Cooper v. Granger

108 N.W. 193, 129 Wis. 50, 1906 Wisc. LEXIS 50

• Court: Wisconsin Supreme Court
• Decided: June 21, 1906
• Status: Published

Opinion

Oassoday, O. J.

1. The proceedings in the action between the time of the rendition of the verdict and the making of the order appealed from are fully set forth in the foregoing statement. It is urged that the order should be reversed because the motion to set aside the verdict and grant a new trial upon the minutes of the judge “was not joined with a motion to vacate the judgment.” Bailey v. Costello, 94 Wis. 87, 93, 68 N. W. 663. But a sufficient answer to such objection is that the order itself recites and declares that “on a motion to vacate and set aside said verdict and judgment” the same were “vacated and set aside.” We cannot say from the record before us that such statements were not correct.

2. It is further contended that such motion was improperly granted, because it was based upon the minutes of the judge and ivas not made and determined at the trial term, which was in June, 1904. Whitney v. Karner, 44 Wis. 563; Dufur v. Home Inv. Co. 122 Wis. 470, 100 N. W. 831. The argument seems to be that the adjournments of July 19, 1904, and of November 23, 1904, subject to the order of the judge, without any adjournment to a specific day, operated as a termination of the June, 1904, term of the court. The statute provides that a motion made but not decided during the term is deemed to be overruled, and an exception to such constructive denial is to be allowed. Sec. 2878, Stats. 1898, as amended by ch. 100, Laws of 1901. The statute also declares:

“Eo omission to adjourn any such court from day to day, previous to the final adjournment thereof without day, shall vitiate any proceedings in such court.” Sec. 2572, Stats. 1898.

Under this section it has been held that “a term of court does not come to an end by failure to adjourn to a specific time, but once commenced it continues until terminated by an affirmative judicial act or by the commencement of a new term.” State ex rel. Barber v. McBain, 102 Wis. 431, 435, 436, 78 N. W. 602. It follows that the June, 1904, term of the court continued until the commencement of the new term of the court, unless sooner terminated by the affirmative action of the court in adjourning such term. The first day of the new term was January 3, 1905. The order recites, in effect, that the “motion to vacate and set aside said verdict and judg-men!” was “heard on an adjourned day of said June, 1904, term of said court,” being January 3, 1905, on which day the order was made and signed; and the record shows that upon granting said motion and ordering the judgment to stand as security the court adjourned ,w die.” Such order was effectual though not entered of record until June 6, 1905. Thus, it appears that the adjournment of the June, 1904, term was on the same day as the opening of the new term. The fair presumption is that such adjournment of the June, 1904, term took place prior to entering upon the business of the new term. Certainly, error is not to be presumed.

3. Error is assigned for setting aside the verdict and judgment without imposing terms. The order appealed from states the grounds upon which it was based, and, among others, that the court erred in charging the jury, in excluding evidence, in admitting evidence, and because the verdict was perverse. The failure to impose costs in such a case is not error. Maxon v. Gates, 112 Wis. 196, 202, 88 N. W. 54, and cases there cited.

By the Gourt. — The order of the circuit court is affirmed.