Smith v. Chicago & Northwestern Railway Co.
Wisconsin Supreme Court
APPEAL from the Circuit Court for Rook County. This action was founded upon claims against the defendant and in favor of the plaintiff, which arose in 1856, and the nature of which will appear from the decision upon a former appeal herein, reported in 18 Wis. pp. 17-21, and 19 id. 326-33-The defendant answered by various allegations designed to show that it had never been liable by reason of any facts alleged in the complaint.
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APPEAL from the Circuit Court for Rook County. This action was founded upon claims against the defendant and in favor of the plaintiff, which arose in 1856, and the nature of which will appear from the decision upon a former appeal herein, reported in 18 Wis. pp. 17-21, and 19 id. 326-33-The defendant answered by various allegations designed to show that it had never been liable by reason of any facts alleged in the complaint. It was shown by the evidence on the present trial, and found as a fact by the court, that on the 10th of January, 1857, plaintiff signed, sealed and delivered to one…
1Opinion
On a motion for a rehearing, Mr. Carpenter, for appellant, argued, inter alia, that, inasmuch as the assignment to Dusenberry was not set up in the answer, the evidence concern/-ing it was irrelevant, and, although not objected to, should have been disregarded. “ A judge should not, even by consent of parties, allow an issue to be tried which the record does not properly raise.” 11 Ad. & E. 665 ; Burnett, 180 ; Starkie on Ev., Notes by Sharswood, 561; 5 Wis. 143; 13 id. 75; 19 id. 199. The defendant must plead all the facts which constitute a partial or entire defense. E. S. ch. 125, § 10;…
2Cases cited3 opinions
- McKyring v. . BullNew York Court of Appeals · 1857
- Cavenaugh v. TitusWisconsin Supreme Court · 1856
- Hays v. KendallWisconsin Supreme Court · 1856