Holendyke v. Newton

TayloR, J. The only errors alleged on this appeal are the1 rulings of the referee and of the circuit court upon the objections to the evidence offered by the defendant. We think the appellant has lost any right to the benefit of his exceptions to these rulings of the referee, by refusing to produce the evidence when the referee offered to receive the same and report it to the court notwithstanding the objections of the plaintiff. This court has several times suggested that it was the better practice, in cases tried by a referee or by the court without a jury, to take the evidence offered by' either party, although objected to by the adverse party, and although the referee or judge might be of the opinion that the evidence, offered was inadmissible; and that such judge or referee should not refuse to take the evidence offered, except in cases clear of doubt. In cases tried by the court or by a referee, there Is very little probability of injury resulting to the parties litigant from the reception of evidence which may not be admissible or relevant, subject to the objections of the opposite party. In such cases, if, upon a review of the referee’s report by the circuit court, or upon a review of' the judgment of the circuit court, such evidence so objected, to is found to be admissible and relevant, the party offering the same will have the same benefit of it as if it had been considered by the referee or circuit court; and, if it be found inadmissible and irrelevant, the opposite party has the benefit of his objections, and the evidence is not considered in determining the rights of the parties. Any other course would lead to very great inconvenience in practice. If the course pursued by the defendant in this case is to be sanctioned, then, when either party to the action has had an opinion of the referee that a piece of testimony offered is not admissible, he may rest his case or defense, and permit a finding and report against him, and," on motion to confirm the report, may take the opinion of the circuit judge as to the correctness of such ruling; and, if said judge thinks the ruling erroneous, he must refuse to confirm the report, and the cause must be [638] referred again to try the case over, or to permit the party to give the evidence offered, and npon a second reference the same process may be gone through with. Or, if the circuit judge, agrees with the referee, the party offering the evidence may come to this court, and if this court is satisfied the ruling-of the referee is wrong, the whole case must go back for a new trial. This practice, we think, ought not to be tolerated, when all these difficulties may be avoided by taking the evidence subject to the objections of thé opposite party and to the opinion of the referee. Then the whole case comes before the circuit court and this court for review, and, whether the opinion as to the admissibility of the evidence be right or wrong, the rights of the parties can be settled without the expense and delay of a new trial. We do not wish to be understood as holding that it would be error for a referee or trial judge to refuse to hear evidence which, in his opinion, is clearly objectionable, unless, upon review, it should appear that the same was in fact admissible; but we do hold that when the referee or trial judge offers to receive evidence which, in his opinion, is inadmissible, the party refusing'to give the evidence waives any right to insist upon the erroneous opinion of the referee or judge as a ground for reversal of a judgment against him. We desire again to make the suggestion which this court made in the case of Yates v. Shepardson, 27 Wis., 238, and in other cases in this court, that referees and judges, trying causes without a jury, should be very careful in rejecting evidence offered upon the trial, and that they should, in every case where there is any reasonable doubt upon the question of the admissibility of the evidence, receive the same subject to the objections of the opposite party, although the referee or judge may entertain the opinion that the evidence is not admissible. Such course can do the parties litigant no harm, and will tend very greatly to lessen the delays and expense of litigation. Upon the question of the correctness of the decision of the [639] referee and circuit court as to tbe admissibility of the evidence offered, we are of the opinion that the decision was right, and that the evidence was not admissible under the.defendant’s answer. As we understand the answer, it did not deny that the plaintiff had delivered all the lumber he had charged the defendant with, nor did it allege that it was not of the kind and quality he had agreed to deliver. It simply alleged that the plaintiff had charged the defendant a greater price for the lumber than he had agreed to deliver it for. The evidence was not, therefore, admissible without an amendment of the answer. In addition to the reasons above urged for receiving the evidence, notwithstanding and subject to the objection of the opposite party, its reception would aid the court in determining the question whether the party offering it ought to be allowed> to amend his answer so as to make the same admissible. If, upon the production of the evidence, it failed to establish a defense, there would be no reason for allowing an amendment of the answer; and, on the other hand, if the proofs, when produced, showed that the defendant had a meritorious defense, which he had failed to set out in his answer, the court would, upon such terms as are just, permit the answer to be so amended as to make the evidence admissible, and require the referee to consider it in making up his final judgment in the case. ¥e find no error in the record for which the judgment should be reversed. By the Gourt.— The judgment of the circuit court is affirmed.