Hite v. Keene
| Decision Date | 05 April 1912 |
| Parties | HITE v. KEENE. |
| Court | Wisconsin Supreme Court |
On motions for rehearing and for modification of mandate. Mandate modified, and rehearing denied.
For former opinion, see 134 N. W. 383.
The bill of exceptions in this case contained the following colloquy between counsel and the court:
“Mr. Hoyt: We might just as well offer these other depositions. They relate to the legal point. We offer the deposition of Mr. Privat.
Court: That is as to the law?
Mr. Hoyt: Yes.
Court: Mr. Fawsett and Mr. Flanders, now just a moment. (The court and counsel thereupon consulted in an undertone out of the hearing of the reporter.)
Mr. Hoyt: It is stipulated that this question of the statute of limitations and the evidence is purely a matter of law to be decided by the court.
Court: Gentlemen of the jury, some matters are coming up now which are purely matters of law, and you certainly would not be interested in it, and there is no good reason why you should be kept here. You may be excused until to-morrow morning at half past 9. Please report at that time.”
This colloquy was not printed in the case, but it did contain the following: “It is stipulated that the question of the statute of limitations and the evidence about to be offered in relation thereto were purely matters of law to be decided by the court.”
No reference to the stipulation was made in the briefs or on the oral argument, and no assertion was made that the parties had agreed that some of the issues of fact should be tried by the court, and the remaining issues only passed upon by the jury. We had before us only what the reporter heard. We do not regard that part of the colloquy as meaning anything more than that certain questions of law were involved in relation to the admission of the evidence contained in the depositions which defendant proposed to offer, and that, inasmuch as these questions would have to be decided by the court, the presence of the jury was unnecessary while they were being passed upon.
However, since the case was decided, counsel have filed a stipulation in this court, in which they recite that they agreed that “all questions whether of fact or law involved in such issue (that arising on the statutes of limitation which were pleaded) should be determined by the court,” and we have concluded to treat the same as part of the record. The appellant moved to modify the mandate so as to order judgment on the verdict for the plaintiff. The respondent moved for a rehearing because he conceived that he was entitled to an affirmance of the judgment, under the stipulation, on the decision of the circuit judge, and, further, because prejudicial error was committed against him on the trial which would entitle him to a new trial, and, inasmuch as the causes of action sued on did not survive, all right of action was lost. The appellant's motion cannot be granted. We held in the former opinion that there was sufficient evidence in the record to sustain a finding by the trial court that the Swiss statute of limitations destroyed the right as well as the remedy, and we see no reason for receding from that position. The circuit court has not made any findings of fact favorable to the plaintiff on that point. The court submitted nothing to the jury except the assessment of damages. Under the stipulation, it may be that no other question should have been submitted. There is language in the charge which would indicate that at the time it was given the court was of the opinion that the plaintiff was not barred from recovery by the statute of limitations. There was nothing to preclude the court from changing its mind before the entry of judgment. By virtue of the stipulation the judgment was to be based on the verdict of the jury supplemented by the findings of fact by the court on the questions reserved from the jury and the conclusions of law drawn therefrom.
[1] Whether the court has found sufficient facts to warrant the entry of a judgment...
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