McFarlane v. Cushman

19 Wis. 357

Opinion

By the Court,

DixON, C. J.

Ve think there was no error in excluding the award or finding of the referee and the abstract, for the reasons urged in the court below. And we think for the same reasons that the court properly instructed the jury to find a verdict for the defendant. The referee was authorized to decide the plaintiff’s title to be perfect “ upon production to him of a full abstract thereof, duly certified by the register of deeds and other officers of said county.” The referee acted' and decided upon the abstract and affidavit of one Stoppenback. The abstract was not certified by the register of deeds, nor by the other county officers. In submitting the question, the parties had the right to fix the kind of evidence upon which it should be decided; and, unless the stipulation was waived, the referee could not act or decide upon any other; or, if he did so, his decision would be without effect. It does not appear that the defendant consented to the substitution of Stoppenback’s abstract and affidavit; and consequently the decision of the referee is not binding upon him.

The plaintiff showed no compliance with the condition of bond; and the judgment must be affirmed.

Judgment affirmed.