Wisconsin River Lumber Co. v. Plumer , 49 Wis. 666 ( 1880 )

Lyon, J.

The learned circuit judge, in his findings of fact, entirely ignored the issue made by the counterclaim and reply. This was error. The record contains no bill of exceptions, and the regularity of the judgment can only be determined by the pleadings and findings of fact. The judgment recites that the cause was tried upon the complaint, answer and reply, and shows affirmatively that it is based upon the findings of fact. Clearly, in such a case, the findings should dispose of all material issues made by the pleadings, or the judgment is erroneous.

The record shows that the defendant did not appear when the cause was tried. This fact appears by the proceedings in the action subsequent to judgment, but not in the judgment itself or in the findings. As a matter of course, no proof was given in support of the counterclaim. The court should have dismissed the counterclaim without prejudice to another action for the same cause, or should have rendered a judgment upon it in the nature of a nonsuit in such form as would have saved the right of action. As the record now stands, it is quite probable that this judgment might be successfully pleaded in bar of another action for the cause stated in the counterclaim. This question has not been argued, and we prefer not to determine it definitely on this appeal. The fact that the findings do not dispose of all the issues is sufficient, in the absence of a bill of exceptions containing the evidence, to work a reversal of the judgment.

Some of the members of the court think the complaint defective because it does not allege affirmatively that.the defendant is indebted to the plaintiff on his stock subscription. We leave the question undetermined, but suggest to counsel whether the complaint should not be amended in that particular.

By the Court. — Judgment reversed, and cause remanded for a new trial.