McIntyre Will Case

Wisconsin Supreme Court

McIntyre Will Case

38 Wis. 318

DecidedAugust 15, 1875

StatusPublished

This text of 38 Wis. 318 (McIntyre Will Case) 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

McIntyre Will Case, 38 Wis. 318 (Wis. 1875).

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Opinion

LyON, J.

The record fails to disclose the grounds upon which the motion for a new trial was based. Having been made at a term subsequent to that at which the judgment was rendered, the court had no authority to disturb the judgment, unless the appellant brought himself within the provisions of sec. 88, oh. 125, E. S., that is, unless he showed that the judgment was the result “of his mistake, inadvertence, or surprise, or excusable neglect.” The record being silent on the subject, we must presume, in favor of the correctness of the decision of the circuit court, that he failed to make such showing.

This consideration alone is a conclusive reason why the order denying a new trial of the issues should be affirmed. But there is another conclusive reason for affirmance. The case, or bill of exceptions, does not purport to contain all of the testimony, and, for a reason already indicated, we must presume that there was evidence sufficient to support the verdict. We are satisfied, however, upon the evidence contained in the case or bill, that the verdict is correct, and no resort to presumption is necessary to sustain it.

The foregoing principles have been so frequently asserted [320]*320and applied by this and other courts, that it is unnecessary to refer to adjudged cases to support them.

By the Oourt. — Order affirmed.

RyaN, C. J., took no part in the decision of this cause.

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LyON, J.

The record fails to disclose the grounds upon which the motion for a new trial was based. Having been made at a term subsequent to that at which the judgment was rendered, the court had no authority to disturb the judgment, unless the appellant brought himself within the provisions of sec. 88, oh. 125, E. S., that is, unless he showed that the judgment was the result “of his mistake, inadvertence, or surprise, or excusable neglect.” The record being silent on the subject, we must presume, in favor of the correctness of the decision of the circuit court, that he failed to make such showing.

This consideration alone is a conclusive reason why the order denying a new trial of the issues should be affirmed. But there is another conclusive reason for affirmance. The case, or bill of exceptions, does not purport to contain all of the testimony, and, for a reason already indicated, we must presume that there was evidence sufficient to support the verdict. We are satisfied, however, upon the evidence contained in the case or bill, that the verdict is correct, and no resort to presumption is necessary to sustain it.

The foregoing principles have been so frequently asserted [320]*320and applied by this and other courts, that it is unnecessary to refer to adjudged cases to support them.

By the Oourt. — Order affirmed.

RyaN, C. J., took no part in the decision of this cause.

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Bluebook (online)

38 Wis. 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintyre-will-case-wis-1875.