Hutchinson v. Eaton , 9 Wis. 226 ( 1859 )

By the Court,

Paine, J.

This was an action for services as attorney, in drawing papers, &c., on the settlement of a divorce suit between the defendant and his wife. It was tried before the court without a jury, and the judge found that the defendant was indebted to the plaintiff in the sum of one hundred dollars, and judgment was entered accordingly.

There was no motion for a new trial, no objection to the evidence, and no exception taken, except to the finding of the court. And yet the only reason urged here why the judgment should be reversed, is that the evidence is not sufficient to authorize the finding. We should not disturb the judgment, even if the case were brought here in such a condition as to enable,us to review that question so far as such a question is ever reviewed by this court. But we do not think in this instance that the question is presented to us at all. It is well settled that under the present practice, where a suit is tried before the judge without a jury, his finding, as to the facts, is equivalent to the special verdict of a jury. And an exception, therefore, to the finding and decision of the court, can only present for review decisions upon matters of law. There is no provision allowing an exception to the finding of the judge as to a matter of fact, so that it shall-present to this court for review, the question whether the evidence supported the finding, any more than there is for an exception to the verdict of a jury with similar effect.

Sec. 20, chap. 132, R. S., 1858, relating to trials by the judge, provides that exception may be taken only to matters of law, and it also provides, that either party, “desiring a review upon the evidence appearing upon the trial, may make a case or exceptions in like manner as upon trials by jury.” &c.

In either case, to present in this court the question whether the verdict or finding is supported by the evidence, there must be a motion for a new trial in the court below, on the ground that it is not so supported, and the decision of the court on that motion may be reviewed here. In this case the question is not presented, and the judgment is affirmed with costs.