Goesel vs. Davis.

defendant." What she was sent for is left entirely to conjecture, and that cannot reasonably reach beyond a mere demand for payment of the money claimed. That such was not the real purpose, however, of producing the wife as a witness, appears quite conclusively, because proof of a demand was of no consequence, except as bearing on the right to recover interest, and because plaintiff had previously testified to such demand, and it was plain that such circumstance was not expected to be controverted in the case. Then again, no question was asked of the witness indicating a purpose to obtain testimony on the subject of a demand. The whole situation shows that the real purpose was to get before the jury the wife's impressions of what the truth was as regards the contract, the evidence showing that she was present when it was made; and that purpose was pretty effectually accomplished, in a manner quite likely to prejudice the jury against the defendant. The result could hardly have been different from the loose way the witness was permitted to testify. Without any preliminary evidence showing the scope of her competency, or really her competency to testify at all, she was allowed to answer this question: "You may state what conversation took place between you and Mr. Davis relative to this matter?" Also the following question propounded by the court: "Go on and state all that was said there?" Those questions were broad enough to enable the witness to state her version of the contract made in her presence between the parties, in the event of its having been a subject of discussion at the time of the conversation, and the situation was such as to naturally have suggested that it was so discussed. The court should have observed that, and restricted the inquiry within such narrow limits that it could not go beyond at least a demand for payment. The rule allowing a wife or husband to testify to transactions in which the one acts as agent for the other arises out of the necessities of the situation, and should be closely guarded on

Goesel vs. Davis.

account of the temptation to false swearing which such a situation presents. Before such testimony should be allowed, the necessity for it, and all the circumstances requisite to bring it clearly within the exception to the general rule excluding the testimony of husband or wife, should be shown, and questions should then be so framed as to confine the evidence within its legitimate limits. When the real controversy between the parties is not a matter to which the agency applies, a broad question, such as "state what was said relative to this matter," could hardly result otherwise than prejudicially, as it clearly did in this case, and for which the judgment must be reversed.

By the Court.- The judgment of the circuit court for Milwaukee county is reversed, and the cause remanded for a new trial.

INDEX.

ACCOMMODATION PAPER. See BILLS AND NOTES, 3.
ACCOUNTING. See COSTS, 1. PARTNERSHIP, 7.
ACCOUNTS of executors. See COURTS, 6.

ACTION.

Cause of Action. See AGENCY, 1. ATTORNEYS. CHATTEL MORTGAGES, 2.
COMMON SCHOOLS. CONTRACTS, 1, 3. COUNTIES. DAMAGES, 1.
EQUITY, 1. FRAUD, 3. INSURANCE, 12, 13. JOINT DEBTORS, 2.
MASTER AND SERVANT, 5, 7. MUNICIPAL CORPORATIONS, 4-13, 23.
NEGLIGENCE, 2, 3. PARTNERSHIP, 3, 6. PLEADING, 2. RAILROADS,
22. SALE OF CHATTELS. TENANTS IN COMMON. VOLUNTARY AS-
SIGNMENT, 4, 5.

WATERS, 2, 6, 8. WILLS, 1.

Conditions precedent. See INSURANCE, 12, 13.

By whom to be brought-Who may maintain. See PARTIES. SURETY-
SHIP, 2.

At law or in equity? See COSTS, 1. PARTNERSHIP, 6, 7. VOLUNTARY
ASSIGNMENT, 4.

To exclude the exercise of the equitable functions of the court on
the ground that there is a remedy at law, that remedy must be as
practicable and efficient to the ends of justice and its prompt ad-
ministration as the remedy in equity. Miller v. Drane,

Tort or contract? See CONTRACTS, 1. FRAUD, 3.

Election of remedies.

MENT, 4.

1

See JOINT DEBTORS, 2. VOLUNTARY ASSIGN-

Joinder of causes of action. See DAMAGES, 1.

In what court to be brought. See COURTS, 1-6. WILLS, 1.

Limitations. See LIMITATION OF ACTIONS.

ADMINISTRATORS AND EXECUTORS. See COURTS, 1-6. INSURANCE, 2, 3.
WILLS.

ADVERSE POSSESSION.

See BOUNDARIES.

1. Possession by one tenant in common, adverse to a third person, is
the possession of all the cotenants. Wollman v. Ruehle,

31
2. Proof of uninterrupted, open, and exclusive possession of land for a
period of over twenty years, by one not owning the legal title and
his privies, if unexplained, establishes the fact of adverse possession
from the beginning.

AGE of female: Evidence. See CRIMINAL LAW, 4.

Ibid.

AGENCY.

See EVIDENCE, 5. FRAUD, 3. MUNICIPAL CORPORATIONS, 13. SURETYSHIP.

1. One who employs an agent to sell a particular tract of land is not
responsible for false representations made by such agent respect-
ing the organization and stock of a corporation formed to purchase
the land, with which the principal has nothing to do. Hoyer v.
Ludington,
441
2. An allegation in a complaint that certain acts of an agent were
within the apparent scope of his employment is a conclusion of law,
and therefore not admitted by a demurrer ore tenus.
Ibid.

AMENDMENT.

Of statutes. See JURORS, 1. MUNICIPAL CORPORATIONS, 3. STAT-
UTES, 2.

Of by-laws. See INSURANCE, 8.

Of pleading. See NEW TRIAL, 2-4.

APPEAL AND ERROR.

From what appeal may be taken. See RAILROADS, 12.

1. Under the statute (Laws of 1897, ch. 183) prohibiting appeals, except
on the certificate of the trial court submitting difficult questions
of law for decision, where the amount involved is less than $100
exclusive of costs, the "amount involved" refers to the amount in
dispute as the case stands in the appellate court, without regard
to the amount of the judgment appealed from or that claimed in
the pleadings. Henk v. Baumann,
28

2. If the amount claimed be over $100, but the opposite party admits a
part, leaving less than $100 in dispute, then the amount involved
is less than $100, within the meaning of the appeal statute. Ibid.
3. An order, made before the entry of judgment, permitting a defendant
who was in default to answer, upon condition that he file an un-
dertaking to pay any judgment that might be recovered against
him in the action, is not appealable under sec. 3069, R. S. 1878, as
amended by ch. 380, Laws of 1897. Central National Bank v.
Brand,
648

Jurisdiction of appeal: Dismissal. See APPEAL, 7. ELECTIONS, 1.
4. Where the court has no jurisdiction of an appeal, a dismissal must
follow, whether a motion be made to that effect or not, under the
rule that consent or waiver cannot confer jurisdiction of the sub-
ject matter. Henk v. Baumann,

Same: Insolvency of corporation appellant.

28

5. The insolvency of a corporation and the appointment of a receiver
for it do not, ipso facto, operate as a dissolution, and therefore af-
ford no ground for the dismissal of an appeal taken in its name.
Stolze v. Manitowoc Terminal Co.

Notice of appeal: Defects.

208

6. Where the supreme court is the only court to which an appeal could
be taken, a notice of appeal is effectual although it fails to state
to what court the appeal is taken. Messmer v. Block,

Undertaking on appeal: Substitution.

664

7. An undertaking, given on appeal, to pay the judgment, if affirmed,
as well as the costs and damages, although much broader than re-

quired, conferred jurisdiction of the appeal, and it was therefore
competent for this court to allow such undertaking to be with-
drawn and a new one substituted. Stolze v. Manitowoc T. Co. 203
Record: Exceptions: Questions reviewed. See LANDLORD AND TENANT,
2. MUNICIPAL CORPORATIONS, 22. RAILROADS, 13.
8. Where an opinion filed by the trial court upon granting a motion for
a new trial is included in the bill of exceptions, the reasons assigned
are before this court for consideration in determining the correct-
ness of the order. Becker v. Holm,

281

9. Where there is no certificate that the bill of exceptions contains all
the evidence, and no recital therein to that effect, there can be no
review of the evidence on appeal, nor any inference drawn incon-
sistent with the verdict. Conatty v. Milwaukee E. R. & L. Co. 467
10. The supreme court cannot review the evidence in a case tried by the
court unless exceptions are taken to the findings of fact and pre-
served in the bill of exceptions. Lederer v. Estate of Kohn,

662

11. Questions not decided by, nor presented to, the trial court will not be
reviewed on appeal. Ritter v. Ritter,
468
12. In the absence of a motion for a new trial the supreme court cannot
review the evidence to determine whether it supports the verdict.
Shores Lumber Co. v. Starke,

Briefs: Assignment of errors, etc.

498

229

13. In the absence of any assignment of errors and of anything more
than general statements in appellant's brief that the complaint
fails to state a cause of action and that there is a fatal variance
between the allegations and the proof, this court declines to search
through the record to ascertain whether there are grounds for such
objections. Grimm v. Washburn,
Affirmance and reversal: Material and immaterial errors. See CON-
TRACTS, 4. COURTS, 4, 5, 7, 8. CRIMINAL LAW, 2, 9-13. ELEC-
TIONS, 1. EVIDENCE, 3. INSTRUCTIONS TO JURY, 1-3. JURORS, 2.
MASTER AND SERVANT, 2. NEGLIGENCE, 4. PRACTICE RAILROADS,
8, 17, 18. VERDICT, 2.

14. Failure to find upon a particular point is not a material error, in the
absence of a specific request, where the evidence upon that point
would sustain a finding in accord with the judgment. First Nat.
Bank v. Finck,

446

Disqualification of judge: Previous determination of same matter:
Waiver: Void judgment: Reargument.

15. In an action to restrain the diversion of water from a ditch or canal
on the grounds that it was a watercourse and that the right to have
the water flow therein had been acquired under a fully executed
oral contract with defendants' grantors, an order of the circuit
court sustaining a general demurrer to the complaint was reversed
on appeal on the ground that the facts alleged showed the exist-
ence of a natural watercourse, but it was not decided whether
plaintiff had any rights under the alleged contract. On the trial
before another circuit judge he found that an ancient watercourse
flowed in the ditch and that the oral contract had been made and
executed as alleged, and gave judgment for the plaintiff. On ap
peal from that judgment it was reversed on the grounds that the
evidence did not show a natural watercourse and that the contract
proved (which was the same as that alleged in the complaint) was of
no validity. Held, that in respect to the contract this was a de-
cision of a matter which had been determined by the circuit judge