Pennsylvania Coal & Supply Co. v. Schmidt

ViNJE, J. The defendant' claims that the circuit court erred (1) in reversing the judgment; (2) in. ordering a new trial by jury in the circuit court; and (3) ,in ordering defendant' to pay $10 as costs of motion. 1. The defendant in his amended , answer set up affirma244 five matter by way o.f estoppel and the burden of proof was upon him to establish such defense. In Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 198, 23 N. W. 127, plaintiff relied upon an estoppel, and the court said: “The burden of proving the facts upon which the alleged estoppel is predicated was upon the plaintiff, and it has failed to make the proof.” Page 203. To the same effect is Delaney v. Canning, 52 Wis. 266, 8 N. W. 897. An erroneous instruction as to the burden of proof upon a material issue is sufficient cause for reversal where the answer is adverse to the party upon whom the burden is erroneously placed. Carle v. Nelson, 145 Wis. 593, 130 N. W. 467. The judgment was therefore properly reversed and the order granting a new trial must, be affirmed. 2. We are unable' to find any foundation fot the claim that the cause should have been remanded to the civil court for a new trial. Sub. 3, sec. 28, ch. 549, Laws of 1909, provides: “Every judgment of said civil court shall be affirmed or modified and affirmed as so modified, by the circuit court, upon appeal, unless, by reason of manifest prejudicial error in the trial of the action in which such judgment was rendered, any party thereto has not had a fair trial thereof in the civil court; but in any such case of mistrial, where substantial justice cannot otherwise be done and the rights of the parties otherwise observed and protected, the judgment of the civil court therein shall be reversed, and the circuit court shall order the action tried in said circuit court' in the same manner as if originally brought there.” Defendant argues that it is only in cases where the judgment of the civil court is modified and affirmed as so modified, and in case of a mistrial where substantial justice cannot otherwise be done and the rights of the parties otherwise observed and protected, that the circuit court may retain jurisdiction of the case and order the action to be tried in the circuit court in the same manner as if originally brought [245] there; and that there was no showing in this case that would warrant' the circuit court in retaining jurisdiction, and that the case should have been remanded to the civil court for a new' trial. It is evident that such construction cannot be given the statute, for it' nowhere provides for the remanding of a case to the civil court for a new trial. The subdivision quoted prescribes when a new trial shall be granted, but, when granted upon any ground therein mentioned, the- new trial must be had in the circuit court. The act does not contemplate successive appeals from the civil to the circuit court in the same action. 3. No abuse of discretion is perceived in granting the motion with $10 costs. Sec. 2924, Stats. 1911, provides that “Costs may be allowed on a motion, in the discretion of the court of judge, not exceeding ten dollars, and may be absolute or directed to abide the event of the action.” In our judgment, however, it would be better not to impose' costs upon defeated parties in motions of this kind. They should be allowed to endeayor to sustain the judgment of the lower court without incurring the penalty of costs in the event they are unsuccessful. By the Gourt. — Order affirmed.