Keller v. Town of Gilman

Wisconsin Supreme Court

Keller v. Town of Gilman

71 N.W. 809, 96 Wis. 445, 1897 Wisc. LEXIS 322

CourtWisconsin Supreme Court

DecidedJune 11, 1897

StatusPublished

Cited by7 cases

This text of 71 N.W. 809 (Keller v. Town of Gilman) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keller v. Town of Gilman, 71 N.W. 809, 96 Wis. 445, 1897 Wisc. LEXIS 322 (Wis. 1897).

Pincite

Opinion

PiNNet, J.

The defendant seeks, on this appeal from the final judgment, to obtain a review, under R. S. sec. 3070, of the order setting aside the first verdict and granting a new trial, and a consequent reversal of the judgment rendered on the second trial as erroneous, the effect of which would probably be to restore the first verdict and entitle it to judgment thereon. Under the section referred to, upon an appeal from a judgment, the court “may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judg-mentappearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any case to take any ex cep[447]*447tion or settle any bill of exceptions, to enable the supreme court to review any alleged error, which would, without a bill of exceptions, appear upon the face of the record.” The statement of the trial judge of the ground upon which the new trial was granted, though properly transmitted with the return, is no part of the record upon or in respect to which error may be assigned. The defendant had lost its right to appeal directly from the order granting a new trial, by failing to perfect such appeal before judgment was rendered on the verdict given on the second trial, and in which both parties participated. Victor Sewing Machine Co. v. Heller, 41 Wis. 657. The judgment appealed from rests upon the pleadings and the verdict in favor of the plaintiff, and we think that it cannot be said that the order granting a new trial “necessarily affects the judgment” appealed from. It is therefore no part of the record, and not reviewable on appeal from the judgment, unless the order and the matter on which it was founded were made a part of the record by a bill of exceptions. The case of Donkle v. Milem, 88 Wis. 33, 37, 38, and cases there cited, is conclusive on the point. It was there held that “ mere interlocutory motions and orders, not involving the merits and necessarily affecting the judgment appealed from, are no part of the record or judgment roll for the purposes of an appeal from the judgment, unless made so by a bill of exceptions.”

The defendant should have settled a bill of exceptions, making such former order, and the minutes of the court upon which it was founded, a part of the record. Eor the wrant of such bill, we are unable to notice the points assigned to show that the order granting the new trial was erroneous.

By the Court.— The judgment of the circuit court is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PiNNet, J.

The defendant seeks, on this appeal from the final judgment, to obtain a review, under R. S. sec. 3070, of the order setting aside the first verdict and granting a new trial, and a consequent reversal of the judgment rendered on the second trial as erroneous, the effect of which would probably be to restore the first verdict and entitle it to judgment thereon. Under the section referred to, upon an appeal from a judgment, the court “may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judg-mentappearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any case to take any ex cep[447]*447tion or settle any bill of exceptions, to enable the supreme court to review any alleged error, which would, without a bill of exceptions, appear upon the face of the record.” The statement of the trial judge of the ground upon which the new trial was granted, though properly transmitted with the return, is no part of the record upon or in respect to which error may be assigned. The defendant had lost its right to appeal directly from the order granting a new trial, by failing to perfect such appeal before judgment was rendered on the verdict given on the second trial, and in which both parties participated. Victor Sewing Machine Co. v. Heller, 41 Wis. 657. The judgment appealed from rests upon the pleadings and the verdict in favor of the plaintiff, and we think that it cannot be said that the order granting a new trial “necessarily affects the judgment” appealed from. It is therefore no part of the record, and not reviewable on appeal from the judgment, unless the order and the matter on which it was founded were made a part of the record by a bill of exceptions. The case of Donkle v. Milem, 88 Wis. 33, 37, 38, and cases there cited, is conclusive on the point. It was there held that “ mere interlocutory motions and orders, not involving the merits and necessarily affecting the judgment appealed from, are no part of the record or judgment roll for the purposes of an appeal from the judgment, unless made so by a bill of exceptions.”

The defendant should have settled a bill of exceptions, making such former order, and the minutes of the court upon which it was founded, a part of the record. Eor the wrant of such bill, we are unable to notice the points assigned to show that the order granting the new trial was erroneous.

By the Court.— The judgment of the circuit court is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

71 N.W. 809, 96 Wis. 445, 1897 Wisc. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-town-of-gilman-wis-1897.

Opinion

Related

Cite This Page — Counsel Stack