Soenksen v. Weyhausen , 32 Wis. 521 ( 1873 )

DixoN, C. J.

But a single point of law is presented in this case, and that is, whether the questions to be tried by the jury should have been settled, and the affirmative of each assigned to the party entitled thereto, before the introduction of any evidence, and before requiring the defendants to put in their defense on the trial. Counsel for the defendants insists that such is the better and more correct practice, and we are inclined to agree with him. It seems to us that such a course of proceeding would have facilitated the investigation in this case, and that it it would do so in almost all cases of the kind; and it appears to be sustained by authority. But, although this is so, and though a different course was pursued at the trial, the question still arises, whether the judgment is necessarily erroneous and must be reversed on that account. The action is in equity, and the verdict was merely advisory, or to aid and enlighten the court upon the questions of fact. It is a rule at law, even, that immaterial errors will be disregarded; and none are regarded as material which did not or could not have injuriously affected the substantial rights of the party complaining. The judgment will stand if it appears that justice has been done.

Counsel for the defendants argued very cautiously, and as if himself quite distrustful, if indeed he argued at all, that the finding of the jury was against the weight of evidence. The clear preponderance of testimony, as we are fully persuaded after careful perusal of it, sustains the verdict. The fair result from all the evidence is, that the dam rebuilt in 1866 raised and set back the waters of the stream up to and on the wheels and machinery of the plaintiff’s mill, several inches higher than they were accustomed to be. set back previous to that time. The jury found from ten to twelve inches, and on sufficient evidence. The answer of the jury was satisfactory to the court, and a judgment was entered directing the defendants to abate and lower their dam ten inches. We think the judgment was proper, and that no injustice has been done the de-féndants. We do not think either the jury or the court could have come to any different conclusion or one more favorable to the defendants, had the practice contended for by their counsel been adopted; and hence we are of opinion that the judgment should be affirmed.

By the Court. — Judgment affirmed.