Maxwell v. Kennedy

• Decision Date: 17 December 1880
• Citation: 7 N.W. 657,50 Wis. 645
• Parties: MAXWELL v. KENNEDY.
• Court: Wisconsin Supreme Court

50 Wis. 645

7 N.W. 657

MAXWELL

v.KENNEDY.

Supreme Court of Wisconsin.

Filed December 17, 1880.

Appeal from county court, Dodge county.

E. M. Beach and E. P. Smith, for respondent.

Eli Hooker, for appellant.

ORTON, J.

We can find no error in the record, except in the giving of a wrong instruction, and in the refusal to give a proper instruction requested, in respect to the mitigation of damages. It may be that an order granting a new trial is reviewable, upon an appeal from the final judgment, as an “order involving the merits and necessarily affecting the judgment.” 4 Waite's Pr. 343. But this we do not decide. The better practice, however, would seem to be to appeal directly from such an order, and, in the event of its refusal, the expenses of the second trial would be saved, and the necessity of passing upon two separate records of two different counts on one appeal, as in this case, would be obviated. But in this case the exception to the order was afterwards waived by the appellant, in noticing the cause for trial, in voluntarily following it into another tribunal on change of venue, and going to trial therein without objection, and accepting costs as the terms of the change of venue, and in taking other affirmative action in the cause inconsistent with a reliance upon such exception. Montgomery v. Town of Scott, 32 Wis. 257; Carpenter v. Shepardson, 43 Wis. 406; Hilliard on New Trials, 576. The exception to the rejection of a juror was also clearly waived by afterwards going to trial with a jury of 10 by consent. The exceptions taken to the testimony are quite immaterial, and do not appear to rest on sufficient grounds. The county court instructed the jury as follows: “The defendant is allowed to show, in mitigation of actual damage of character, if he can, that at and before the time of the alleged slanders his general character was bad in respect to the crime charged, but this does not mitigate the exemplary, vindictive, or punitory damages.” The learned counsel of the appellant requested the court to charge as follows: “If the jury find that plaintiff had the reputation of being a horse thief, that may be taken into consideration to mitigate the damages, both compensatory and exemplary.”

Testimony had been introduced on the trial by the appellant tending to show that the general reputation of the plaintiff was bad in respect to the crime imputed in the slanderous words. There appears in the record another instruction as asked on behalf of the appellant, somewhat contradictory and inconsistent with the above instruction requested to be given, and substantially like the above instruction given, and the learned counsel of the respondent insists that thereby the exception of the appellant to the giving of the first and the refusal to give the second of the above instructions is waived. On the other side it is claimed in the argument that said contradictory instruction was not asked, and became a part of the record by mistake. We think this mistake is clearly obvious, for it is very unlikely that the learned counsel of the appellant would except to an instruction given, and at the same time ask that an instruction be given exactly like it, and then except to the giving of the one and the refusal of the other. We the more readily treat this as a mistake, because it relieves the learned county judge of the gross inconsistency of having given and refused the same instruction. The above instruction given was clearly erroneous in ruling that compensatory damages alone were the subject of mitigation by proof of bad character or reputation, and the above instruction asked was...