#### Mechanical Appliance Company, Appellant, vs. A. Kieckhefer Elevator Company, Respondent.

*September 14*

October *3, 1916.*

*Appeal: Review: Presumptions: Findings of fact: Milwaukee civil court: Reversal of judgment: Effect.*

1. In reviewing on appeal the result of a trial, the presumption that the original jurisdiction applied correct rules of law should prevail unless the contrary clearly appears.

2. Findings of fact hy a trial court are, in general, to be deemed verities on appeal unless they satisfactorily appear to be contrary to the clear preponderance of the evidence.

8. In determining whether findings of fact are contrary to the clear preponderance of the evidence, regard should be had to the superior advantages which a trial court has for determining the weight of evidence.

4. The rule as to necessity of a clear preponderance of the evidence against findings of fact to Warrant disturbing them, does not apply if it satisfactorily appears that some error of law efficiently influenced tbe result.

5. In considering, on appeal, whether the trial jurisdiction efficiently erred as to any matter of law or fact,-the result in such jurisdiction should not be disturbed unless clearly wrong.

6. The foregoing rules are applicable to appeals to the circuit court from the Milwaukee civil court.

7. An order of the circuit court unqualifiedly reversing a judgment of the Milwaukee civil court and granting a new trial on all issues necessarily vacates all the findings of the civil court.

Appeal from an order of tbe circuit court for Milwaukee county: E. 0. EschweileR, Circuit Judge.

*Affirmed.*

Tbe action was commenced in tbe civil court of Milwaukee county. It was to recover on contract for tbe sale price of a K7B UJ- HP. rotor sold defendant at $40.50, a K8A 5 HP. rotor sold defendant at $54, and $23.29 for repairing a K9 rotor. Tbe complaint was in tbe usual form.

Tbe defendant answered tbat tbe claim for $23.29 was for work and material to make tbe appliance referred to comply witb tbe warranty upon wbicb it was sold to defendant; tbat *66tbe claim of $40.50 was for a rotor delivered to defendant for tbe purpose of making an electric motor, sold by it to plaintiff, comply with tbe warranty thereof, and tbat tbe claim of $54 was for a rotor received by defendant wbicb it did not in any way agree to pay for and for wbicb it did not become indebted; and counterclaimed, in due form, for $Y94.98 for breaches of warranty.

Reply was duly made, putting in issue tbe allegations of tbe counterclaims and pleading a settlement in respect thereto.

Tbe cause was tried by tbe court, resulting in findings of fact and conclusions of law to tbe effect tbat plaintiff was entitled to judgment as claimed. Judgment was entered in plaintiff’s favor according to such findings and conclusions.

Appropriate exceptions were filed and tbe cause was duly carried by appeal, in defendant’s behalf, to tbe circuit court.

Tbe appellate court entered an order reversing tbe judgment and granting a new trial, specifying in an accompanying opinion, reasons therefor.

Plaintiff duly excepted to tbe order.

*Robert R. Freeman,*for tbe appellant.

Por tbe respondent there was a brief by Doe, *Ballhorn & Doe,*attorneys, and *Harold M. Wilkie,*of counsel, and oral argument by *Mr. Wilkie*and *Mr. Joseph B. Doe.*

MaRShall, J.

Principles which are quite familiar rule this case. They have been so frequently stated and applied, it would seem a useless repetition to do it anew, if it were not for evidence, now and then, either that they are not always kept in mind in determining upon tbe advisability of an appeal, or tbe force wbicb tbe court, in tbe interest of justice to litigants and tbe public, has been accustomed to give them, is not always appreciated. Erom tbe viewpoint suggested, we are constrained to make this restatement.

A court, in reviewing, on appeal, tbe result of a trial, should *67presume that the original jurisdiction applied correct rules of law, and that should prevail unless the contrary clearly appears. This applies in case of an appeal to the circuit court with 'the same force as an appeal to this court.

Findings of fact made by a trial court, are, in general, to be deemed verities on appeal unless they satisfactorily appear to be contrary to the clear preponderance of the evidence, and that applies to trials in the civil court of Milwaukee county. *Pabst B. Co. v. Milwaukee L. Co.*156 Wis. 615, 146 N. W. 879; *Keck v. Michigan Q. S. Co.*158 Wis. 500, 149 N. W. 208.

In determining whether findings of fact are contrary to the clear preponderance of the evidence, regard should be had to the superior advantages which a trial court has for determining the weight of evidence.

The rule as to necessity of a clear preponderance of the evidence against findings of fact to warrant disturbing them, does not apply if it satisfactorily appears that some error of law efficiently influenced the result.

In considering, on appeal to this or any court, whether the trial jurisdiction efficiently erred as to any matter of law or fact, the result in such jurisdiction should not be disturbed unless clearly wrong. *Powell v. Ashland I. & S. Co.*98 Wis. 35, 73 N. W. 573; *Addington v. Viroqua,*155 Wis. 472, 144 N. W. 1130; *Slam v. Lake Superior T. & T. R. Co.*152 Wis. 426, 140 N. W. 30.

Counsel for appellant, — appreciating a clear preponderance of the evidence against the findings of the civil court, in this case, was essential to warrant the order complained of, but not, 'perhaps, the degree of certainty required that the circuit court did not apply that test and did not correctly determine the matter, — contends that such test was not applied, and that, in any event, the determination was erroneous. It is suggested, and not without some reason, that the material findings as to the counterclaims were not set aside and that the new trial *68was granted as matter witbin tbe sound discretion of the circuit judge and not as a matter of right, having regard to the principles above stated, applicable to the situation.

We must confess that the language used by the trial judge in stating reasons for the conclusion reached, is somewhat ambiguous, but, indulging in the presumptions in favor of the decision which must be applied thereto, and giving to the court’s language the reasonable construction it will bear, against error, we come quite short of being able to conclude, either that the court, clearly, did not determine that the civil court’s findings of fact were against the clear preponderance of the evidence, or that it did set them aside and on that ground. The order unqualifiedly reversed the judgment of the civil court and granted a new trial on all issues. The necessary effect of that was to vacate the findings. The language of the opinion, filed, fairly construed in the light of the entire situation, is in harmony therewith. It is not thought advisable to extend this opinion by embodying such language herein and pointing out the features which persuade us to the conclusion we have reached.

In solving the question of whether the circuit court erred in holding that the civil court’s findings are contrary to the clear preponderance of the evidence, the reasons in that regard which have been urged upon our attention by counsel for appellant have been considered. Following the practice of not, other than in exceptional cases, quoting and discussing the evidence as to such a question, where a conclusion has been reached that the judgment must be affirmed, that course will be taken here. No efficient reason seems to exist for reversing the circuit court’s decision.

*By the Court.*— The order is affirmed.

Eschweiler, J., took no part.