Wolfrom v. Anderson
| Decision Date | 22 January 1947 |
| Citation | 249 Wis. 433,25 N.W.2d 880 |
| Parties | WOLFROM et al. v. ANDERSON et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
On motion for rehearing.
Motion denied.
For former opinion, see, 24 N.W.2d 881.-[By Editorial Staff.]
Joseph G. Page, of Janesville, for appellants.
McGowan, Geffs, Geffs & Block, of Janesville, for respondents.
The appellant moves for a rehearing on the ground that the decision is based on false statements of the trial court recited in its order dated June 15, 1946, that ‘the appellant consented to sale of the premises free from the lease,’ and ‘elected to accept damages if any, by reason of the sale free from the lease.'
As stated in the opinion of this court, 249 Wis. 437,24 N.W.2d 881, 883, these statements ‘are not in dispute in the record.’ We can only look to the record to determine the fact that the appellant seeks to put in controversy by his motion. If the statements of the trial court are not correct and counsel wished so to claim on the appeal he should have had the trial court delete them from the order or have settled a bill of exceptions containing the entire proceedings upon which the order was based. He did neither. He must stand on the record as he saw fit to leave it.
The record consists of the order of the trial court referred to and a bill of exceptions consisting of two transcripts, each of testimony of ‘S. S. Summers only,’ one of testimony given on January 23, 1946 and the other of testimony given on May 10, 1946.
It thus appears that the entire proceedings on either of the two dates were not incorporated in the bill of exceptions relating thereto. There is therefore nothing in the bill inconsistent with the statement of the trial judge inserted at p. 437 of the opinion and his statement must be taken as correct.
A recital in an order is equivalent to a finding. The rule applicable in case of findings and decisions of the trial court must be applied on appeals or this court will be acting other than as a court of review, to which its power on appeals is limited. As to the effect of findings and decisions of the trial court see Parke, Austin & Lipscomb v. Sexauer, 204 Wis. 415, at page 417, 235 N.W. 785;In re Will of Daniels, 225 Wis. 502, at page 510, 274 N.W. 435;Finkelstein v. Chicago & N. W. Ry. Co., 217 Wis. 433, at page 438, 259 N.W. 254.
The motion for rehearing is denied with costs.
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