quately explained and defendant was entitled to a new trial; and the plaintiff, by accepting and retaining, without objec- tion, the costs imposed by the order opening the case, waived his right of appeal. Feldmeier v. Springfield F. & M. Ins. Co. 337
Alteration and review. See DIVORCE, 6-8.
JUDGMENT NOTE. See BILLS AND NOTES, 1. JUDICIAL DISCRETION. See DISCRETION.
JUDICIAL NOTICE. See EVIDENCE, 1.
JURISDICTION. See ACCOUNT. BANKS, 1.
MARRIAGE, 1, 2. WORKMEN'S COMPENSATION, 2-4.
JUSTICES OF THE PEACE.
Review of judgment by circuit court.
1. Where plaintiff, on appeal to the circuit court from a judgment of a justice of the peace, filed no affidavit for a trial de novo under sec. 3768, Stats., the circuit court was required to give judgment according to the weight of the evidence and the justice of the case, without regard to the finding of the justice and upon the return. James v. Woerpel,
2. Where it is evident from the decision of the trial court that he indulged in the presumption that there was evidence other than that appearing in the transcript, and that he felt bound to affirm the judgment because he was not convinced it was wrong, the appellant was not accorded the review to which he was entitled under sec. 3769, Stats., and the judgment of the circuit court is reversed. Ibid.
LABOR DISPUTES. See INJUNCTION.
LACK OF DILIGENCE. See CONTINUANCE, 3.
LAND CONTRACT. See VENDOR AND PURCHASER.
Covenant against assignment: Transfers in liquidation proceedings. See BANKS, 3, 4.
1. The transfer of title from a trust company to the commissioner of banking by devolution in liquidation proceedings under sec. 2022, and any transfer that the commissioner might make of the lease of the bank premises in course of liquidation, did not constitute a breach of the covenant in the lease against assignment. Liquidation of Citizens S. & T. Co. 601 Covenant to pay for permanent improvements: Removing weeds. 2. An occupant of a farm who, pursuant to sec. 1480, Stats., spent some time in removing mustard weed cannot recover for such work in the absence of any agreement between him and the owner of the farm, the statutory duty to destroy the weed being as absolute upon an occupant of lands as upon the Owner. Tollefson v. Tollefson,
Same: Changes for convenience: Sowing clover.
3. The construction of a small chicken house outside of a barn and certain changes in grain bins in the barn made by the occupant of a farm, being repairs or changes for his con- venience, are not within an agreement whereby the owner was to pay for "permanent improvements" made by the ten- ant; neither is the sowing of clover, if primarily for fertiliz- ing purposes, in the nature of a permanent improvement. Tollefson v. Tollefson,
LEASE. See BANKS, 3, 4. LANDLORD AND TENANT. LEGACIES. See APPEAL, 19. EXECUTORS. WILLS, 9–12.
LIBEL AND SLANDER.
Damages: Circulation of slander by plaintiff.
1. A storekeeper who, in the presence of others, accused plaintiff of being a thief is liable for injury to plaintiff's feelings and to her reputation caused by circulation of the charges among her friends and neighbors, not including the damages sustained by reason of plaintiff herself circulating the story. Suick v. Krom,
2. An instruction which would permit the jury, in determining plaintiff's damages, to consider the fact that the plaintiff her- self told a number of her friends of the incident, is erroneous, as the defendant is not responsible for the circulation of the slander by the plaintiff. Ibid.
Defenses: Privilege in defending property.
3. A slander is not privileged on the ground that the defamatory words were spoken in defense of defendant's property, even though he was under the impression that plaintiff was in fact stealing his goods, as it was not necessary nor justifiable for him to publicly accuse plaintiff of stealing. Suick v. Krom, 254
See NEGLIGENCE, 3.
LIENS. See MECHANICS' LIENS.
See ADVERSE POSSESSION. WORKMEN'S COMPENSATION, 1, 2. Accrual of action: Existence of cause of action not known. 1. Where sisters were induced by brothers to convey to them their interests in the realty of their deceased father for an amount less than the actual value of such interests, the sisters' cause of action for damages accrued at the time of such conveyance and was barred where not brought within six years there- after, under sub. (3), sec. 4222, Stats., notwithstanding the sisters did not discover that they had not received full value for their interests until within six years before the commence- ment of the action, such action not being an equitable action for relief from fraud within sub. (7) of said section. Darling v. Nelson, 337
Lack of opportunity to plead statute of limitations.
2. Where the court denied cancellation of deeds and rendered judgment awarding money damages, the supreme court on appeal will reverse the judgment on the ground that the action was not brought within six years from its accrual, notwithstanding defendants did not plead the statute of limita- tions, plaintiffs not having asked for money damages and defendants therefore having had no opportunity to plead such statute. Darling v. Nelson,
LIQUIDATION. ANT, 1. LOSS OF PROFITS. MALPRACTICE.
See CORPORATIONS, 6-10. LANDLORD AND TEN-
See CORPORATIONS, 8. DAMAGES, 1. See PHYSICIANS AND SURGeons, 2-4.
See MUNICIPAL CORPORATIONS, 8.
Nature and grounds: Necessity of refusal to perform legal duty. 1. Where a bridge company's refusal to repair a roadway was based on a void contract imposing such duty on the city, and it did not appear that the bridge company would refuse to keep the roadway in repair if not relieved of such duty by the contract, there was no such refusal to perform its legal obli- gations as entitled the city to compel performance by man- damus. State ex rel. Superior v. Duluth & S. B. Co.
283 2. Mandamus will not lie to compel the bridge company to pave and maintain the roadway in accordance with the city's de- mands, as the company might adopt a sufficient and appro- priate manner of maintaining the roadway wholly different from that sought by the city.
Same: Writ refused if ineffective.
3. A writ of mandamus to compel a school board to provide trans- portation for relator's children to and from school, under sec. 40.16, Stats., providing that where schools are suspended in a school district the school board shall provide transporta- tion for children of a certain age living more than one mile from the nearest school, for a period of at least six months during the school year, was properly denied, where the final hearing in the proceedings was not concluded until the eleventh month of the school year and such writ could afford relator no relief. State ex rel. Schertz v. Spiegel,
Same: Form of action: Joinder of parties.
4. Mandamus is essentially a civil action so far as the rules and practice as to pleadings are concerned; and a county has such a joint or common interest with that of one seeking by mandamus to compel the sheriff to reinstate him in the ser- vice as a deputy and place his name on the pavroll that it is properly joined as a relator, in view of sec. 2602, Stats., the object of which is to determine in one suit the rights of all parties in the subject matter of the litigation. State ex rel. Milwaukee County v. Buech,
Annulment: Void or voidable marriage: Powers of court. 1. Under secs. 2351 et seq., Stats. 1919, an action for the annul- ment of a marriage, jurisdiction of which is by sec. 2348 given the circuit court, is the proper remedy for setting aside either a void or a voidable marriage. Lyannes v. Lyannes, 381
2. Jurisdiction and power to annul a marriage, like that to divorce the parties, is exclusively of statutory creation, and cannot be extended under the general equitable powers of the court. Ibid.
Presumption of validity of marriage. 3. The presumption in favor of the validity of a marriage over- rides the presumption of evidence that the laws of a sister state are the same as those of the forum, and in the absence of any allegation in the complaint to the contrary it will be deemed, on the consideration of a demurrer, that the parties to the marriage were not disabled or prohibited from marry- ing at the place where the ceremony was performed. Lyannes v. Lyannes, 381 Extraterritorial effect of marriage license law or eugenic marriage law.
4. Neither the marriage license law (secs. 2339n-1 to 2339n-27, Stats.) applicable to marriages solemnized in Wisconsin, nor sec. 2339m, providing for an ante-nuptial physical examina- tion of those who are applicants for a license to marry within the state, has extraterritorial effect. Lyannes v. Lyannes, 381
5. Sec. 2330m, Stats., so far as it relates to marriage in another state of residents of this state, renders null and void such marriage only where the parties are disabled or prohibited. under the laws of this state, from marrying under any cir- cumstances; that is, such a marriage as is prohibited by sec. 2330. Ibid.
Fraud: Nature warranting annulment.
6. Neither representation by the man that he is two years older than he is in fact, nor inducing a marriage in evasion of the state law, in another state, nor both, is or are of such sub- stantial nature as to warrant annulment of a marriage for fraud. Lyannes v. Lyannes, 381
7. The marriage of plaintiff to defendant, induced by the repre- sentation of defendant that her pregnancy was due to inter- course with him, will be annulled when the pregnancy was in fact due to intercourse with another man. Winner v. Winner, 413
Cohabitation: Consummation of marriage.
8. An allegation of a complaint that plaintiff left defendant on the day after their marriage "and has never since cohabited
with him," in effect admits cohabitation prior to leaving and constitutes a consummation of the marriage within sub. (4), sec. 2351, Stats. Lyannes v. Lyannes,
See CONSTITUTIONAL LAW, 2. FEDERAL EMPLOYERS' LIABILITY ACT. INJUNCTION. Negligence, 6. PHYSICIANS AND SURGEONS; 1. WORKMEN'S COMPENSATION.
Wrongful discharge: Tender of resignation: Effect.
1. Where a salesman, before the expiration of his contract, re- quested by letter that his resignation be accepted, such tender of resignation was not a breach of contract; and the em- ployer's reply that the salesman had breached his contract by writing the letter of resignation was a wrongful discharge justifying recovery of salary, commission, and expenses up to the time the resignation was to take effect. Pringle v. Jackson Fence Co. 634
Gross negligence of servant: Liability of master. 2. To render an employer liable for the gross negligence of a servant in the course of his employment, it is not essential that there should be a ratification of such negligence on the part of the employer. Haswell v. Reuter,
Failure to warn servant: Contributory negligence. See NEGLI- GENCE, 3.
3. Where the defendants undertook to repair steam coils in the plant of a manufacturing company, and their employee in charge of the work called for one of the employees of the manufacturing company as a helper, and the helper was in- formed of his duties and the danger incident to the moving of the coils was obvious, it is held that the death of the helper by the tipping of one of the coils was not proximately caused by the failure of the defendants to warn and instruct him as to the dangers incident to the work. Zurich Gen. Acc. & L. Ins. Co. v. Bowers, 116
4. Where the employee of the defendants was engaged in moving the coil by the application of a pinchbar and the deceased was holding it steady, the fall of the coil does not, under the rule of res ipsa loquitur, establish that the operator of the pinchbar was negligent, as the fall of the coil may have been purely accidental or caused by the failure of the deceased to hold it in an upright position. Ibid.
MATERIALMEN. See MECHANICS' LIENS. TIONS, 17, 18.
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