in reviewing the judgment of the justice upon questions of fact, as this court has applied in reviewing such questions upon an appeal from a judgment of the circuit court rendered upon a trial by a jury in that court.

The appellate court, upon the hearing of an appeal from a justice's court, when no new trial can be had, can only reverse the justice's judgment upon questions of fact litigated in the justice's court, when the judgment...