Wheeler v. Russell

• Citation: 67 N.W. 43,93 Wis. 135
• Parties: WHEELER ET AL. v. RUSSELL ET AL.
• Decision Date: 14 April 1896
• Court: United States State Supreme Court of Wisconsin

93 Wis. 135

67 N.W. 43

WHEELER ET AL.

v.RUSSELL ET AL.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by William Wheeler and others against R. R. Russell and others.

This was an action to recover the price of a car load of wheat shipped by the plaintiffs at Minneapolis, Minn., to the defendants at Kaukauna, Wis., February 19, 1894, at the agreed price of $485.07. The answer was, in substance, a general denial. Upon trial before a jury the plaintiffs had a verdict for $506.85. On the following day the defendants moved to set aside the verdict and for a new trial, “for the reason that the verdict was contrary to the law and the evidence, and for the further reason that the defendants have a good defense to the merits, which evidence had been discovered since the verdict was rendered.” Eleven days afterwards the plaintiffs perfected judgment on the verdict for the amount thereof, with costs. The defendants moved to set aside the judgment on the ground that it had been entered while the motion for a new trial was pending, without the knowledge or consent of the court or defendants, and that the clerk had no right to enter it. The court vacated the judgment accordingly, at the same term during which the action was tried, and on the same day entered an order “on a motion of defendants by their attorney, no one appearing in behalf of the plaintiffs, that the verdict of the jury be set aside, and a new trial granted, on the ground of a mistake on the part of the defendants,” upon payment of the costs of the trial and attorneys' fees allowed and taxed at $75, and granting leave to the defendants to serve an amended answer within 20 days. There was a bill of exceptions, purporting to contain all the evidence and the charge of the court, to which there was no exception. The bill of exceptions is certified as containing everything that had been filed in the action and appearing of record, and all the evidence produced at the trial, as well as the charge of the court, and “all the proceedings had upon the trial and thereafter, and all the facts and papers and records upon which the orders granting a new trial and setting aside the verdict and judgment were made.” The plaintiffs appealed from both orders. Reversed.Brown & Buffington, for appellants.

A. A. Nugent, for respondents.

PINNEY, J. (after stating the facts).

The record in this case shows affirmatively upon what grounds the court acted in making the orders appealed from, so that no presumption in favor of the orders can be indulged in outside of what is disclosed by the record. If they are not justified by what appears from the record, they must be reversed. There is nothing in the record to show that the defendants made any mistake in the conduct of the action, or to show what the court regarded as such. The order setting aside the verdict and granting a new trial does not, upon its face, show, as it should, upon what affidavits, records, and papers it was granted, as required by Cir. Ct. Rule 11, § 6. Glover v. Grain Co. (present term) 66 N. W. 799. The defendants at the trial sought to show that the wheat in question was damaged and unmerchantable, by reason of which they had been greatly injured, without having set up such defense by way of counterclaim or otherwise, and for that reason the evidence offered was properly rejected. It was then too late to make application to amend the answer in this respect, for to have done so would have been to introduce an entirely new defense, or to set up for the first time a cause of action by counterclaim, changing substantially the defense. Rev. St. § 2830; Shernecker v. Thein, 11 Wis. 556;Stevens v. Brooks, 23 Wis. 196. No application to amend having been made, a verdict was rendered against the defendants. The record does not show that any error of law or of fact intervened to the prejudice of the defendants at the trial, and it is not claimed that there was any such error. It is probable that by the mistake referred to in the order granting a new trial the court intended the failure of the defendants to have properly pleaded the defense in respect to the condition and quality of the wheat, and we conclude from the record that it has reference to the defense to the merits, the evidence of which had been discovered after the verdict, as stated in the motion for a new trial. It does not appear that the defendants filed but the one motion for a new...