Hart v. Godkin

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Hart v. Godkin, 122 Wis. 646, 100 N.W. 1057 (Wis. 1904)
• Decision Date: 18 October 1904
• Parties: HART v. GODKIN.

122 Wis. 646

100 N.W. 1057

HART

v.GODKIN.

Supreme Court of Wisconsin.

Oct. 18, 1904.

Appeal from Circuit Court, Vilas County; A. J. Vinje, Judge.

Action by Milo Hart against John Godkin. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Appeal from the circuit court for Vilas county. Action to recover $168.14, on facts alleged, to the effect that the plaintiff worked for defendant in a logging camp as foreman 12 months and 9 days at $60 per month, and 23 days as a scaler at $35 per month, and expended while in defendant's business, at his request, $104.60; that the indebtedness which thus accrued for expenditures and $638.58 to apply on wages was paid, leaving a balance of $168.14, sued for. The defendant put in issue the amount of plaintiff's claim, alleging payment of $747.43, and that it was in excess of all indebtedness which accrued growing out of the matters referred to in the complaint and counterclaiming as follows:

1. $41.87, on account of negligent overissue of orders to men whereby plaintiff lost that amount;

2. Damages for 29 days at $25 per day because of unnecessary absence for such time from the work plaintiff was employed to supervise;

3. $31.15, for goods intrusted to plaintiff, which he failed to account for;

4. A judgment indebtedness against plaintiff of $52.54;

5. $90 for board of plaintiff's wife and family.

It was admitted that according to the books there was an overpayment of $41.87. The proofs failed as to the $31.15. Payment to the plaintiff of $747.43, was admitted. When the case came on for trial the defendant, on a proper affidavit, moved for a compulsory reference, which was denied. Later such proceedings were taken, on account of alleged prejudice of the presiding judge, that another judge was called in to preside at a second trial. Before entering thereon a second motion for a compulsory reference was made, based on the record and an additional affidavit sufficient on its face to warrant granting the motion. The motion was denied by the court upon the ground that the denial of the previous motion precluded reconsideration of the matter. The result of the trial was a verdict for plaintiff for $163.04, though the total of the plaintiff's claim, as explained by the court in the charge to them, was $131.94. A motion for a new trial was made, based upon the claim, among others, that the verdict of the jury was perverse. Before such motion was decided plaintiff remitted from the verdict sufficient amount to reduce it to $110.80. Defendant's motion was then denied and judgment entered for the plaintiff.

The errors claimed to have been made, affecting the judgment, will be referred to in the opinion.Kreutzer, Bird & Rosenberry, for appellant.

Colman & Colman, for respondent.

MARSHALL, J. (after stating the facts).

The first error assigned is the refusal to consider the application for a compulsory reference because a previous motion therefor had been denied and precluded considering the matter again. The claim of appellant's counsel that the right to a reference under section 2864, Rev. St. 1898, is absolute must be ruled in favor of the respondent, this court having so held on such a proposition in McCormick v. Ketchum, 51 Wis. 323, 8 N. W. 208. The language of the statute “All or any of the issues in question * * * may be referred” etc. is permissive. It makes an application for reference a matter addressed to the sound discretion of the court. The vital word “may” is not used with reference to public rights or interests, or where the public or a third person have a claim de jure that the power shall be exercised. So it is not an instance, where by the rules of statutory construction, a permissive word should be given the mandatory significance of must or shall. Cutler, Guardian, etc., v. Howard, Guardian, etc., 9 Wis. 309;Market National Bank of New York v. Hogan, 21 Wis. 318;Dutcher v. Dutcher, 39 Wis. 651;Brawley v. Mitchell, 92 Wis. 671, 66 N. W. 799; Suth. on Statutory Construction, § 462. When a permissive word is not so used in a statute it must be taken in its literal sense. The privilege of the statute in question, is designed for the convenience of both the court and parties. Manifestly in some circumstances it would be so helpful in discovering and pointing out definitely the truth of a controversy, that a denial thereof would be an abusive discretion, but in many, probably in most cases, a reference is a greater aid to the court than to the parties.

The ruling idea with the learned circuit judge in denying the application for a reference, that the previous decision in the case precluded doing otherwise, is manifestly wrong. This court established a different doctrine in Hackett et al. v. Carter, 38 Wis. 394;Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343;Watson v. Appleton, 62 Wis. 269, 22 N. W. 475;Madden v. Kinney, 116 Wis. 561, 93 N. W. 535. In its early decision the rule was based on the statute, which provides that upon appeal from a judgment any intermediate order, involving the merits and not affecting the judgment, may be reviewed. That rule was held necessarily to give the trial judge a right, during the progress of a case in his court, to review his own decisions therein. Doubtless a judge having once, upon a fair discussion of the matter, decided a proposition, may properly refuse again to consider the same matter in the same case, under the same circumstances, because of the improbability of a different decision being reached, but not because of disability to do so on the doctrine of res adjudicata.

It follows that it was the duty of the court to exercise its discretion in respect to the second motion for a reference, by looking into the subject anew, or deciding the matter without doing so because of the improbability of a different result being reached. Probably the former course should have been pursued, under the circumstances of this case, since the second motion was made before a different judge than the first, the former having been called in to hear the case because of alleged prejudice of the one who presided when the first motion was made. The denial of the first motion may have been one of the occurrences which led to the belief that the first judge was prejudiced.

The learned counsel for the respondent insists that, conceding the law to be as before stated, it should not work a reversal because the motion was properly decided, or if not, no prejudicial error in denying it was committed. On that proposition this court has ruled the other way. In numerous instances it has been held that the refusal of the trial court to exercise its judicial discretion where, by the law, such exercise is required, constitutes reversible error upon appeal by the aggrieved party, regardless of what the result of such exercise may have been. Murray v. Buell, 74 Wis. 14, 41 N. W. 1010;Binder v. McDonald, 106 Wis. 332, 82 N. W. 156.

Further complaint is made because the respondent was permitted to support his claim as to the expenditure of various sums of money, aggregating $104.72, by his own testimony, though having no present remembrance of the items and depending solely upon a copy of the account kept by him on appellant's books, which had been turned over to the latter. Appellant's counsel argue that the paper did not satisfy any of the rules as regards a memorandum a witness may use to refresh his recollection. Respondent's counsel in offering the evidence probably had in mind the rule discussed and elucidated in Bourda v. Jones, 110 Wis. 52, 85 N. W. 671, and Nehrling v. Herold Co., 112 Wis. 558, 88 N. W. 614, and mentioned as elementary in Jones on Evidence, § 886. It may be stated thus: If a witness has no present recollection of a matter as to which he is called to give evidence, either independently of or with reference to a memorandum made by him, or by another and found by him on a verification thereof to be correct, but is possessed of a memorandum which he testifies he made and then knew that it was according to the facts, or was made by another and subsequently by him verified and found to be correct, when he had knowledge of the facts, so that he is able by a present reference to the...