Morse v. Stockman

34 N.W. 92, 69 Wis. 272, 1887 Wisc. LEXIS 177

Opinion

By the Court.

During the argument of this appeal, counsel for plaintiff stated to the court and admitted that, as to two of the five parcels of land described in the complaint and claimed in the action, the testimony in the case is insufficient to support the direction of the trial court to return a verdict for the plaintiff. The erroneous direction to the jury respecting those two parcels necessarily works a reversal of the judgment.

The same counsel suggested, but scarcely claimed, that this court might remand the cause with directions to the circuit court to give judgment for the plaintiff for the interest claimed in the other three parcels. We do not look into the record to determine whether the proof supports a direction to the jury to find, as to those parcels, for the plaintiff; for, assuming that it does, we are aware of no authorized rule of practice which will justify this court in directing what judgment shall be entered. Were the verdict right, probably such a direction might be given, but the error is in the verdict as well as the judgment, and both accord with the complaint. There is nothing in the record upon which to base a direction to enter judgment as suggested.

The judgment is reversed, and the cause will be remanded for a new trial.