Widman v. Gay

Mabshall, J. Sec. 3047, Stats. 1898, provides that “ no appeal shall be taken to the supreme court from any judgment when the amount involved, exclusive of costs, is less than $100, unless the title to lands shall therein be in question, or the judge of the court in which such judgment was rendered shall certify that the case necessarily involves the decision of some question of law of such doubt and difficulty as to require a decision of the same by the supreme court, or that it necessarily involves the construction or interpretation of some provision of the constitution of the United States or of the constitution of this state.” Bo such certificate was made, therefore the judgment we are expected by appellant to review is not appealable unless the amount involved, within the meaning of the statute, exceeds $100 exclusive of costs. As no judgment was rendered against the plaintiff, except for costs, manifestly the amount involved on her appeal, exclusive of costs, cannot exceed the entire amount which she could have recovered on the most favorable view that can reasonably be taken of the evidence. The statute has been carefully construed several times heretofore, so it is not deemed advisable to go over the subject at this time. It is sufficient to refer to Burkhardt v. Elgee, 93 Wis. 29, and Henk v. Baumann, 100 Wis. 28. The amount involved is not necessarily the amount claimed in the pleadings on either side, or on both sides, but the amount actually claimed by the appellant which was denied him by the result in the trial court, and -which is brought up for review on the record as presented in this court. In the opinion in [328] Burkhadt v. Elgee, it is said that the amount involved under the appeal statute is the amount actually in controversy between the parties as the case stands in this court. Testing the record here by the foregoing we fail to see why the amount which plaintiff could recover on the evidence in any event could exceed $97. Manifestly, defend-; ant’s counterclaim cannot count to increase the amount in controversy beyond that claimed by plaintiff on the evidence, because there is no judgment against plaintiff except for costs. If there was a recovery for any sum on the counterclaim it would have to be added to the total of plaintiff’s claim in order to arrive at the true amount in controversy; but that condition does not exist, so the rule cannot be applied. It is argued that plaintiff’s third cause of action should be considered, which would be true if any evidence were received or offered tending to sustain it. But- as there was no attempt to prove that plaintiff was delayed in the construction of the greenhouse by defendant’s conduct, the court below necessarily treated that branch of the case as abandoned, and it must be so treated here. The learned counsel for appellant argues that he sought to prove damages under the third cause of action and was prevented from doing so by the rulings of the trial court. We fail to find where such attempt Vas made, except by the offer of evidence that greenhouse stock was ordered and that defendant knew the use that was to be made of the premises; but, as before indicated, in the absence of proof that the enterprise was delayed by defendant’s failure to complete his work by the time agreed upon, the fact, if it be a fact, that he knew the plaintiff desired to locate a greenhouse on the lot, or the fact that greenhouse stock was ordered by the plaintiff, does not prove, or tend to prove, damages ■ recoverable of the defendant. The point most relied upon, we apprehend from a careful [329] reading of the record, to sustain the third cause of action, is that the court sustained ap. objection to a question propounded to plaintiff’s husband after he had testified to matters relating to the first cause of action, as follows: “ Do you think of any other way in which you have been .damaged by reason of their not fulfilling the contract ? ” The objection to the question was properly sustained in any view of it, but if it were answered, and favorably to the plaintiff, that would not prove anything material in the case, for it was not damages to plaintiff’s husband that were claimed by plaintiff, or. that were recoverable of the defendant. > We are unable to-see how the question could possibly have had any bearing on the subject of the controversy between the parties to the action. So, looking at the case in the most favorable view that can be taken of it for appellant, and giving her the benefit of all offers of evidence that were made, the only sum involved, so far as she is concerned, is $9†; hence'the judgment was not appealable without the certificate of the trial judge as-required by law. By the Court.— The appeal is dismissed.