Boutin v. Grow

Lyon, J. It is claimed by the defendant, that his admission of the first cause of action merely admits his indebtedness to the plaintiffs in the sum of $592.61 irrespective of his counterclaim, and that there was no evidence to show that sum to be the balance against him after allowing his counterclaim. Hence it is claimed that, in making up the judgment, the defendant should be allowed the amount of his counterclaim as found by the referee, and charged with $592.61 only. This would result in a judgment for the defendant for over $2,000. We cannot adopt these views. We find, in the return to the appeal, what purports to be the testimony taken before the referee; but the same has not been incorporated in a bill of [355] exceptions. Because it has not, such testimony is not before us, and we cannot review the referee’s findings of fact. This is well settled. Gilbank v. Stephenson, 30 Wis., 155; Dougherty v. The North Wis. Railway Co., 36 id., 402; Hills v. Seeley, 37 id., 246; McDonnell v. Schricker, 44 id., 327. The record contains a document signed by the circuit judge, purporting to he a hill of exceptions; but it contains nothing which is not a matter of record without it. There is nothing in it which properly belongs in a bill of exceptions, and hence it has no significance on this appeal. Taylor v. Lucas, 43 Wis., 155. True, this document is prefaced with a statement that no evidence was introduced “ to show that the plaintiffs sold the defendants the goods and paid him the money specified in accounts A and C.” But. this court cannot be bound by any such statement. It might be convenient if we could take the opinion of the circuit judge on the quality and effect of the testimony before the referee, as final; but the law does not permit us to do so. We must have the evidence before us, or we cannot disturb the findings of fact. Hence, if such findings are not admitted by the pleadings, we must presume that they are supported by the proofs. I am free to say that I think the accounts A and 0 are sub-; stantially included in the statement of the first cause of action, and stand admitted of record by the defendant; but my brethren prefer to rest the judgment on the ground above considered. The complaint was properly amended to correspond with the findings of fact, and such findings support the judgment.' Having no record before us which authorizes us to review those findings, the judgment of the circuit court must necessarily be affirmed. By the Court. — Judgment affirmed.