Donner v. Genz
| Citation | 109 N.W. 71,129 Wis. 245 |
| Parties | DONNER v. GENZ. |
| Decision Date | 09 October 1906 |
| Court | United States State Supreme Court of Wisconsin |
We find no support for the contention that this court in cases of appeal to circuit courts, where the case is tried on the record of the justice of the peace before whom the original trial was had, is not governed by the rule expressed in the opinion, to the effect that since the findings of facts of the circuit court are not against the clear preponderance of the evidence they cannot be disturbed. None of the cases cited (Campbell v. Babbitts, 53 Wis. 276, 10 N. W. 400;Hassa v. Junger, 15 Wis. 598;Silvernail v. Rust, 88 Wis. 458, 60 N. W. 787) pass upon this question. So far as the subject was considered in those cases, it related to the question of whether the judgments appealed from were supported by the evidence. This is a wholly different inquiry from the one now suggested, which asks reversal of the judgment of the lower court in such cases on appeal to this court on the ground that the judgment is not supported by the weight of the evidence. Nothing in the provisions of section 3769, Rev. St. 1898, conflicts with the rule of this court that the conclusions of the trial court will not be disturbed on appeal to this court unless they are against the clear preponderance of the evidence. The language of the court in Fintel v. Cook, 88 Wis. 485, 60 N. W. 788, that this court in such cases is not prevented from ordering an affirmative judgment according to the weight of the evidence and the justice of the cause, must be construed in view of the case then before it upon which such judgment was ordered. It is obvious from the opinion that the court found in that case that there was no evidence to support the judgment appealed from, and that appellant, upon the uncontradicted facts, was entitled to judgment in his favor, and judgment was accordingly ordered. We deem the rule under which the case was determined in this court, namely, unless the findings of facts of the trial court are against the clear preponderance of the evidence they cannot be disturbed on appeal to this court, applicable to cases of this nature. The reasons for the rule are well presented in Ely v. Daily, 40 Wis. 52;Snyder v. Wright, 13 Wis. 689;Murphy v. Dunning, 30 Wis. 296;Johnson v. Goult, 106 Wis. 247, 82 N. W. 139.
The motion for a rehearing must be denied.
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