Farrell v. Drees

LyoN, J. Ch. 127, Laws of 1872, under which the bond in suit was given, was repealed by cli. 179, Laws of 1874, before the present action was tried. The plaintiff’s right of action was given by the former act, and depended entirely upon it. In Dillon v. Linder, 36 Wis., 344, we held, after much consideration, that all rights of action given by, and all actions brought under, the act of 1872, which had not proceeded to final judgment before the repeal of that act, fell with such repeal. This decision, the correctness of which we have never doubted, rules the present case. The fact that this action is not brought directly against the saloon-keeper alone, under sec. 6 of the act of 1874, but upon the bond, under sec. 1, is of no importance. In either |Case the right of action depends upon the statute, and the repeal of the statute before judgment, without any saving clause, abolished the right. It is argued, however, that because the evidence has not been preserved by a bill of exceptions, it should be presumed that a valid cause of action of some kind was proved on the trial. In the absence of a bill of exceptions, this court will presume, in support of the judgment of the court below, that all of the allegations contained in the pleadings and essential to the judgment were proved. We know of no. authority for extending a presumption beyond that. Hence, in this cause the presumption is that all the allegations in the complaint were duly proved. There it stops. But that will not save the judgment, because, when it was rendered, the facts stated in the complaint were not sufficient to constitute a cause of action. The learned counsel for the plaintiff have submitted a most ingenious and able argument in support of the judgment; but [191] it is unnecessary to comment upon it at length, for tbe views above stated are decisive of tbe case. The judgment of tbe circuit court must be reversed, and tbe cause remanded with directions to dismiss tbe action. By the Court. — So ordered.