#### Mock and another vs. Erdmann and another.

PRACTICE: (1) *Judgment in appellate eornt on appeal from justice’s court.*(3) *Ya/riance*— Nonsuit.

1. On appeal from a justice’s court, under the revised statutes of 1858, where there is no trial *de novo*in the appellate court, it can only affirm or reverse the judgment of the justice, in whole or in part, and cannot render judgment upon the merits. *Owmeyvs. Boyle,*14¶13.,370, and *Stoppenbach vs. ZoJvrlmt,*31 id., 885, re-affirmed.

3. In an action for injuries done to plaintiff’s vehicle while in use,'for hire, hy defendant, on the ground of the negligence of the latter, where no evidence of such negligence was adduced, a nonsuit was properly granted, although plaintiff proved a promise of defendant to pay for such injuries; the action not having proceeded upon such nipmise..

*114APPEAL from tbe County Court of *Milwaukee*County.

Action before a justice, to recover damages for alleged injuries to a carriage hired of the plaintiffs by the defendants. The cause of action stated in the complaint is, “ that the defendants, not regarding their duty in that behalf, so carelessly, improperly and negligently used and drove the horse and vehicle of the plaintiffs, that, on account of their carelessness and negligence and improper conduct, the said vehicle was torn, broken and injured, to the plaintiffs’ damage of seventy-five dollars.” The justice rendered a judgment of nonsuit, from which the plaintiffs appealed to the county court. In that court the appeal was heard upon the original papers aud return of the justice, no affidavit being filed by either of the parties to entitle them to a new trial. Before, the justice, one of the plaintiffs testified that he had a conversation with the defendants after the accident, on the day of its occurrence, and was told by them how it happened. They said they had hitched the horse near the railroad track at Wauwatosa, and, just as they were unhitching him, a train came along and frightened the horse, so that he backed up and tipped over the buggy, and then ran about half a block, when he stopped. One of the defendants was thrown out. They said further that the buggy would be brought in the next day, and the plaintiffs should get it fixed, and they, the defendants, would pay all the damage. The above is all the testimony given to explain how the injury occurred. The county court reversed the judgment of the justice, and rendered a j udgment against the defendants for $7 0 and costs. From this judgment the defendants appealed.

*Mann &*Coizhausen, for appellants:

1. On an appeal like this, the judgment of the county court is limited to the affirmance or reversal of the judgment of the justice, in whole or in part. No new judgment can be rendered ■on the merits. *DyJcen v.*Munson, 2 Wis., 245 ; *Carney v. Doyle,*14 Wis., 270; *Stoppenbach v. Zohrlaut,*21 Wis., 385. 2. The ‘Only evidence as to how the injury occurred, is the admission *115of tbe defendants, and tbat does not sbow negligence. Tbe hirer in tbis case is bound to ordinary care, and is answerable only for ordinary neglect; and tbe burden of proof is on tbe bailor to sbow negligence, except where tbe bailee returns tbe goods in a damaged condition and refuses to give any account of bow tbe injury occurred. 2 Kent’s Comm., 790, 791; Edwards on Bailments, 811, 820.

*Johnson &*Rietbrock, for respondents:

1. Tbe defendants hired the property in good condition, and returned it damaged; it therefore devolved upon them to explain tbe cause satisfactorily. Their account shows negligence. No prudent man will bitch a horse near a railroad track, without first knowing tbat tbe animal is accustomed' to tbe noise of passing trains. Tbe offer of tbe defendant to pay damages was a confession of conscious negligence. *Logan v. Matthews,*6 Barr, 417. 2. Tbe promise of tbe defendants to pay all damages was binding in law. Tbe action was one *ex contractu,*based on tbe contract of bailment. Although tbe promise was not alleged in tbe complaint, yet, tbe fact being proved, tbe complaint should have been amended by tbe court. 8. Tbe county court was authorized to give a new judgment for damages, upon tbe merits, and was not limited to a mere reversal of tbe judgment of nonsuit. Counsel contended tbat tbis court in its decisions upon tbe subject, overlooked tbe difference between tbe statutes of 1839 and 1849, and tbat of 1858. Tbe statutes of 1839 and 1849 provided for a *certiorari*to bring up for review from tbe justice only tbe errors assigned. Tbe statute of 1858 provides for an *appeal,*and not for a *certiorari;*it provides for a review of tbe whole case, and a new finding and judgment, if need be. Tbe earlier decisions were under tbe statutes of 1839 and 1849, and, even if correct as applied to those statutes, should not have been followed and applied by tbe court to tbe statute of 1858, as was done in' *Carney v.*Doyle, 14 "Wis., 270, and *Stoppenlach v. Zohrlaut,*21 Wis., 385. Tbe doctrine of *Dyhens v. Munson,*2 Wis., 245, when applied to *116the statute of 1858, supports the power of the county court to render a new judgment.

Cole, J.

This cause was commenced in a justice’s court. On the trial, after the plaintiffs closed their case, the defendants moved for a nonsuit, which was granted by the justice. The plaintiffs then appealed to the county court, but omitted to file the necessary affidavit as to the amount of their claim, so as to secure a trial *de novo*in that court. The cause was therefore tried in the county court on the original papers and the return of the justice; and judgment was rendered in favor of the plaintiffs for $70, and costs. The first objection taken to this judgment here is, that the county court had no authority whatever to render a judgment upon the merits, but was limited to a mere affirmance or reversal of the judgment of the justice, in whole or in part. This position is unquestionably sustained by the previous decisions of tins court as to the power of the appellate court in cases of this character. *Carney vs.*Doyle, 14 Wis., 270; *Stoppenbach vs.*Zohrlaut, 21 id., 385.

In the case of *Carney vs.*Doyle, considerable weight is given the previous decision of the court in *Dykens vs.*Munson, 2 Wis., 245, construing the provisions of the statutes of 1849. And that case to some extent followed the earlier cases in Chandler, arising under the statutes of 1839 and the statutes of 1849. *Phillips vs. Geesland,*1 Chand., 57; and *Hibbard vs.*Bell, 3 id., 206. In all these-cases, so far as the court had occasion to consider the power of the appellate court in this class of cases, it was declared that that court could only reverse or affirm the judgment of the justice in whole or in part, and had no authority to enter judgment upon the merits.

The correctness of the decision in *Carney v. Doyle*and *Stoppenbach v. Zohrlaut*is questioned by the counsel for the respondents, who insists that the court failed to give due weight to the difference between the provisions of the statutes of 1839 and 1849 and our present statute, and conse*117quently, it is said, misapplied tbe trae doctrine of *Dykens v. Munson.*Tbe latter case, it is suggested, was removed to tbe county court by *certiorari,*tbe office of wbicb writ was merely to give tbe appellate court power to review and correct errors assigned in tbe proceedings before tbe justice; while *Carney v. Doyle*came up by appeal, wbicb, *ex vi*termini, gave tbe appellate court power to review tbe whole record, and pronounce a judgment upon tbe merits “ according to tbe justice of tbe case.” It is true, tbe present statute provides for an appeal from tbe judgment of a justice in all cases, and bas abolished tbe statutory writ of *certiorari.*And formerly there was likewise a very broad distinction between proceedings on error and on appeal, and tbe jurisdiction exercised by tbe appellate court was certainly widely different in tbe two cases. But because this was once a well established distinction as to tbe mode of proceeding in tbe two cases, it is not safe to assume that under tbe code tbe same distinction is inflexibly kept up. Tbe legislature bas provided that all civil causes may now be removed to tbe appellate court by appeal instead of a writ of error or certiorari, and yet it does not necessarily follow from this that tbe intention was that tbe appellate court should review tbe whole case upon tbe merits, and give judgment accordingly to tbe very justice of tbe case. In common law actions tried by a jury, this court is confined to an examination of tbe errors upon tbe record, although tbe case may come up by appeal. Because tbe case comes up by *appeal*instead of *writ of error,*it bas not been supposed that tbe jurisdiction of this court over tbe cause was enlarged, or in any degree changed. And so in these cases removed from tbe justice to tbe county or cbcuit court by appeal. Tbe proceeding by appeal was, doubtless, only intended as a substitute for tbe wiit of *certiorari,*when that writ would formerly have been resorted to; but this change of tbe method of bringing the cause to tbe appellate court was not intended to enlarge tbe jurisdiction of tbe court of review-*118Tbis bas been our yiew of tbe statute, and we still tbinlc tbis construction of it is correct. And it follows from tbis that tbe county court bad no power to render a new judgment upon tbe merits, as was done in tbis case.

We are, furthermore, inclined to bold, upon tbe record, that tbe judgment of tbe justice was correct, for tbe reason that tbe evidence failed to show negligence on tbe part of tbe defendants. Tbe defendants, when they returned tbe horse, gave a full account as to bow tbe injury happened. It is true, tbe defendants promised to pay all damages, but tbis is not to be construed into an admission that tbe injury was caused by their misconduct. They might have been willing to make good tbe loss though not in default. Tbe action was not upon tbis promise; if it bad been, we are inclined to think, upon tbe evidence before us, tbe plaintiffs should have recovered. But as tbe case now stands, we think tbe judgment of tbe county court must be reversed, and that of tbe justice affirmed.

*By the Court.*—So ordered.