Hamlin v. Haight , 32 Wis. 237 ( 1873 )

Lyon, J.

I. The exception taken to the charge of the circuit court is entirely too general to be available to the defendant on this appeal. This court has held repeatedly, “ that it would not review the charge of the circuit judge unless his attention was specially called to those portions complained of, when the same was given, so that he might have an opportunity to modify or withdraw the objectionable portions should he deem them incorrect.” Bigelow v. The West Wisconsin R. R. Co., 27 Wis., 478, and cases cited. This is a most wise and salutary rule, and one of very general application. In the hurry of jury trials at the circuit it frequently happens that the judge must prepare his charge hastily, and without that opportunity for investigation and deliberation which is usually desirable; and it would be in the highest degree unj ust to him and to suitors, if an error, often inadvertently committed, and which the judge would have perceived and corrected had his attention been called to it, should be allowed to work a reversal of the judgment If a party thinks that .the judge has charged the jury against the law in any particular, he ought not to be permitted to spring the objection for the first time in the appellate court, but should, by specific exception, give the judge an opportunity to correct the error and thus avoid the necessity of an appeal.

II. The same principle is applicable to the exceptions taken to the refusals of the circuit court to give the instructions asked for on behalf of the defendant. Those refusals are excepted to generally, and as a whole. If any of the propositions which the court was asked to give, are untenable, the exceptions must necessarily be overruled. That some of them are untenable does not seem to admit of a doubt. Take, for example, the following, which is one of them : . “If the jury shall find from the evidence that there is no promise in writing by the defendant to pay the plaintiff the fees for serving the writ of attachment in case of Parker v. Harwood et al., claimed by the plaintiff in his first count set forth in the complaint, then it is within the statute of frauds, and the plaintiff cannot recover.” If this instruction is correct, then, although the defendant might have collected the judgment against Harwood and Fry, including the fees in controversy (and the testimony tends to show that he had done so), and although the plaintiff was entitled to such fees, still the defendant would be under no legal obligation to pay them over, because • he had not promised in writing to do so. Of course,’ under such circumstances, the defendant would be liable to the plaintiff ■ for the fees so received by him, without any express promise, in writing or otherwise, to pay the same over to the plaintiff; and hence the proposed instruction is radically unsound. • The action for money had and received was instituted to reach just such a case.

We must bold, therefore, that on this appeal we cannot review the charge of the learned circuit judge, or the proposed instructions which he refused to give to the jury.

III. The only remaining question argued by counsel for the defendant which is deemed worthy of further consideration is, whether evidence that the plaintiff was the owner of the fees in controversy, was admissible under the complaint. It may be conceded that, prima facie, fees earned by the plaintiff as deputy sheriff belong to the sheriff and not to the deputy. Furthermore, it is true that the complaint does not expressly ,aver that such fees were assigned by the sheriff to the plaintiff before the action was commenced, although the fact that such assignment was made is undisputed. Yet the complaint does •state, substantially, that the fees belong to the plaintiff. They are referred to in both counts as the "plaintiff’s fees,” or "his fees,” meaning the plaintiff. It may be that on demurrer, this would be held an insufficient averment of the plaintiff’s ownership of the cause of action. But no demurrer to the complaint was interposed, and this court has held that in such case the pleading should be most liberally construed in favor of the pleader. Teetshorn v. Hull, 30 Wis., 162; Hazelton v. Union Bank of Columbus, ante, p. 34, and cases cited. Besides, this is an oral pleading in a justice’s court, and we think it not difficult for “a person of common understanding” to know therefrom that the plaintiff intended to state that he was the owner of the fees which the action was brought to recover. Tay. Stats., 1362, § 51.

We are of the opinion, therefore, that it was not error for the court to receive evidence that the fees were assigned to the plaintiff by the sheriff before this action was commenced.

When the'plaintiff rested his case, he had made no proof of •such assignment, and in that state of the proofs the motion for a nonsuit should have been granted. But it was in the discretion iof the court to allow the assignment to be proved after-wards, and, having done so, the refusal to nonsuit will not work a reversal of tbe judgment. Dodge v. McDonnell, 14 Wis., 553; Barton v. Kane, 17 id., 37.

The judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.