Luckow v. Boettger

Maeshall, J. The appeal from the municipal court in question should have been disposed of in the circuit court as provided in sec. 3769, Stats. (1898), that is to say, there being no affidavit entitling appellant to a trial de novo, judgment should have been given “according to the weight of the evidence and justice of the case without regard to technical errors” not affecting “the merits and without regard to the findings of the” municipal judge. [65] Formerly the practice was merely to affirm or reverse the judgment of the trial court. That was changed by the revision of 1878 so as to permit of a reversal or affirmance, in whole or in part, either as to damages or costs, or both, but the findings of the trial court were still required to be given sufficient weight to preclude their disturbance unless unsupported by the evidence. That is, such findings were to be regarded on appeal as having substantially the force of findings in ease of an appeal to this court from the circuit court upon the question of whether they are warranted by the evidence. That was changed by ch. 216, Laws of 1891, so as to require the evidence returned to the circuit court to be viewed, substantially the same as if taken originally in such court, the findings of the trial court to be regarded as having, very little dignity in the matter (Silvernail v. Rust, 88 Wis. 458, 60 N. W. 787), yet not to be so wholly disregarded but that the advantages of the trial court over the reviewing court, by reason of opportunity to see and hear the witnesses, might be taken account of (Smith v. Norton, 114 Wis. 458, 90 N. W. 449). The court there said: The language of the statute, “without regard to the finding of the justice,” does not mean that “the evidence returned must be construed most strongly in favor of the losing party. The question presented is purely one of fact. The justice who saw and heard the witnesses found for the defendant. He undoubtedly did so because he thoiight such finding was in accordance with the weight of the evidence. The evidence returned seems to justify such finding. The county court affirmed that judgment. Notwithstanding the language of the statute, we must concur in such finding.” The two amendments to the original statute leave the practice the same as formerly, to the extent that the decision of the circuit court is required to be made upon the evidence returned by the trial court as having been considered there. The former cannot legitimately consider evidence ruled out by the latter even if it is embodied in the return, nor consider [66] tbe effect of answers wbicb it may be conjectured witnesses would have given to questions ruled out as improper. To do so would be clearly extrajudicial because tbe statute, quite clearly, though not expressly, prohibits it. Tbe result of tbe foregoing is that tbe circuit court, in not taking into consideration at all tbe advantages wbicb tbe municipal court bad of seeing tbe witnesses and bearing them testify, and in not only considering evidence wbicb tbe municipal judge ruled out but evidence not given at all; evidence it was supposed would, or might, have been given bad questions ruled out as improper been permitted to be answered, committed errors of law, rendering tbe conclusions reached not supported in this court by tbe ordinary presumption of correctness. That presumption in presence of tbe conclusion having been reached by tbe application of wrong rules of law does not obtain in case of an appeal from a judgment of tbe circuit court on appeal from an inferior court without a new trial. Tbe rule is tbe same in such circumstances as on appeal from a judgment of tbe circuit court in a case tried without a jury. Donner v. Genz, 129 Wis. 246, 107 N. W. 1039, 109 N. W. 71; Brunkow v. Waters, 131 Wis. 31, 110 N. W. 802. In any case, findings of a trial court on matters of fact made by application to tbe evidence of wrong rules of law wbicb did, or probably may have, efficiently influenced tbe result, are not supported in tbe reviewing court by any presumption of their correctness, but they must be tested solely by tbe evidence. Unless it appears that there is a clear preponderance of such evidence in support of tbe judgment as it was proper for tbe trial court to have considered, it must be reversed and tbe cause remanded to tbe proper jurisdiction to make tbe proper findings and judgment, subject to review. Brown v. Griswold, 109 Wis. 275, 85 N. W. 363; Hawkes v. Slight, 110 Wis. 125, 85 N. W. 721; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246. [67] In Finn v. First Nat. Bank, 118 Wis. 531, 548, 95 N. W. 969, it was said: “Tbe trial court is tbe appropriate place for tbe determination of sucb questions.” And in Priewe v. Fitzsimons & C. Co. 117 Wis. 497, 511, 94 N. W. 317, 322: “Tbe evidence is certainly not sufficiently conclusive for respondents to enable ns to come to a satisfactory conclusion . . . without doing tbe work bere that rightfully should be done by a trial judge and generally is left, upon a reversal, for him to do, where there is considerable doubt as to tbe truth of the matter.” In Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 443, 89 N. W. 538, 92 N. W. 266, the case turned below on a conclusion of fact reached under a wrong conception of the law, necessitating a reversal, and it was uncertain which of two reasonable inferences was right in the light of right rules of law, and it was said: “In that situation this court does not direct the judgment to be rendered if the unsolved issues of fact might go either way and it is doubtful which is proper, so that in attempting to decide them originally here injustice might be done.” It may be that it would be better practice in such a case as this to determine here the right of the matter from the evidence and end the litigation. True, it seems like imposing an unnecessary burden upon a respondent having just such a judgment as he is entitled to, to mulct him with costs because of an error for which he is not to blame and compel him again to seek redress in the trial court with the danger of a second appeal to this court before the controversy can be finally terminated. It may be that, especially in a case of this sort, where the trial court cannot any more than this court have the benefit of seeing the witnesses and hearing them testify,— where the opportunity for determining the real right of the matter is the same here as in the court below with the advantages in favor of this jurisdiction of several minds to deal [68] with the subject instead of one, — the cause should be finally terminated here in such a situation as we have before us, even if the rights of the parties upon the evidence be involved in considerable doubt. But the fact remains that this jurisdiction, in such matters, is for the exercise of purely appellate power, not that of rendering judgments as in the exercise of original jurisdiction, and the practice has been quite rigidly in harmony therewith. So much so, the court is of the opinion that it is not best, at this time, to depart from it even if that might legitimately be done. It is the opinion here that, had the trial court not committed the errors of law referred to, a different conclusion might have been reached as to whether the new note was taken in payment of the old one; that, upon the evidence, the decision might go either one way or the other; and that which is the proper way is involved in serious doubt. Therefore, the judgment must be reversed. We will not review the evidence or make any intimation as to the weight which-should be given to any portion of it. That course seems best in order to leave the trial jurisdiction opportunity to discharge its duty untrammeled by any suggestion which might interfere with its judgment within its peculiar field. By the Gourt. — Judgment reversed, and cause remanded for further proceedings according to law.