Warner v. Michelstetter

Cassoday, J. The motion for a new trial upon the grounds therein stated was very much within the discretion [676] of the trial court. An order granting such new trial will not ordinarily be disturbed unless it is apparent from the record that there has been an abuse of such discretion. It does not so appear in the case at bar. The only exception to the rule is when it affirmatively appears from the record that such order is based upon a misapprehension of the law applicable. Mullen v. Reinig, 68 Wis. 410. When such misapprehension exists and is relied upon, it is usually made to appear in the order itself, and in fact should so appear. The order before us for review reveals no such misapprehension. For aught that appears in the order, it may have been granted upon any of the eight grounds specified in the motion. Had the trial court denied that motion, the plaintiff might have appealed from any order made thereon, within the statutory period. But the court granted the motion, and two months thereafter, and on January 9,1890, the defendant appealed from the order made thereon. More than eight months after making the order, the trial judge settled and signed a bill of exceptions purporting to state the only ground upon which he granted the motion as mentioned in the foregoing statement. The ground so stated is not among those enumerated in the motion. No such order upon such ground was asked for by the plaintiff. It may be questionable whether the order could be sustained upon that ground. It is enough here to know that the practice of making such misapprehension of law appear by bill of exceptions instead of in the order itself is contrary to the repeated decisions of this court. Rogers v. Hœnig, 46 Wis. 361; Webster v. Oconto Co. 47 Wis. 227; Mullen v. Reinig, 68 Wis. 410. As indicated in the first of these cases by Mr. Justice Qetom, the order is without qualification or reservation, and must therefore be held to be conclusive until modified in some proper way. Even such statement of the trial judge in the bill of exceptions cannot be imported into .the order, nor have the effect of changing, [677] modifying, or impeaching it. Especially should this he so, where, as here, the ground embodied in such statement is outside of those enumerated in the motion. By the Gourt.— The order of the circuit court is affirmed.