Wallis v. White

• Court: Wisconsin Supreme Court
• Writing for the Court: COLE
• Citation: Wallis v. White, 58 Wis. 26, 15 N. W. 767 (Wis. 1883)
• Decision Date: 31 May 1883
• Parties: WALLIS v. WHITE, IMPLEADED, ETC.

58 Wis. 26

15 N.W. 767

WALLIS

v.WHITE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from circuit court, Milwaukee county.

A. G. Weissert, for respondent, Walter W. Wallis.

A. C. Fraser, for appellants, John H. White, impleaded, etc.

COLE, C. J.

In order to make out his cause of action the plaintiff offered in evidence the contract counted on in the complaint, which was objected to, but the objection was overruled, and the instrument was admitted in evidence. This ruling is claimed to be erroneous. The objection to the admission of the contract in evidence is founded on the ground that it was first necessary to prove its signature or execution by the defendant before it was admissible. But this was a mistake. The pleadings were not verified, and at this stage of the cause the defendant had not denied, under oath, that he signed the instrument. When the plaintiff rested, the defendant was sworn in his own behalf. Among other things he was asked if he ever signed the contract sued on. This question was objected to and excluded. The defendant then asked leave of the court to file an affidavit denying his signature of the contract. The learned circuit court said in reply to this that the affidavit might be filed as an application in the case, but it could not be regarded as an affidavit within the usual time of pleading. As we understood this ruling--and as the subsequent history of the trial shows--the circuit court absolutely refused to allow the defendant's affidavit, denying his signature of the contract, to be filed, becauseit was not made and served within the usual time of pleading; therefore, it was not a compliance with section 4192, Rev. St. This seems to have been the sole ground for refusing to grant the application. The learned circuit judge did not exercise his discretion in the matter and refuse to allow the affidavit to be filed at that stage of the action, because it would work an injury to the plaintiff, or would not be in furtherance of justice; for, in the view the circuit judge took of the statute, he had no power to allow the application, holding, as he did, that the affidavit denying the signature must be filed within the usual time for pleading. But this was a mistaken view of the statute. That the circuit judge had the undoubted power to allow the affidavit to be filed, even at that stage of the action, so as to raise the issue whether the defendant had or had not signed the contract sued on, seems to us plain. Had the circuit judge exercised his discretion as to allowing the affidavit to be filed, this court could only consider whether there was such an abuse in the exercise of that discretion as would justify it in overruling his decision. But as the case now stands the simple question presented is whether the circuit judge was right in his construction of the...