Action commenced May 29, 1947, by George Lazich against Cecelia Arsenovich, also known as Cecilia Desnicea, Cecelia Desnica, and Cecelia Desnitz, and the Wisconsin State Bank of Milwaukee to foreclose a mechanic's lien on a house owned by Cecelia Arsenovich. From an order of June 14, 1948, denying her motion for a new trial, defendant appeals.
Plaintiff had filed a lien for work done and materials furnished under a contract to put in a basement in a house owned by defendant, Cecelia Arsenovich, called Cecelia Desnica. Mrs. Desnica's defense was that the work was not satisfactory to her. She filed a counterclaim for rent she alleged was lost because of plaintiff's unsatisfactory work and for the cost of having another contractor complete the basement. The Wisconsin State Bank of Milwaukee did not appear, and the trial court found that it did not assert a claim to the premises.
There were at least three efforts by the court to solve the question raised. Toward the conclusion of the first trial of the case in December, 1947, Mrs. Desnica became dissatisfied with her lawyer. An adjournment was granted to give her an opportunity to secure other counsel. The court stated that it appeared that she had had at least two other attorneys in the case, that he was of the opinion that there was no cause for her dissatisfaction, and that her attorney had performed his services properly. However, because plaintiff's attorney did not object, the court ruled a mistrial and set the case for trial on February 2, 1948. At this time Mrs. Desnica was still without counsel although it appears that she had consulted some lawyers. The court refused to delay the case further, and it was tried.
The trial court found that plaintiff and Mrs. Desnica entered into a contract by which plaintiff was to raise her *Page 298 house and excavate and put in a basement for $1,800, which was to be paid in three instalments, the last falling due when the work was completed; that plaintiff had performed all the conditions of the contract except putting in a concrete floor and completing two of the windows which defendant prevented him from doing; that plaintiff's work and materials furnished were of good quality; that plaintiff did everything he should have done and could reasonably be expected to have done in the performance of the contract; that he complied with all city ordinances; that the defendant paid the plaintiff $300 on account; that the reasonable cost of the concrete floor was $150; and that the defendant owed the plaintiff $1,350 plus interest from June 25, 1946. It was at that time defendant ordered him off the job. On April 16, 1948, judgment was entered ordering that the premises be sold to satisfy the lien. From an order of June 14, 1948, denying defendant's motion for a new trial, she appeals. The appellant's dissatisfaction with the work done by respondent grows out of her feeling of disappointment with the result. However, the work done by the respondent is all in accordance with the contract. This is established by the evidence. There has been painstaking effort by three judges to adjust the matter. Two trials have been had. It is very apparent that the judge presiding at each trial labored under the consciousness that the qualities of certainty and ascertainability were important in the determination of this controversy. The repeated efforts on the part of the court, joined in by attorneys for respondent as well as the several lawyers who appeared at different times for appellant, leave no occasion either for anxiety about *Page 299 appellant having had a full opportunity to present her claim or for doubt that the correct decision has been made. The main contention of appellant on this appeal is that the trial court erred in not granting a new trial. It is urged that she should be given a new trial in the interest of justice because she was not represented by counsel and, therefore, her evidence was not properly and completely presented to the court and certain witnesses were not called to testify. While the record conclusively shows that the appellant's lack of counsel was no one's fault but her own, it also shows she has not suffered by reason thereof. Several attorneys would have represented her and counseled with her. One attorney adequately represented her in the first trial until she dismissed him for no apparent cause. The case was delayed from time to time at the appellant's request. The trial judge finally determined the delays were resulting in an injustice to respondent and ordered the trial to proceed.
Appellant cites several cases in which this court granted a new trial when it was shown that the controversy was not fully tried below, but that situation does not exist here. On the contrary, all the relevant issues were considered and decided by the trial court.
Appellant also cites cases holding that lack of counsel by the defendant was ground for granting a new trial. Those cases are beside the point. They are criminal cases in which the defendant had no opportunity to obtain counsel.
Respondent suggests there was never served on him a proposed bill of exceptions as required by secs. 270.44 and 270.47, Stats. He does not state specifically wherein these sections were not complied with. The record discloses that he received a copy of the proposed bill on December 6, 1948, and that on December 31, 1948, on proof of service and no amendments being offered, the judge signed the certificate settling the bill in accordance with sec. 270.44. There has *Page 300 been no motion to strike the bill. In view of the conclusion reached it is unnecessary to consider this point further.
By the Court. — Order affirmed.