Opinion
January 11, 1951 —
February 6, 1951.
APPEAL from a judgment of the county court of Green county: HAROLD J. LAMBOLEY, Judge. Reversed.
For the appellant there was a brief by Peterson Kittelsen of Monroe, and oral argument by Marshall L. Peterson.
For the respondents there was a brief by S.W. Franken of New Glarus, and Bull Biart of Madison, and oral argument by Mr. Franken.
Action commenced by plaintiff, William A. Brown, against defendants, John C. Erb and Alet Erb, for plaintiff's recovery of damages which he alleged in his complaint he sustained by defendants or their agents falsely representing to him that a herd of dairy cattle, which defendants contracted on September 30, 1946, to sell to plaintiff with their farm, were a good, clean herd, sound in all respects and free from all disease. In accordance with the contract, the sale contemplated by defendants' offer and plaintiff's acceptance was completed on November 28, 1946, and on that date possession of the farm and cattle was delivered to plaintiff. Immediately after taking possession of the cattle plaintiff discovered evidence of the presence of Bang's disease, and on January 6, 1947, the herd was tested for that disease, and twenty-two cows were found to be suspicious for Bang's disease and fourteen were found to be positive reactors; and later twenty-one cows were found to be positive reactors and condemned because of Bang's disease, and plaintiff suffered a loss of $2,288.45 and also damages in other respects.
Defendants admitted in their answer that the sale contemplated by the contract of September 30, 1946, was completed by the parties on or about November 28, 1946, but allege that by the mutual agreement of the parties on September 30, 1946, upon the execution of said offer and acceptance, defendants relinquished and the plaintiff accepted possession of the farm personal property described in said offer and acceptance, and the parties then made arrangements for the care of the livestock, machinery, and feeds of plaintiff; and defendants deny that said cattle were represented by them or their agents to be a good, clean herd, sound in all respects and free from all disease; and they allege they have no information and belief regarding the discovery of Bang's disease by plaintiff's testing the cattle and finding suspects and reactors, and therefore deny the same; and deny that plaintiff sustained any loss caused by defendants' failure to test the cattle. Defendants also allege other matters which are not material on this appeal.
Upon completing the taking of evidence introduced on a trial by jury, the court submitted fourteen "Special Interrogatories" to the jury, and answers thereto were rendered by the jury and duly filed on July 8, 1950. On July 17, 1950, plaintiff duly filed a written motion (1) to have the court strike the jury's answers to interrogatories Nos. 1, 8, and 11, and to substitute in place thereof certain answers stated in plaintiff's motion, and then enter judgment upon the verdict, as thus changed, for plaintiff's recovery of $2,280 damages as found by the jury in answer to interrogatory No. 14 (a) ;and (2) plaintiff further moved that if the court failed to grant the foregoing motion, the court grant a new trial under sec. 270.49, Stats., on the grounds (a) that there were errors in the trial, (b) that the verdict is contrary to law and the evidence, (c) that the jury's finding as to .the amount of plaintiff's damages is inadequate; and (d) that a new trial be granted in the interest of justice. On the other hand, defendants moved for judgment on the verdict, dismissing the action with costs; or that the court change the jury's answers to interrogatories Nos. 4 and 5 from "Yes" to "No," and then order judgment on the verdict, dismissing the action with costs.
On July 17, 1950, the court heard the attorneys in relation to their respective motions; and their final briefs in support of their motions were filed on August 4, 1950. On September 13, 1950, the court, without any further notice to the parties or any ruling on any of their respective motions after and in relation to the jury's answers to the "Special Interrogatories," entered judgment dismissing plaintiff's complaint on the merits, with the recovery of costs and disbursements by defendants. Plaintiff appealed from the judgment.
As stated in the court's recital in the judgment entered on September 13, 1950, the jury's answers to the court's "Special Interrogatories" were rendered and filed on July 8, 1950. Thereupon each of the parties duly filed their motions to have the court change, as stated above, certain answers of the jury and for judgment on the verdict as changed; and, in the alternative, plaintiff also moved for a new trial. The court heard the arguments of the attorneys for the respective parties and their final briefs were filed on August 4, 1950. On August 7, 1950, Judge LAMBOLEY left for his vacation and did not return until August 29, 1950. During that period and likewise, — after his return on August 29th, — during the period of the eight following days, ending on September 6th, on which there expired the sixty-day period after the rendition of the special verdict on July 8, 1950, the court failed to file a decision on the motions argued July 17, 1950. Instead the court entered an order with a recital that, —
"Sixty days from the rendition of the said special verdict of the jury having expired on September 6, 1950, and the court not having ruled on any of the above motions within said sixty days, pursuant to sec. 270.49, Stats.;
"Now, therefore, pursuant to said special verdict of the jury, and on motion of Stephen W. Franken, one of the attorneys for the defendants;
"It is hereby adjudged and decreed, that the complaint of the plaintiff be dismissed on the merits of the action and that the defendants recover against the plaintiff the taxable costs and disbursements herein. Dated this 13th day of September, A.D. 1950."
As there are some inconsistencies and conflicts in material respects in the jury's answers to the court's "Special Interrogatories, " there was occasion for due consideration and an appropriate and timely judicial determination by the trial court of the issues raised by plaintiff's motion for changes in some of the jury's answers, and likewise his motion for a new trial. As without any delay or default on the part of the parties to the action or their respective attorneys, the sixty-day period (prescribed by sec. 270.49 (1), Stats. ) after the verdict was rendered was permitted to expire without the court deciding the pending motions, which had been duly argued and submitted for its decision, and as the court failed, before the expiration of said initial sixty-day period, to make an order to extend such time for cause as permitted by said statute, there are applicable in this case the provisions in sec. 251.09, Stats., that, —
"In any action or proceeding brought to the supreme court by appeal or writ of error, if it shall appear to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the supreme court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may also, in case of reversal, direct the entry of the proper judgment or remit the case to the trial court for a new trial, . . ."
Consequently, under these provisions the judgment is reversed and the case remanded to the trial court for a new trial.
By the Court. — Judgment reversed with costs to be paid by defendants; and cause remanded for a new trial.