Paine v. Smith , 32 Wis. 335 ( 1873 )

Dixon, C. J.

The complaint was verified, but the bill of particulars served by the plaintiff on demand of the defendant was not. If the pleading be verified, the statute requires the copy of the account also to be, by the oath of the party or of his agent or attorney. R. S., ch. 125, sec. 20; 2 Tay. Stats., 1442, § 22. The defendant did not return the bill of particulars at the time of service, but retained the same without objection until the trial, which took place more than two years after-wards. At the trial he objected to any evidence being received of the particulars of the plaintiff’s demand, because the copy of the account was not verified. The court overruled the objection, which ruling was clearly right. The defendant had waived the defect by retaining the account, and by his silence or neglect to make the objection known in proper time. He had elected to accept the copy of account in form as served.

The court also, against the objection of the defendant, received proof of items not contained in the copy of account served. No affidavit of surprise, or of the absence of witnesses, or failure to procure evidence to meet or rebut the proof of such items, was made on the part of the defendant. Without such affidavit, and with no ground of objection appearing save the mere omission of the items from the copy of the bill of partieu-lars served, we cannot say the court erred in receiving the proof. The omissions may have resulted from clerical mistakes in making the copy; but whether they did or not, we suppose it is entirely competent for the court, in a proper case, to allow an amendment of the bill of particulars at the trial. If the opposite party be not taken by surprise, and no injustice is done, such amendment may be allowed. The admission of the proofs here must, under the circumstances, be regarded as equivalent to a direction by the court that the bill of particulars be amended. Such an order, in form authorizing an amendment of the bill, might, for all that appears, with propriety have been made.

An exception was taken to the order of the court overruling the motion of the defendant for a nonsuit; and the defendant likewise took several exceptions to the charge of the court to the jury. The exceptions so taken can avail nothing in this court, since the bill of exceptions is not certified to contain all the testimony giveii upon the trial. With respect to the exception to the order overruling the motion for a nonsuit, this objection to the consideration of it by this court is obvious; and the same is equally applicable to the exceptions taken to certain parts of the charge. The exceptions to the charge are all based upon the supposed absence or insufficiency of testimony to justify the instructions given. Without the certificate necessary to show that there was no testimony, or that it was insufficient, we are bound to presume that there was testimony, and that it was sufficient to justify the instructions given or facts assumed by the court in the charge. The judgment must, therefore, be affirmed.

By the Court.— It is so ordered.