Wolfrom v. Anderson

The following opinion was filed January 22, 1947: The appellant moves for a rehearing on the ground that the decision is based on false statements of the trial court recited in its order dated June 15, 1946, that "the appellant consented to sale of the premises free from the lease," and "elected to accept damages, if any, by reason of the sale free from the lease."

As stated in the opinion of this court, ante, p. 437,24 N.W.2d 881, these statements "are not in dispute in the record." We can only look to the record to determine the fact the appellant seeks to put in controversy by his motion. If the statements of the trial court are not correct and counsel wished so to claim on the appeal he should have had the trial court delete them from the order or have settled a bill of exceptions containing the entire proceedings upon which the order was based. He did neither. He must stand on the record as he saw fit to leave it.

The record consists of the order of the trial court referred to and a bill of exceptions consisting of two transcripts, each of testimony of "S. S. Summers only," one of testimony given on January 23, 1946, and the other of testimony given on May 10, 1946.

It thus appears that the entire proceedings on either of the two dates were not incorporated in the bill of exceptions relating thereto. There is therefore nothing in the bill inconsistent with the statement of the trial judge inserted at page 437 of the opinion and his statement must be taken as correct.

A recital in an order is equivalent to a finding. The rule applicable in case of findings and decisions of the trial court must be applied on appeals or this court will be acting other than as a court of review, to which its power on appeals is limited. As to the effect of findings and decisions of the trial court see Parke, Austin Lipscomb, Inc., v. Sexauer,204 Wis. 415, 417, 235 N.W. 785; Will of Daniels, 225 Wis. 502,510, 274 N.W. 435; Finkelstein v. Chicago N.W. R. Co217 Wis. 433, 438, 259 N.W. 254.

The motion for rehearing is denied with costs.