Schweickhart v. Stuewe

• Citation: 43 N.W. 722,75 Wis. 157
• Parties: SCHWEICKHART ET AL. v. STUEWE.
• Decision Date: 05 November 1889
• Court: United States State Supreme Court of Wisconsin

75 Wis. 157

43 N.W. 722

SCHWEICKHART ET AL.

v.STUEWE.

Supreme Court of Wisconsin.

Nov. 5, 1889.

Appeal from superior court, Milwaukee county; GEO. H. NOYES, Judge.Stark & Sutherland, for appellants.

Fiebing & Killilea, for respondent.

TAYLOR, J.

This was an action to recover for an alleged balance due to the appellants from the respondent upon a contract for the sale and delivery of stone. The respondentanswered, denying the plaintiffs' claim, and setting up a counter-claim. The case was tried by the court and a jury. Upon the trial the jury, under the order of the court, found a special verdict. The effect of the special verdict was to negative the plaintiffs' right to recover against the defendant for any amount claimed to be due them from the defendant, and to find in favor of the defendant upon his counter-claim the sum of $175. Upon the rendition of this verdict the plaintiffs and appellants first moved the trial court, upon the records and files in the case, the minutes of the court, and the testimony given on the trial of the case, and upon the special verdict of the jury, for judgment in favor of the plaintiffs for the amount of their claim, less the sum of $175, found due to the defendant on his counter-claim. This motion was denied by the court below, and thereafter the plaintiffs made a motion to set aside the verdict of the jury, and for a new trial. This motion was granted by the court, and the following order was made upon such motion: “The plaintiffs' motion in this action to set aside the verdict of the jury, and grant a new trial herein, having been duly argued before this court upon the 6th day of October, 1888, George E. Sutherland, as attorney for the plaintiffs, appearing in favor of said motion, and Fiebing & Killilea, as attorneys for the defendant, in opposition thereto, and the court being of the opinion that the answer to the fourth question in the special verdict returned by the jury was wholly unsupported by the evidence given on the trial of the cause, and having, on the 3d day of November, 1888, upon that ground, directed that the verdict be set aside, and a new trial granted herein, upon the condition that the plaintiffs pay the costs of the former trial, but no written order having been made or signed, it is now ordered that the plaintiffs' motion for a new trial be, and the same hereby is, granted, upon condition that the plaintiffs pay to the defendant the costs of the former trial, and that this written order be entered as of the 3d day of November, 1888.”

The plaintiffs have appealed to this court, first, from the order denying their motion for judgment in their favor upon the evidence and the special verdict, and also from the order setting aside the special verdict, and granting a new trial, and specifically from that part of the order granting a new trial which compels the plaintiffs to pay to the defendant the costs of the former trial. The learned counsel for the appellants claim that their first motion for judgment should have been granted, because, as it is claimed, that part of the special verdict which found against the plaintiffs' cause of action was wholly unsupported by the evidence, and, for that reason the trial court should have rendered judgment upon the special verdict, without regard to the finding of the jury upon that question.

We think the trial court was right in denying the first motion, for the reason that the special verdict would not support a judgment for the plaintiffs, and because the plaintiffs did not, upon that motion, move to set aside so much of the special verdict as stood in the way of the plaintiffs' right of recovery. It is clear to us that a judgment should not be rendered which is in conflict with the special verdict until such parts of the special verdict as are in conflict with the judgment rendered are set aside. It is claimed, however, by the learned counsel for the appellants that, if the court was satisfied that the findings in the special verdict which stand in the way of the plaintiffs' recovery are wholly unsupported by the evidence, it is the duty of the trial court to disregard such finding, and render judgment upon what remains of the special verdict, and upon such other facts as are established by the undisputed evidence in the case.

We do not think that the contention made by the learned counsel for the appellants is supported by the decisions of this court, and we find no authority in the decisions of other courts which sustains their contention. The utmost extent to which this court has gone in authorizing the trial courts to disregard the special verdict rendered by a jury, when such verdict is wholly unsupported by the evidence, is to set aside such verdict, and then, in its discretion, and not as an absolute duty, to enter judgment in accordance with the undisputed evidence in the case, or to set aside the verdict entirely, and grant a new trial. Gammon v. Abrams, 53 Wis. 323-326, 10 N. W. Rep. 479;Schweitzer v. Connor, 57 Wis. 177-182, 14 N. W. Rep. 922;McNarra v. Railway Co., 41 Wis. 69; Hutchinson v. Railway Co., Id. 541; Williams v. Porter, Id. 422-430; Ward v. Busack, 46 Wis. 407,...