Dreger v. Budde

Siebecker, J. It is averred that the court erred in receiving evidence of adverse possession and submitting the trial of title to the jury, because'the defendants failed to give the bond required by sec. 3620, Stats. (1898), when the title to the strip in question was put in issue by the pleading in the justice’s court. The record shows that the case was appealed to the circuit court and tried de novo therein, pursuant to sec. 3768, Stats. (1898), on the pleadings as orig [520] inally filed in justice’s court. The right to try the title to the disputed strip in the circuit court upon the pleadings in the case as they stood in justice’s court is established in State v. Preston, 34 Wis. 675. The rule is well recognized that the circuit court may on appeal from justice’s court permit amendment of the pleadings to raise the issue of title to land the same as if the action had been originally brought in such court, or to try the title if the pleadings in justice’s court present such an issue; hence the ruling of the circuit court on this point must be affirmed. The evidence of the witnesses Shuman and Dreger was rejected aá incompetent under sec. 4069, Stats. (1898). Under this section persons from, through, or under whom a party derives his interest or title are precluded from giving evidence of any transaction or communication with a deceased person in a cause of action wherein the opposite party derives his title or sustains his liability to the cause of action from, through, or under such deceased' person. The record is not clear as to what fact was the subject of inquiry from the witnesses, but so far as disclosed it seems to have related to the question of title to the strip, and to have pertained to communications with persons now deceased from whom the opposite party derived title or sustained some liability to the cause of action. This brings it within the prohibitions of this section. It is contended that the evidence is undisputed that Carl Budde, defendants’ predecessor in title and possession, never claimed or occupied the strip in question as his land. The proof is clear that he and other owners of the land had occupied the strip for more than twenty years, had cleared parts of it and cultivated portions, and treated the line fence as the division line between the farms. These facts and circumstances are but slightly contradicted in the case. From this the inference is well-nigh irresistible that such open and notorious occupancy of the strip was adverse as to all the [521] world and at tbe expiration of twenty years ripened into an absolute title. ■It is claimed tbat tbe court’s action in not disposing of tbe demurrer to defendants’ counterclaims, and in receiving tbe testimony bearing thereon, operated to plaintiff’s prejudice by misleading tbe jury as to tbe issues for trial upon tbe complaint and answers. Tbe court, however, finally ruled tbat no issue raised by tbe counterclaims was properly in tbe case, and changed tbe answer to tbe question in tbe special verdict which was based on tbe counterclaims. Tbe evidence on tbe counterclaims was distinct from tbe evidence bearing on tbe issues of fact establishing title, which was tbe real issue in tbe case. We perceive nothing in tbe conduct of tbe trial court tbat could have operated to mislead tbe jury in passing upon tbe other issues raised by tbe complaint and answers and actually determined by them. We find no prejudicial error in tbe record. By the Court. — Judgment affirmed.