Svacina v. Greenzweig

Stevens, J. When this case was called for argument the appellant did not appear. Upon it appearing that the case involved questions of fact and that no bill of exceptions had been settled, the judgment appealed from was affirmed from the bench. The record transmitted from the trial court contains what is in form a bill of exceptions which was never signed or settled by the trial judge. Upon motion for rehearing it appeared that the appellant relied upon the opening sentence in Estate of Gabrick, 191 Wis. 453, 454, 211 N. W. 128, where it is said: “A proposed bill of exceptions was served, but no bill of exceptions seems [367] to have been settled.” In that case a bill of exceptions was prepared and served. The cases and briefs on file do not disclose the fact that the bill was regularly settled by the trial court, but counsel for both parties in their briefs did not raise the question that the bill of exceptions had not been duly settled. The case was treated by them as if such bill of exceptions was properly before this court. The sole question presented and considered in that case was whether this court could review the findings of the trial court without exceptions being taken thereto. There was no intent to abrogate by that decision the long-established rule that questions of fact will not be reviewed by this court on appeal or writ of error unless the evidence is brought to this court by means of a bill of exceptions settled by the trial judge in the manner prescribed by law. . In view of the fact that it is apparent that appellant was misled by the statement contained in that opinion, and in order that appellant may have his day in court, the judgment of this court entered February 4, 1929, is vacated, and the record will be remanded to the trial court forthwith to enable appellant to move that court to settle a bill of exceptions, if the trial court still has that power, in accordance with the practice adopted in Allerding v. Cross, 15 Wis. 530, 532. The appellant to pay $10 costs of motion and the fees of the clerk of this court. By the Court. — So ordered. The cause was reargued June 5, 1929. On June 24, 1929, the judgment of the circuit court appealed from was affirmed without opinion.