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Harvey v. Hartwig

Supreme Court of Wisconsin
Oct 6, 1953
60 N.W.2d 377 (Wis. 1953)


September 9, 1953 —

October 6, 1953.

APPEAL from a judgment and an order of the circuit court for Milwaukee county: BRUCE F. BEILFUSS, Circuit Judge, Presiding. Affirmed.

For the appellant there was a brief and oral argument by Louis R. Potter of Milwaukee.

For the respondent there was a brief and oral argument by Bernard C. Westfahl of Milwaukee.

Action to recover damages which the complaint alleges were sustained by plaintiff as a result of a stipulation signed by defendant in plaintiff's behalf without authority to do so. The issue raised by the answer was whether defendant had such authority. Only one question was submitted to the jury which, with its answer, was:

"Did the defendant, Harvey C. Hartwig, have authority to sign the stipulation on July 23, 1942, on behalf of the plaintiff, Albert J. Harvey, Sr.?

"Answer: Yes.

"Dissenting: None."

On July 21, 1952, the trial court entered judgment for the defendant on this verdict.

On or about August 13, 1952, plaintiff made a motion for a new trial on the ground of newly discovered evidence. The motion was denied September 16, 1952. Plaintiff has appealed from the judgment and from the order denying the motion for a new trial.

No bill of exceptions was settled and the appeal from the judgment is before us on the pleadings, charge to the jury, verdict, and judgment. The pleadings frame the issue which the court sent to the jury and which the jury answered. The judgment is in accord with the verdict. For lack of a bill of exceptions, this court cannot go further into plaintiff's claims of error. Davis v. Davis (1951), 259 Wis. 1, 2, 47 N.W.2d 338, and authorities there cited. Berkemeyer v. Milwaukee Automobile Ins. Co. (1950), 256 Wis. 386, 387, 41 N.W.2d 303. The charge to the jury is correct as abstract law; whether it was a sufficient charge under the circumstances of this case depends on the evidence adduced at the trial, concerning which we have no information.

We are likewise without power to consider plaintiff's affidavits supporting his motion for a new trial. We cannot tell whether the trial court erred in denying the motion unless we know what evidence was already before the court. The record made on the trial must determine all questions of fact and such record is not before us, nor can its place be filled by the numerous affidavits which plaintiff has filed to support his argument here on factual matters.

We may not reverse a trial court unless the record of its proceedings shows that error was committed. Since the appellant has not brought us a record showing error we must affirm.

By the Court. — Judgment affirmed. Order denying motion for new trial affirmed.

Summaries of

Harvey v. Hartwig

Supreme Court of Wisconsin
Oct 6, 1953
60 N.W.2d 377 (Wis. 1953)
Case details for

Harvey v. Hartwig

Case Details

Full title:HARVEY, Appellant, vs. HARTWIG, Respondent

Court:Supreme Court of Wisconsin

Date published: Oct 6, 1953


60 N.W.2d 377 (Wis. 1953)
60 N.W.2d 377

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