Dunbar v. Bittle

By the Court, Cole, J. We suppose the finding of the facts by the referee, and which finding is confirmed by the court, as in this case, must be considered as conclusive as the verdict of a jury. It appears that there was evidence offered before the referee tending to show that Bittle agreed to take the house and complete it in consideration of having ten dollars endorsed upon his note left with Castle, By the original agreement Allison was to have this note delivered to him, when he had completed the house; and as already remarked, testimony was offered which went to show that the parties abandoned this arrangement. Bittle proposing to take the house and finish it for ten dollars, which sum was to be endorsed on the note and the same delivered to the payee. There is another equally satisfactory answer which might be given to this objection. The case does not purport to con [148] tain all the testimony introduced before the referee, and we must therefore presume that his finding of facts was fully authorized by the proofs before him. This observation also disposes of another objection taken to the finding, which is, that there was no evidence to show that the note sued upon belonged to the respondent. We must presume that such testimony was offered, since the referee distinctly finds as a matter of fact that the respondent owned the note. But we do not see how we can avoid reversing the j udgment in this case, unless the respondent will remit the excess over and above the amount claimed in his complaint, and pay the costs of appeal. The cause was commenced before a justice of the peace, where the party could only recover one hundred dollars damages. In the circuit court judgment was rendered for one hundred and nine dollars and a half. This is a fatal objection to the judgment, unless a remittitur is entered. Lester vs. French, 6 Wis., 580. Neither do we think sections 81 and 84 of the code would authorize us either to amend the pleadings by increasing the ad damnum, or to disregard this error in the judgment It was suggested that we ought not to give the appellant costs if a remittitur is entered. But in the case of Lester vs. French, supra, and in that of Smith et al. vs. Manchester, unreported, we held that when a party recovered in the circuit court more than he was entitled to, we could only affirm the judgment in this court upon the condition that a proper remittitur was entered and the costs of appeal were paid by the respondent. The appellant, through the oversight or default of his adversary, brings his appeal to this court to correct an error in the proceedings of the court below, and as general rule he should have costs on his appeal. This judgment can only be affirmed on this condition, that the remitti-tur is entered and costs of appeal paid by respondent.