3. The right of appeal is statutory, and, where not given, an appeal
in form does not confer jurisdiction. Wilt v. Neenah Cold Stor-
age Co.
398
Presentation and reservation in lower court of grounds of review:
Exceptions.
4. In the absence of any exceptions to the charge of the court no
question relating to instructions can be considered on appeal.
Haas v. Powers,
Same: Bill of exceptions: Certificate.
5. A bill of exceptions recited, at the close of the evidence, that it
contained "all the evidence material to the questions raised on
the appeal," and in the certificate it was declared to contain
"all the testimony given on both sides necessary to present the
questions raised upon the appeal." Held, that the recitation at
the close of the evidence, and necessarily certified to be true
by the judge's signature, satisfied all requirements. Cape v.
Plymouth Congregational Church,
174
6. In the rule that, to enable this court on appeal to go behind either
the findings or the verdict, there must be a certificate of the
trial judge that the bill of exceptions contains all the evidence,
the expression "all the evidence" means all necessary evidence.
Ibid.
Requisites and proceedings for transmission of cause: Notice. See
WILLS, 3.
Assignments of error. See EVIDENCE, 18.
Briefs: Failure to serve: Penalty.
7. Where a party fails to serve his brief within the time prescribed
he is properly chargeable with the penalty denounced by Su-
preme Court Rule 46. Sackett v. Price County,
637
Review: Findings when disturbed. See SALES, 21. RAILROADS, 11.
8. Where, on a careful examination of the evidence, it cannot be
said that the findings of the trial court are antagonized by a
clear preponderance of the evidence, they will not be set aside.
Jost v. Wolf,
37
9. If there is any credible evidence to support a verdict it cannot be
disturbed on appeal. Nolan v. Kroening,
79
10. In determining whether there is such credible evidence or not the
record should be viewed in the most favorable light it will rea-
sonably bear in support of the verdict, and the conclusion of the
trial judge thereon will not be disturbed unless clearly wrong.
Ibid.
11. In such case it is not sufficient that there is room for the trial
judge to have reached, or that the supreme court might have
reached, a different conclusion.
Ibid.
12. Findings made on a motion for a new trial, that jurors were not
guilty of misconduct, must stand unless they appear to be
against the clear preponderance of the evidence.
Ibid.
13. Where the evidence adduced on an issue is conflicting, and there
is no clear preponderance to support appellant's claim, the find-
ings thereon will be affirmed. Luetzke v. Roberts,
97
14. In determining on appeal whether the trial court erred in hold-
ing that any particular issuable fact or facts were established
without room for reasonable minds to reasonably differ in respect thereto the decision below should not be disturbed unless it clearly appears to be wrong. Hodge v. Smith, 326 15. Conclusions of law, or such in effect, found in the trial court's decision as conclusions of fact, and conclusions of fact reached by wrong application of legal principles, do not fall within the rule that the findings of the trial court should not be disturbed unless against the preponderance of the evidence. Figge v. Bergenthal, 594 16. Such rule has no application when the trial court has found the facts of the case and followed such findings with conclusions that the transactions involved were fraudulent, harmful, and void, and the appellate court reverses such conclusions. Ibid. Same: Questions considered. See EVIDENCE, 18.
17. Error assigned respecting the reception and rejection of evidence, not claimed to relate to findings of the jury questioned, not considered. Nolan v. Kroening, 79 18. Where a defense is conclusive in favor of the judgment sought to be reviewed, whether or not errors were committed in ruling upon other issues in the cause, and assignment of such errors, need not be considered. Steffen v. Supreme Assembly of Defenders, 485
Affirmance and reversal: Material and immaterial errors. See ANIMALS, 1, 3. APPEAL, 24-26. COMPROMISE AND SETTLEMENT, 1, 3. COSTS, 2, 3. CRIMINAL LAW, 2, 3. EQUITY, 3. EVIDENCE, 5, 15. EXECUTORS AND ADMINISTRATORS, 15. FALSE IMPRISONMENT, 2. HIGHWAYS, 11, 13, 14. INJUNCTION, 2. INSURANCE, 8, 9, 11. JUDGMENTS, 3. MASTER AND SERVANT, 3, 5, 10. MECHANICS' LIENS. MOTIONS. MUNICIPAL CORPORATIONS, 11. PLEADING, 7. RAILROADS, 2, 8. ROBBERY, 6. SALES, 4. TAX TITLES, 2, 3. TRIAL, 3-6, 10, 12-15, 19-21, 23-25, 32. VENUE. WILLS, 1, 2. WITNESSES, 2, 4.
19. In a criminal prosecution tried by the court without a jury the admission of improper evidence is to be regarded on appeal as having been harmless, unless it clearly appears that otherwise the finding would probably have been different. Topolewski v. State, 244 20. It is error to direct a verdict upon conflicting testimony. Custard v. Wigderson, 412 [21. Whether, on sustaining a demurrer to a complaint and granting leave to answer on terms, omission of notice to the plaintiff of application for judgment on failure to plead within the time allowed is of itself a fatal error, or merely such an irregularity in procedure that reversal need not result unless, in some form of application to the trial court, appellant (plaintiff below) shall have made affirmatively to appear that he has suffered substantial prejudice thereby, not determined, the appellate court being equally divided in opinion thereon.] Stark v. Huber Mfg. Co. 432
22. It is competent for the trial judge in a mere colloquy with counsel, instigated by the latter, to test the contention of counsel by inquiry or counter suggestion, and expression of an erroneous opinion by the trial judge to counsel during such discussion, although in the presence of the jury, except in rare cases of obvious prejudice, is not ground of reversal when the con
clusion finally reached and carried into effect, either by ruling
on evidence or instruction to the jury, is correct. McGowan v.
Watertown,
555
Conclusiveness of former decision: Law of the case. See APPEAL,
24-26.
23. When on appeal from an order sustaining a demurrer a decision
has been made by the supreme court it becomes the law of the
case, and must control any situation not materially variant
from that set forth by the complaint and then considered. Cape
v. Plymouth Congregational Church,
174
Determination of cause: Reversal: New trial or direction of verdict:
Practice.
24. Although proper motions have been made to strike out and
change the answers to a special verdict, where there are legal
principles involved which were not appreciated by the parties
or the trial court, and it is not improbable that on another
trial there may be testimony on lines not covered on the first
trial, a new trial is directed. Dunham v. Salmon,
164
25. Findings of the trial court merely affirming the issues joined by
a general denial of the allegations of the complaint, without de-
claring specifically upon the affirmative defenses presented by
the answer, except that all the material allegations of the an-
swer are unproven and untrue, do not conclude the appellate
court in the presence of evidence so in conflict as to present
but a mere preponderance either way. Closuit v. John Arpin
L. Co.
258
26. In such case the appellate court will choose between three courses
of action: Affirm the judgment if clearly supported by a pre-
ponderance of the evidence; reverse if not so supported, order-
ing judgment in accordance with what appears to be the pre-
ponderance of the evidence; or, if that course seems to present
peril of injustice, remand for further trial and findings. Ibid.
Same: Mandate on reversal. See LIMITATION OF ACTIONS, 3.
Same: Rehearing. See COMPROMISE AND SETTLEMENT, 3.
Same: Equally divided court. See MANDAMUS.
Appeal from county court: Bonds: Liability of sureties. See WILLS, 3.
27. The surety on an undertaking given under sec. 4032, Stats. 1898,
is not liable for the costs awarded on an appeal from the circuit
to the supreme court. Breed v. Weed,
Costs. See APPEAL, 7. COSTS, 3.
APPEALABLE ORDERS. See APPEAL, 1, 2. DISCOVERY, 3.
APPEARANCE. See PROCESS.
APPOINTMENT. See RELIGIOUS SOCIETIES, 3-5, 7, 9.
ARGUMENTS TO JURY. See TRIAL, 1, 2.
ARTIFICIAL MONUMENTS. See BOUNDARIES, 6.
See FALSE IMPRISONMENT. INSURANCE, 16. ROBBERY.
1. An empty revolver merely pointed at a person, and not used to
strike with, is not a dangerous weapon, however much the per-
son at whom it is pointed may be put in fear. Lipscomb v.
State,
2. A loaded revolver pointed at a person within shooting distance
is a dangerous weapon as a matter of law.
Ibid.
3. In a criminal prosecution when the state proves that a gun or
revolver was pointed at a person within shooting distance with
a threat or other words indicating intention to fire, the person
assailed not knowing but that it is loaded, the state has made
prima facie proof that the gun or revolver was loaded and con-
sequently a dangerous weapon.
Ibid.
4. Such facts, if proven beyond a reasonable doubt, conclusively es-
tablish an assault, are prima facie proof that the assault was
committed with a dangerous weapon, and it then devolves upon
the defendant to show that the weapon was not loaded in order
to meet the presumption that it was loaded.
Ibid.
1. In an action for assault and battery it appeared, among other
things, that plaintiff entered the shop of defendants, and pub-
licly and peaceably obtained possession of a union card under
claim of right, and while leaving the shop was attacked by de-
fendants, assaulted, and beaten severely in efforts to regain pos-
session of the card by force. There was no evidence that plaint-
iff was resisted in any way in his obtaining peaceable posses-
sion of the card. Held, that the assault and battery were un-
justifiable. Farley v. Briebach,
231
2. In such case whether defendants had forfeited their right to the
card or not did not alter the situation. It was sufficient that
the union claimed the right to remove it, and that plaintiff went
into the shop to get possession of the card, and did get posses-
sion of it peaceably.
Ibid.
ASSESSMENTS. See HIGHWAYS, 7-10. MUNICIPAL CORPORATIONS, 1-8.
ASSUMPTION OF RISK. See MASTER AND SERVANT, 11. RAILROADS, 9.
ATTORNEY AND CLIENT. See MALICIOUS PROSECUTION, 1, 2. TRIAL,
1, 2, 6.
AUTHORITY. See FALSE IMPRISONMENT, 1, 3. PAYMENT, 2. SALES, 17.
AVOIDANCE. See SALES, 5.
1. It is sufficient to authorize the trustee of a bankrupt to maintain
an action to set aside a conveyance that the transfer was fraud-
ulent as against creditors existing at the time it was made.
Treseder v. Burgor,
201
2. In such case, whether or not subsequent creditors can participate
in the assets recovered by the trustee is immaterial so far as
the trustee's right to maintain the action is concerned. Ibid.
3. In such case the adjudication of the question how the fruits of
the litigation shall be distributed among creditors is for the
federal court in which the bankruptcy proceedings are pending.
Ibid.
4. In an action by a trustee in bankruptcy to set aside a conveyance
because fraudulent as to creditors, a complaint showing a cause
of action to set aside the conveyance upon the ground that it
was, at least, fraudulent as to some creditors, is held sufficient.
Ibid.
5. In an action by a trustee in bankruptcy to set aside a deed as
fraudulent as to creditors, the evidence, stated in the opinion,
is held to sustain findings that the deed was valid only as an
equitable mortgage to secure the bankrupt's actual indebtedness
to the grantee, and that such indebtedness was only $380. Ibid.
Discharge.
6. When a discharge in bankruptcy is in due form, whether the
proceedings in the bankruptcy court upon which the discharge
is based are regular or not cannot be questioned collaterally.
Custard v. Wigderson,
412
7. In an action on a note given to plaintiff "A. Custard" before the
defendant was discharged under the federal bankruptcy act,
it appeared, among other things, that a claim was scheduled
in the bankruptcy proceedings under the name of "A. Cas-
tard." Held, under sec. 17, ch. 541, 30 U. S. Stats. at Large, that
the debt to "A. Custard," the plaintiff, was not discharged. Ibid.
BANKS. See PAYMENT, 2.
BENEFIT SOCIETIES. See INSURANCE, 8-15.
BENEFITS. See MUNICIPAL CORPORATIONS, 1, 7, 8.
BEST EVIDENCE. See CONSTITUTIONAL LAW, 4.
BILL OF EXCEPTIONS. See APPEAL, 5, 6.
Requisites and validity: Execution and delivery. See CORPORATIONS,
11-14. FRAUD, 1, 3-6.
1. If a person secures signatures to a note under promise that
the paper shall not be regarded delivered as a binding obliga-
tion till others, specified by name or as to numbers, shall have
signed and then secures the unconditional signatures of part
only of such others, keeping silent as to the conditional char-
acter of the former signatures, the latter are to be regarded
as having been obtained by fraud. Hodge v. Smith,
326
2. If a promissory note, in form, is delivered by the maker to the
payee, the act being accompanied by a verbal agreement that
the instrument shall not take effect till some specified condition
shall have been performed, as that other persons specified by
name or number shall have signed, the paper, as between the
original parties, will have no validity till the condition shall
have been satisfied.
Ibid.
3. In the circumstances last stated, proof of the contemporaneous
verbal agreement does not violate the rule that a written in-
strument cannot be varied by proof of a verbal promise, since
such proof only goes to the question of whether the paper ever
had vitality as a contract.
Ibid.
4. In the circumstances above stated, if the condition is that cer-
tain other signatures shall be obtained, only part of which are
thereafter secured, they signing unconditionally and without
being informed of their co-makers having signed conditionally
and they are prejudiced thereby, in that the paper does not
take effect as to such conditional makers, they may defend on
|