Duffy v. Hickey
| Decision Date | 01 March 1887 |
| Citation | 32 N.W. 54,68 Wis. 380 |
| Parties | DUFFY v. HICKEY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Fond du Lac county court.
F. F. Duffy, for respondent.
D. W. C. Priest, for appellant.
This action was tried in the county court of Fond du Lac county. It was an action upon an account for work and labor, and for goods sold and delivered. On the part of the defendant a counter-claim was set up. The case was referred to a referee to hear, try, and determine. No question is made upon the order of reference. The referee tried the case, and found in favor of the plaintiff, and directed judgment in his favor for the sum of $208.51, and costs of the action. Upon the filing of the report of the referee the appellant filed an affidavit of prejudice, and asked that the cause be removed on account of the prejudice of the county judge. This motion was denied, and exception taken. Exceptions were taken to the report of the referee, and the county court was asked to modify the report in various respects, and also to set aside the report and re-refer the case. All exceptions and objections to the report were overruled by the county court, and the report of the referee was in all things affirmed, and judgment entered as directed by the referee. Exceptions were also taken by the appellant to the bill of costs as taxed by the clerk, and affirmed by the court on motion to set aside the taxation. After judgment was entered, the defendant appealed therefrom to this court.
It is alleged that the court erred in not granting the appellant's motion to change the place of trial on account of the prejudice of the judge. We think the motion came too late, after the cause had been referred, and the referee had made his report. This court determined this question against the appellant in Cairns v. O'Bleness, 40 Wis. 469-477;Swineford v. Pomeroy, 16 Wis. 553.
The learned counsel for the appellant claims that the court erred in refusing to set aside the report, and re-refer the action, because he alleges the minutes of the referee in regard to certain evidence had been changed. Had it been satisfactorily shown that the minutes had been changed, it would have been no ground for setting aside the report and ordering a new trial. The remedy in such case would be to correct the minutes of the evidence in accordance with the facts. We think, however, that the appellant failed in showing that the evidence as reported by the referee was not a correct report. The preponderance of the evidence seems to us to be in favor of the minutes of the referee.
The learned counsel for the appellant claims that the court should have modified the report by finding that the defendant be allowed $202.35 as a counter-claim against the respondent, which was wholly disallowed by the referee. This was a claim for taking care of some sheep, a horse, and two heifers of the plaintiff while the plaintiff was away from his home and farm. On the part of the respondent it was claimed that the defendant agreed to take care of said stock for one-half of the wool of the sheep, and one-half of the lambs, and that he was to have the use of the cow for keeping her. Upon this question the evidence was somewhat in conflict; but it is sufficient upon this appeal that it does not appear that the clear preponderance of the evidence is in favor of the claim made by the appellant.
The appellant also claims that he ought to have been allowed $50 for the board of the plaintiff for five months, and instead thereof the referee allowed the plaintiff $50 and his board for working for the defendant during said five months. This question was purely a question of fact. The evidence on the part of the plaintiff showed that the...
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Corbett v. Great Northern Railway Co.
...recovered by the successful appellant; the costs of the former trial abide the event of the suit. Gray v. Gray, 11 Cal. 341; Duffy v. Hickey, 68 Wis. 380, 32 N.W. 54; Corbett Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054, 23 N.D. 1, 135 N.W. 665. BRUCE, J. GOSS, J., did not participate. ......
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Hogan v. City of La Crosse
...attention on appeal where it has been corrected by the voluntary act of the favored party before the appeal was perfected. Duffy v. Hickey, 68 Wis. 380, 32 N. W. 54;Reinig v. Hartman, 69 Wis. 28, 32 N. W. 639;Littlejohn v. Turner, 73 Wis. 119, 40 N. W. 621;Insurance Co. v. Decker, 74 Wis. 5......
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State ex rel. Winchell v. Circuit Court of Waukesha Cnty.
...the decisions. Swineford v. Pomeroy, 16 Wis. 553;Cairns v. O'Bleness, 40 Wis. 469;Grobman v. Hahn, 59 Wis. 93, 17 N. W. 545;Duffy v. Hickey, 68 Wis. 380, 32 N. W. 54;Peterson v. Lumber Co., 93 Wis. 500, 67 N. W. 1118. Hence, of course, that order, when made, was beyond the jurisdiction of t......