Moss v. Vroman , 5 Wis. 147 ( 1856 )

By the Court,

Smith, J.

Tbe only exception taken to tbe ruling of tbe court below in this case, and tbe only error assigned is, upon overruling the motion for a new trial.

Tbe motion was predicated upon tbe ground of surprise, and of newly discovered evidence, but does not disclose such evidence. Upon this latter ground, therefore, tbe motion should fail. Whenever a motion for a new trial is based upon newly discovered evidence, that evidence should be particularly set forth, so that tbe court may judge of its materiality. This was not done, and tbe motion, for this assigned cause, was properly overruled.

In regard to tbe allegation of surprise, we are not able to perceive upon what it is in fact predicated. It appears that tbe evidence upon which tbe plaintiff below recovered was, bis book account verified by bis oath. This was objected to, and received “ for what it was worth,” but no exception was taken to its reception in this manner. It was equivalent to deciding, that tbe testimony was competent in kind, and tbe weight or effect thereof was to be left to tbe jury. No exception was taken to this ruling, and tbe presumption is, that it was acquiesced in by the defendant below. There is no doubt that if an exception bad been taken to tbe ruling of tbe judge admitting the book in evidence, and tbe party excepting bad brought such decision to tbe record, the exception would have prevailed. Tbe character of tbe charges, want of dates, and other characteristics of tbe paper sworn to by the plaintiff below, indicate clearly, that it never could have been a regular book account, such as is contemplated by the statute, and ought not to have been received in evidence.

But, as no exception was taken to its admission, we do not perceive any remedy. Exceptions to the ruling of the judge, when he tries the issue, are as essential as in cases where the issue is tried by a jury. Nor can a party be said, in a legal sense, to be surprised at the admission of evidence to which he takes no exception. We repeat, that the papers called on account book, admitted in this case, ought, not to have been received, if the statement of the case represents them truly, and it may well be that great injustice has been done. But we can perceive no legal mode of redressing the injury, if such there may have occurred, for want of proper exceptions taken.

It was insisted by the counsel, there was not sufficient evidence before the court below to sustain its finding. But the book having been admitted, and not brought within our review by exception, we cannot say that a jury, upon evidence of such kind, admitted by the court, would so grossly have erred as to justify the intervention of this court. There was some evidence admitted upon which the finding was based, and if ¡parties desire to have such matters reviewed, they must present them in a proper manner.

Judgment affirmed, with costs.