West v. Vanden Brook

Taylor, J. It is insisted by the learned counsel for the appellant that there is no evidence to support the judgment rendered in the justice’s court, and that it was error for the circuit court to affirm such judgment. The plaintiff in the action having appealed from the [471] judgment of the justice, and having waived the right to a new trial upon the merits in the circuit court, and there being no error shown in the proceedings in the justice’s court, the only question for the circuit court was to determine whether there was any evidence to support the verdict rendered by the jury on the trial in the justice’s court. That there was evidence given on the part of the defendant tending strongly to show that all claims arising in favor of the plaintiff under the lease of the farm mentioned in the proceedings, was a joint claim against the defendant and Frank Fabrick, cannot well be controverted. It may be said that the preponderance of the evidence, as returned by the justice, appears to be against the claim of the defendant; but, there being evidence which, uncontradicted, supports the judgment, the question was one of fact for the jury and not of law for the court. The same rule must apply to a judgment in a justice’s court when heard upon an appeal to the circuit court, and no new trial is had in that court, as is applied upon an appeal from a trial and judgment in the circuit court to this court; and when there is evidence which, uncontradicted, supports the judgment, all questions of credibility of witnesses and preponderance of proofs are for the jury, and not for the court. Campbell v. Babbitts, 53 Wis. 276, 279, 280; Persons v. Burdick, 6 Wis. 63; Martin v. Beckwith, 4 Wis. 219, 243; Hassa v. Junger, 15 Wis. 598, 600. It is claimed, however, by the counsel for the appellants that, admitting that there was some evidence to support a finding that all matters in relation to the leasing of the farm were joint matters between the plaintiff on the one side, and the defendant and Fabrick jointly on the other side, still there is an entire absence of any evidence tending to show that the plaintiff’s claim grew out of or has any connection with such leasing of the farm. From reading the evidence it appears to us that it was taken for [472] granted on the trial in the justice’s court that the plaintiff’s claim grew out of such leasing. The plaintiff himself was on the stand as a witness, and made no claim to the contrary; but, on the other hand, relied upon the alleged fact, to defeat the answer of the defendant, that the leasing of the farm was a several and not a joint contract with the defendant and Fabrick; and he also introduced Fabrick as a witness to sustain his construction of the contract. Under this state of the evidence, it appears to us that it would be unjust to permit the plaintiff to reverse the judgment upon appeal upon a question not raised or controverted before the justice. If the plaintiff thought injustice had been done by the verdict of the jury upon the facts of the case,, he should have made the proper affidavit and have 'taken a new trial in the circuit court. By the Court.— The judgment of the circuit court is affirmed.