James v. Woerpel

Eschweiler, J. The plaintiff upon his appeal to the circuit court filed no affidavit under sec. 3768, Stats., for a trial de novo. This made it imperative upon the circuit court to give judgment according to the weight of the evidence and the justice of the case without regard to the finding of the justice and upon the return. Sec. 3769, Stats.; Silvernail v. Rust, 88 Wis. 458, 460, 60 N. W. 787; Fintel v. Cook, 88 Wis. 485, 60 N. W. 788; Smith v. Norton, 114 Wis. 458, 90 N. W. 449; Brunkow v. Waters, 131 Wis. 31, 110 N. W. 802. It is evident from his written decision quoted above that in disposing of the appeal he indulged in the presumption that there was other testimony presented to and considered by the justice or jury, as he inadvertently stated, than that, found in the transcript. ITe also evidently felt bound to affirm because not convinced that the judgment of the justice was wrong. Both of these views as to his duty under this statute were wrong. Failing to give the appellant the statutory right [167] secured to him, the judgment must be reversed to the end that such a review be had where the law declares it must be .had before this court can be properly invoked to review the proceedings. Luckow v. Boettger, 140 Wis. 62, 65, 121 N. W. 649. By the Court. — Judgment reversed, and cause remanded for further proceedings. ■