Caryl v. Buchmann

187 N.W. 993, 177 Wis. 241, 1922 Wisc. LEXIS 243

• Court: Wisconsin Supreme Court
• Decided: May 9, 1922
• Status: Published

Opinion

Vinje, C. J.

The circuit court properly denied the motion for a new trial. This court must assume as the record stands that the facts stated by the trial judge as to his being at all times within hearing of counsel during the argument to the jury are true. They are only indirectly or inferentially challenged by affidavits on behalf of the defendant. Nothing contained in such affidavits absolutely denies the facts stated by the trial judge. So the facts are that the trial judge at all times was within hearing of counsel arguing and that he ruled upon all objections made. Without any criticism of the judge’s conduct in this case, occasioned by the need of attending to some business at the bank, we suggest that trial judges should at all times during the trial remain in the cpurt room itself, and preferably upon thez bench — the place where they belong during the sessions of the court. The case of Smith v. Sherwood, 95 Wis. 558, 70 N. W. 682, is confidently relied upon by the defendant to sustain his motion. In that case the judge was outside the court room and it does not appear that he was where he could hear the argument. The case is disposed of on the theory that he did not hear the argument and hence did not, arid could not, certify as to what took, place. Plere the trial judge by his decision, a part of the record (Rule 6), certifies that hfe did hear the argument and that he did rule upon all the objections and so could have certified what took place had a bill of exceptions been settled.z

Claim is made that the absence of the reporter caused defendant to forbear to except to statements made by plaintiff’s counsel because a delay in getting him would prejudice defendant’s case in the eyes of the jury. We cannot accept such an excuse for a failure to take due exceptions to proceedings. If we did, procedure would depend upon the judgment of attorneys and not upon settled rules. The same reason might be urged for not objecting to incompetent evidence. Arguments of counsel are not required to be taken by the reporter and are no part of the record unless the objections and rulings thereon are incorporated in the bill of exceptions. Where, as here, not so incorporated, they will not be considered. Mulcairns v. Janesville, 67 Wis. 24, 35, 29 N. W. 565; Heucke v. Milwaukee City R. Co. 69 Wis. 401, 409, 34 N. W. 243; Laue v. Madison, 86 , 57 N. W. 93; Kersten v. Weichman, 135 Wis. 1, 5, 114 N. W. 499. What has been said as to the necessity of the judge being present at.all sessions of the court applies equally to the reporter. He should be where he can be called upon at any time to take down the proceedings.

By the Court. — Judgment affirmed.