Gersich v. Starich , 177 Wis. 507 ( 1922 )

Vinje, C. J.

The cause was submitted on both sides upon printed briefs. Though the trial court made findings of fact which he declares shall take the place of the verdict, and though the appellant’s attorney correctly states that the verdict is advisory merely, yet his whole brief is devoted to sustaining the proposition that the verdict entitles plaintiff to judgment.

The verdict being advisory merely, it became the duty of the court to make findings of fact. Northwestern Nat. Bank v. Ramsey, 96 Wis. 544, 549, 71 N. W. 939. Such findings set aside and superseded the verdict in so far as' they differed from it. Harrison v. Juneau Bank, 17 Wis. 340; Gunn v. Madigan, 28 Wis. 158; Northwestern Nat. Bank v. Ramsey, 96 Wis. 544, 71 N. W. 939; 10 Ruling Case Law, 533. True, the trial court may either expressly or by implication adopt the advisory verdict as his findings, in which event it constitutes the findings in the case. Northwestern Nat. Bank v. Ramsey, 96 Wis. 544, 71 N. W. 939. But where, as here, the court expressly states that his findings take the place of the advisory verdict, the latter drops out of the case and is no longer to be considered. The case must be treated as though no advisory verdict was taken, and be disposed of upon the findings of fact made by the court. If such findings are sustained by the evidence and in turn sustain the judgment, that ends our judicial inquiry.

It has been held that it is beyond the power of the legislature to take from courts the determination of equitable issues and put such determination in the hands of a jury. Callanan v. Judd, 23 Wis. 343.

The only question, therefore, on this appeal is whether or not the findings of fact of the trial court are sustained by the evidence. While, as stated, this has not been argued by appellant nor. does his brief contain specific assignments of error, as required by Supreme Court Rule 10, still'we have examined the evidence with the result that we find therein a sufficient basis for the court’s findings., and the Judgment must therefore be affirmed.

By the Court. — Judgment affirmed.