Lombard vs. McMillan and another. such statute. No objection was taken by plea in abatement, or by demurrer. The court, by DEADY, J., said, in effect, that such statute does not limit the jurisdiction of the court, but qualifies the right of plaintiff to maintain his action. The right of action exists independent of the statute, and the objection that the prescribed condition was not performed, which qualifies the remedy by suit to recover the tax wrongfully collected, could only be taken advantage of by plea in abatement. From the foregoing we conclude that the condition prescribed by ch. 278, Laws of 1883, precedent to the commencement of a suit by the former owner of lands, to avoid a tax deed thereon, did not affect an existing cause of action to void such deed, or go to the jurisdiction of the court to entertain such cause of action, but qualified or restrained an existing right to the remedy to enforce such cause of action; hence, the nonperformance of such condition could only be taken advantage of by demurrer, if such failure appeared upon the face of the complaint, and, if not, as in this case, by plea in abatement. No such plea having been interposed by defendant McMillan, the benefit of such statutory restraint upon the remedy was effectually waived and lost for all the purposes of the action unless in effect restored by the bringing in of the state as a defendant. 3. The next important question is, Was the state properly brought in as a defendant and permitted to plead, in abatement of the action, nonperformance of the condition precedent to the institution or maintenance thereof prescribed by the act of 1883? The state conveyed these lands, and received its grantee's money therefor. Its conveyance purported to pass the title to such grantee. It was under some obligation, the nature of which it is not necessary here to determine, to make such title good or refund the money paid therefor. As the learned circuit judge said, it was also interested in enforcing collection of the public revenues. Lombard vs. McMillan and another. These conditions, obviously, in the judgment of the legislature, were sufficient to warrant the passing of the act of 1885, authorizing the state to be made a party for the purpose of protecting the interests of the person claiming title under its conveyance, and in that way of protecting its own interests. We fail to see wherein such act contravenes any constitutional right of the plaintiff. He failed to comply with the conditions of the act of 1883, after the passage of the act of 1885, before the plea in abatement was filed by the state. That was a matter of his own choosing. The act expressly provides for making the state a party defendant in actions pending at the time of its passage, and obviously to subserve the purposes of the law, heretofore stated. Now, to say that it was error to allow the state to come in, pursuant to such act, and interpose the plea in abatement, is, in effect, to nullify such act. We find nothing in ch. 74, Laws of 1889, to change the relation of the state to the subject in this action. It provided that all titles obtained by the state, pursuant to the law of 1885, to lands circumstanced as those here in suit, should vest in the grantees of the state or those claiming under such grantees. The purpose of the deed taken under the act of 1885 being obviously, as before stated, to strengthen the title of the grantees of the state so far as relates to lands theretofore sold, its interest in maintaining the title of such grantees was just the same after the act of 1889 as before. No reason is perceived why such act can cut any figure in the matter. It follows, from the foregoing, that the state was properly made a party defendant, that its plea of abatement was properly sustained by the trial court, and that the judgment in abatement of the action was properly rendered. By the Court.- The judgment of the circuit court is affirmed. Daniels vs. Smith. DANIELS, Appellant, vs. SMITH, Administrator, Respondent. March 22-April 7, 1897. Appeal: Finding sustained. Upon appeal from a judgment of the circuit court disallowing claims against an estate, if the findings of the court are fairly supported by the evidence such judgment will be affirmed where, though the evidence on the part of the claimant is not specifically contradicted by any witness, it is rendered inherently improbable by other evidence. APPEAL from a judgment of the circuit court for Marathon county: CHAS. V. BARDEEN, Circuit Judge. Affirmed. For the appellant there was a brief by John Livermore, attorney, and Bump, Kreutzer & Rosenberry and C. F. Eldred, of counsel, and oral argument by Mr. Eldred. For the respondent there were separate briefs by Brown & Pradt, attorneys, and Silverthorn, Hurley, Ryan & Jones, of counsel, and oral argument by Neal Brown. WINSLOW, J. The appellant filed two claims against the estate of his deceased brother, Morgan G. Daniels, one for $10,271.21, claimed to be due upon an account stated, and one for $600.61, claimed to be due upon open account. Upon trial in the county court, the first claim was disallowed, and, on the second, $480.16 was allowed. Upon appeal to the circuit court, the action was tried by the court, and findings were made to the effect that neither claim was proven to be just, and both were disallowed. The appellant claims that these findings are against the clear preponderance of the evidence. We have examined the evidence and the opinion of the trial judge, and we think the evidence fairly supports the findings. While it is true that there is evidence on the part of the claimant which is not specifically contradicted by any witness, it is also true McMahon vs. Eau Claire Water Works Co. that there are many facts in evidence rendering the evidence of these witnesses inherently improbable and incredible. Such facts may undoubtedly be controlling, even in the absence of specific denial or contradiction. They were so regarded by the trial judge in the case, and apparently with good reason. By the Court.- Judgment affirmed. MCMAHON, Respondent, vs. EAU CLAIRE WATER WORKS COM- March 23-April 7, 1897. Damages: Cross-examination: Remarks by court: Waiver of written charge. 1. In an action for a personal injury caused by negligence, a verdict for $5,000 damages is held not excessive, where there was evidence that the plaintiff was suffering from paresis as a result of the injury. 2. Parties should be liberally indulged in the exercise of the right to cross-examine witnesses, so long as anything of value is likely to be brought out; but the court has a large discretion in the matter, and its exercise thereof to shut out unnecessary and useless questions will not be held error, where no substantial rights of the appellant appear to have been prejudiced thereby. 3. A judgment will not be disturbed because of remarks made by the court to counsel, during the trial, relative to his mode of crossexamining witnesses or the unnecessary repetition of questions, where it does not affirmatively appear that the appellant was prejudiced thereby. 4. If, when a jury returns into court for further instructions, the stenographer is absent, but one of defendant's counsel is present, and he keeps silent when the court remarks that instructions cannot be given in the absence of the stenographer without the consent of parties, his silence must be deemed to be consent, and a waiver of the necessity of a written charge. APPEAL from a judgment of the circuit court for Eau Claire county: W. F. BAILEY, Circuit Judge. Affirmed. McMahon vs. Eau Claire Water Works Co. The defendant owned a system of waterworks in the city of Eau Claire, with the usual system of pipes along the city streets. At one place in the street called Galloway street the Eau Claire river, at a time of freshet, had washed out a part of the street and uncovered the defendant's water pipe. While the defendant was repairing and relaying its pipes, and before it had completely filled the gully made by the freshet and the excavations made for relaying its pipe, a fire occurred in the nighttime. The plaintiff was a fireman. He rode to the fire on the hose cart, as was the usual means of getting to fires. While being driven rapidly along Galloway street, towards the fire, the horses stumbled in the sand thrown up in making the excavation. The plaintiff was thrown off the hose cart, and against the side of the excavation, and injured. The negligence claimed was the failure to place sufficient barriers about the excavation to warn persons upon the street and prevent approach to it. There was a general verdict for the plaintiff for $5,000. A motion for a new trial was overruled, and judgment given for the plaintiff upon the verdict, from which the defendant appeals. H. H. Hayden, for the appellant. T. F. Frawley, for the respondent. NEWMAN, J. Six alleged errors are discussed in the appellant's brief,-one relating to the amount of damages found by the verdict; five relating to matters of practice arising upon the trial. 1. Are the damages excessive? The damages assessed by the jury are large, disproportionate to the apparent seriousness of the injury. Yet there is much testimony of physicians tending to show that the real injury is much more serious than is apparent by simple observation. Such testimony tends to show that the plaintiff's injuries are to the nervous system, to the brain and spinal cord; that they have VOL. 95-41 |