Barlass v. Kargus

Winslow, J. Although this action was tried by the court, a nonsuit was granted at the close of the plaintiff’s case, and no findings of fact wefe made. This was contrary to the statute. Stats. 1898, sec. 2868. Findings of fact should always be made in an action tried by the court, whether the action be legal or equitable. Yahr v. Joint School Dist. 99 Wis. 281. This method' of disposing of the case, however, seems to have been consented to by both parties in the court below, and no error is assigned upon it in this court; hence it cannot be considered as a ground which would entitle the appellant to a reversal, but is referred to now simply to call attention to the correct practice in such cases. The chattel mortgage upon which the plaintiff based his claim of title was received in evidence subject to objection, and appellant claims that it was error not to receive the same absolutely and without qualification. The mortgage is in the bill of exceptions, and hence is before us for all purposes. FTo prejudice of any kind results from the fact that it was received subject to objection; hence, whether the ruling was right or wrong, it can be no ground of reversal. [613] After the motion for nonsuit was made, the appellant applied to the court for leave to introduce additional evidence on the subject of the payments upon the mortgage,.and the application was denied. This ruling is now claimed to have been error. The matter was in the discretion of the trial court, and its action will not be reversed unless there has been an abuse of such discretion. ETo facts are shown which would justify us in holding that there was an abuse of discretion in making the ruling; hence there is no error. Lastly, it is claimed that the nonsuit should not have been granted because the evidence shows the mortgage to be a valid lien, and that it has not been paid. The bill of exceptions, however, is not certified to contain all of the evidence, and hence, under the rule which is frequently applied, it must be presumed that there was sufficient evidence of a conclusive nature before the trial court to justify its conclusion. Application was made after the argument by the appellant for leave to withdraw the record and return the same to the trial court for the purpose of obtaining the proper certificate. Such leave was, however, denied. We have found it necessary to adhere closely to the rule that the record must be complete when a case is placed upon the assignment for argument. By the Court.— Judgment affirmed.