Pabst Brewing Co. v. Milwaukee Lithographing Co.

Keewin, J. It is suggested by respondent, though not very strenuously pressed in argument, that the order granting a new trial is not appealable. It is said that the appellant is not aggrieved, because if it has a meritorious cause of action it still has opportunity to substantiate it on a trial in the circuit court. The right of appeal is statutory, and the question turns on whether see. 3069, Stats., reaches the present order. Sec. 3069 enumerates the appealable orders, and provides that, when an order of the circuit court grants a new trial, such order may be carried to the supreme court by appeal. It may be said that this statute has reference to orders for new trial in cases where the action was brought in the circuit court originally and not to cases carried there by appeal from the civil court. This statute was in force when the act establishing the civil conrt was passed. Its terms are general and apply to all orders for new trial made by the circuit court. We see no reason why it does not cover an order for a new [618] trial made by tbe circuit court iu a case brought there by appeal from the civil court. We think the order is appeal-able. Hanna v. C., M. & St. P. R. Co., post, p. 626, 146 N. W. 878. The main contention in this court is that there was no monthly tenancy, but on the contrary, when the notice to quit was given, the respondent was holding over as tenant from year to year, or at least until May 1, 1913. It is argued that the notice and service thereof were insufficient. We have set out the notice in the statement of facts. It is brief, but to the point, and we think sufficient under the statute. Sec. 2187, Stats., provides that if a tenant for a year or more shall hold over after the expiration of his term he may, at the election of his landlord, be considered a tenant from year to year upon the terms of the original lease; but that such tenancy may be terminated at the end of any year after, the expiration of said term, by either party to said lease, upon giving to the other party thereto a notice in writing, not less than thirty days prior to the date of such expiration, that he elects to terminate such lease at the end of such year. The respondent, having remained in possession and commenced paying the increased rent according to the terms of the notice, accepted its terms and became a tenant from month to month, unless the terms of the notice were in some way modified. Williams v. Foss-Armstrong H. Co. 135 Wis. 280, 115 N. W. 803. Counsel for respondent endeavor to distinguish the instant case from Williams v. Foss-Armstrong H. Co., supra, on the ground that the tenancy from month to month mentioned in the notice was modified by evidence which showed a holding over for a year from May 1, 1912. The civil court, however, held to the contrary, and such holding is supported by the evidence. The main evidence relied upon by respondent under this head is an alleged conversation testified to by Mr. Davis, president of ’ respondent, which he claimed he had on March 26, [619] 1912, with Mr. Stark, an officer of appellant, and two letters, one dated July 26 and tbe other July 30, 1912. Tbe alleged conversation Mr. Stark testified never occurred, and tbe civil court beld that tbe preponderance of tbe evidence showed that it did not occur. Tbe two letters, tbe civil court beld, did not change tbe situation created by tbe notice and payment of rent under it'. Counsel for respondent insists that tbe notice of March 25, 1912, was not sufficient under sec. 2187, Stats. In this we think counsel is mistaken. It plainly, notified respondent that tbe lease expired on April 30, 1912, and that any bolding thereafter would be from month to month at $300 per month. This, when accepted, was sufficient to create a new tenancy on tbe terms of tbe notice. It is also argued that tbe letters of July 26th and July 30th, before referred to, amounted to an offer and acceptance of a tenancy to May 1, 1913. Tbe civil court was well warranted in finding that these letters did not establish such a contract, or modify tbe terms of tbe tenancy created by the notice of March 25, 1912, and payment of rent under it. Tbe letter of July 26th was written by appellant to respondent informing it that appellant bad an offer to lease tbe property in question for a term of ten years from May 1, 1913, and stating that before making any arrangements it wished to be advised of tbe intentions of tbe respondent as to occupying tbe premises after May 1,1913. Tbe respondent replied by tbe letter of July 30th, saying very briefly that it expected to occupy its new quarters by May following. There is nothing in these letters which modifies tbe terms of tbe notice of March 25th. On the contrary, such correspondence is consistent with a monthly tenancy and offer by appellant to negotiate for another lease. But it is argued by respondent that tbe evidence offered by it was received for a limited purpose, therefore its rights were prejudiced. We do not so understand the record. We think [620] that the evidence was received and considered by the civil court for-the purpose for which it was offered, and that, considering all the evidence offered in its broadest scope, the civil conrt was justified in its findings and conclusions. - The circuit court reversed the judgment of the civil court and ordered a new trial upon the ground that the respondent did not have a fair trial in the civil court; that there was manifest prejudicial error in the record of the proceedings in the civil court; and that substantial justice cannot otherwise be done. The statute creating the civil court, ch. 549, Laws of 1909, as amended by eh. 425, Laws of 1911,- and ch. 320, Laws, of 1913, sec. 28, sub. 3, provides, in substance, that on appeal from the civil to the circuit court every judgment of the civil court shall be affirmed or modified and affirmed as so modified, 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 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 protected, the judgment of the civil court shall be reversed, and the action ordered tried in the circuit court. Point is made that the law was changed pending the appeal in this case by ch. 320, Laws of 1913. It will be seen, however,' that the provision allowing a new trial on account of manifest prejudicial error has not been changed, and no change was made by the amendment of 1913 affecting the questions before us on this appeal. We are convinced that manifest prejudicial error within the meaning of the statute is such error as warrants this court in reversing the circuit court, and that with reference to reversal by the circuit court of judgments of the civil court the same rule which obtains in this court on reversal of circuit court judgments on appeal to this court also obtains; and that 'a new trial shall be ordered by the circuit court only in cases where substantial justice cannot otherwise be done and the rights of the parties otherwise protected, in which case the [621] judgment of tbe civil court shall be reversed and tbe action ordered tried in tbe circuit court. Eder v. Grifka, 149 Wis. 606, 136 N. W. 154; Hanna v. C., M. & St. P. R. Co., post, p. 626, 146 N. W. 878. In tbe case at bar, therefore, tbe court erred in setting aside tbe findings of tbe civil court for tbe reason that such findings were not against tbe clear preponderance of tbe evidence. Tbe findings of fact of tbe civil court, incorporated in its decision, must be regarded as findings of fact here. Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562; Hubbard v. Ferry, 141 Wis. 17, 123 N. W. 142; Clausing v. Jacobs, 147 Wis. 438, 133 N. W. 582. It follows that tbe order appealed from must be reversed. By the Oourt. — Tbe order of tbe court below reversing tbe judgment of tbe civil court and granting a new trial is reversed, and tbe cause remanded with directions to affirm tbe judgment of tbe civil court.