Waterman v. Dutton , 5 Wis. 413 ( 1856 )

By the Court,

Cole, J.

We are of the opinion that the Circuit Court very properly denied the motion for a feigned issue in this cause. At the same time we think there can be no doubt, even in the absence of all statutory provisions upon the subject, that the circuit courts of this state have the power to award a feigned issue in a proper case, and when the application therefor is properly made. Such a power is necessarily incident to tbe general jurisdiction of our courts of equity. Although. the granting of a feigned issue is said to be a matter resting in the sound discretion of the court, yet this discretion is exercised almost as a matter of course, in a certain class of cases, by the English Court of Chancery, and by equity courts in this country.

In the present case, before the hearing, and even before any considerable portion of the testimony was taken, an application was made to the court below for an issue to try matters of fact embraced in some seventeen distinct points or propositions. And it is very evident that many of these facts proposed to be thus tried, are wholly immaterial to the merits of the case.

The counsel for the appellant contends that these issues are indivisible, and must be submitted to a jury, if at all, as one entire proposition. We do not so regard' them. But in examining them we do'not find but one issue which we think is proper, or of a character suitable to be submitted to a jury; and that is the issue in reference to an alleged mistake in the contract; and it may not be necessary to submit even that issue to a j ury, unless the evidence upon that point should be so unsatisfactory, or so conflicting that the court should desire the intervention of a jury to decide it. It has been suggested by the counsel for the appellants, that it was very desirable to take the opinion of a jury upon the other points. But such a practice is subject to great inconvenience and objection. For we have already stated that we considered many of the issues entirely irrelevant to the real facts in controversy ; and indeed that all the issues, except the one above indicated, not of a character suitable to be submitted to a jury, unless it is necessary to put the whole case to the jury as a common-law action. It has not been thought necessary to refer all the facts which may be involved in a suit in equity to a jury for determination; and it probably will not be done until all distinction between suits at law and chancery is abolished. To refer all these issues in this case to a jury would in our judgment only tend to delay and embarrass the cause, increase tbe expense, and result in no possible advantage to any of the parties concerned.

Moreover, we think this application for a feigned issue was premature. Such applications are .usually made at the hearing. See 2 Daniel's Ch. Pr. 1293-4, and cases cited in the notes. Until the hearing, it could not be determined whether or not an issue was necessary to try the fact as to there having been a mistake in drawing the contract. The proof upon that point might be clear, uncontradicted and conclusive; or the allegations of mistake might be entirely unsupported by the evidence. This was not one of those cases where the court could see, upon an examin-ction of the bill and answers, that an important fact was asserted or denied, for instance, like that of forgery, usury, or lunacy in case of a will, or some defence of that kind, that it would be necessary to take the opinion of a jury upon, and to save time and expedite the cause, might order an issue before the hearing.

The order of the Circuit Court affirmed, with costs.