#### City of Shawano, Appellant, vs. Cayouette and others, Respondents.

*November 27*

December *13, 1907.*

*Appeal and error: Record: Exceptions: Manner of talcing.*

1. Written exceptions to findings are necessary to entitle a party to a review on appeal of the evidence on the issues covered by the court’s findings, and must he filed with the clerk as provided by sec. 2870, Stats. (1898).

2, In an action tried by the court it appeared from the record that appellant proposed certain findings; that some of the court’s findings covered the proposed findings and were in effect as requested; that others were adverse to those proposed; while some of the proposed findings were not embraced in those of the court. *Held,*that an indorsement on the proposed find-*32mgs: “Findings proposed by plaintiff. Refused. To which refusal plaintiff duly excepted,” even if it could be treated as an exception to the findings of the court in conflict therewith, was too general to be available on appeal.

8. The function of an exception is to point out specifically to the trial court some particular matter as erroneous, and this cannot be accomplished by requesting a finding which merely negatives the finding of the court.

Appeal from a judgment of tbe circuit court for Shaw-ano county: JohN GoodlaNe, Circuit Judge.

*Ajji/nnect¡.*

This is an action in equity commenced by the city of *Shanvcmo*to compel defendants to remove an incumbrance from one of the public streets of the city. The complaint alleges the incorporation of the city, that the common council took proper steps to institute proceedings for the removal of the encroachment complained of in this action, and that the defendants, as tenants and owners of the lot in question, abutting on Andrews street, one of the public streets of the city, maintained a woodshed thereon which it is alleged encroached upon such street. The answer denied the encroachment and other allegations of the complaint. The evidence adduced upon the trial respecting the issue of whether or not the woodshed encroached upon the street was conflicting and contradictory. The court found that the woodshed did not encroach upon the public street as laid out and maintained by the city. Other findings of fact covering the allegations of the complaint and the issues were made, but need not be repeated for the purposes of this appeal. Judgment was awarded dismissing the complaint and for costs. No written exceptions to the findings of fact were filed with the clerk in conformity with sec. 2810, Stats. (1898). The plaintiff requested the court to make findings of fact as proposed in written findings submitted to the court. This the court refused to do, and to such refusal plaintiff took exception, indorsed upon the proposed findings, in form as follows: “Findings proposed by plaintiff. Eefused. To which re*33fusal plaintiff duly excepted.” The findings proposed by plaintiff cover many facts at issue in the case; among them the fact that the woodshed of the defendants did in fact encroach upon the limits of Andrews street. This is an appeal from the judgment dismissing the complaint.

P. *J. Winter,*city attorney, for the appellant.

Eor the respondents there was a brief by *Eberlem & Eber-lem,*and oral argument by *M. 0. Eherlein.*

Siebeckeb, T.

Appellant’s attack upon the findings of fact of the trial court is particularly directed to the finding that the encroachment upon the public street, as alleged and specified in the complaint, was not supported by the evidence. The bill of exceptions in the case does not contain any written exception to the findings made by the court. That exceptions to findings are necessary under the statute to a review on appeal of the evidence on the issues covered by the court’s findings is clearly established by the decisions of this court. Secs. 2870, 2875, Stats. (1898) ; *Treloar v. Osborne,*98 Wis. 461, 74 N. W. 99; *Evenson v. Bates,*58 Wis. 24, 15 N. W. 837; *Lederer v. Estate of*Kohn, 100 Wis. 662, 76 N. W. 604; *Nichols v. Superior,*109 Wis. 643, 85 N. W. 428.

The argument is made that this requirement is met by the exception taken to the refusal of the court to find the facts as appellant requested. As appears in the foregoing statement, appellant’s exception to such refusal is a general one to the refusal to make a long list of findings. Some of the court’s findings cover the proposed findings and are in effect as requested. Others are adverse to those proposed, while some of the proposed findings are not embraced in the court’s findings. If an exception to a refusal to find as requested could be treated as an exception to the findings of the court in conflict therewith, yet this exception is too general to be available on appeal. *Taft v. Kessel,*16 Wis. 273; *Bailey*
      *34
      *v. Costello,*94 Wis. 87, 68 N. W. 663. But we do not perceive Row an exception, to a refusal to find as requested can be deemed an exception to a finding as made by tbe court, even tbougb tbe requested finding is on tbe issue embraced in tbe finding actually made by tbe court. Tbe function of an exception is to point out specifically to tbe trial court some particular matter as erroneous, and tbis cannot be accomplished by requesting a finding wbicb merely negatives tbe finding of tbe court. To bold tbe exception to tbe refusal of such a requested finding a sufficient specification of error in courts’ findings would necessarily bide tbe exception in uncertainty and confusion. Sucb an exception would fail to point out tbe 'errors complained of with sufficient particularity. We deem tbe statutes and decisions on tbis question conclusive and to be to tbe effect that, to entitle a party to a review on appeal of tbe evidence, written exceptions must be filed with tbe clerk, as provided by sec. 2870, Stats. (1898).

Under these circumstances tbe only question for consideration is, Do tbe pleadings and findings of tbe court support tbe judgment? We find nothing in tbe record that raises any question of tbe correctness of tbe judgment awarded upon tbe pleadings and tbe findings of tbe court, and it must stand.

*By the Court.*— Judgment affirmed.