In the argument of the motion for a rehearing, our attention is called to the fact that leave was given on motion in the circuit court to amend the complaint, so as to aver that the words spoken in Grerman were understood by those who heard them. The record shows this, and so much of the former opinion as is based on the want of such averment was *244written, of course, under a mistake of facts. But the main objection, that the complaint does not set out words charging a crime, remains.
"We are referred to the case of Lounsbury v. Purdy, 18 N. Y., 520, where it was held that a complaint which omits facts essential to a cause of action, if those facts were proved at the trial after the judge refused to dismiss the complaint, may he amended under that provision of their code which is the same as sec. 87, ch. 125 of our revised statutes; and that although the complaint was not in fact amended, the defect could not he taken advantage of on appeal.
If that decision is correct, then it would follow that if the cause had been taken without a case or bill of exceptions to the court, of last resort by appeal or writ of error,- the judgment must have been affirmed, although the complaint set out no cause of action whatever, and there was nothing to show what testimony was given on the trial. Eor the presumption is in favor of the validity of the judgment, and that presumption could not be rebutted or controlled by showing a bad or defective complaint; because if there was evidence that made out a good cause of action, it would cure the complaint; and that being so, such evidence would be presumed; otherwise a judgment might be reversed without a case or bill of exceptions which could not be with one. If the doctrine in the case of Lounsbury v. Purdy is to prevail, I do not see what need there is, after judgment, of any complaint; for if a complaint which shows no cause of action whatever may be sustained because the evidence is sufficient, why not decide that after judgment it is a matter of indifference whether there are any pleadings or not, and that this court should be governed entirely by the evidence and exceptions as to its competency in determining whether the judgment should be reversed. or affirmed ? But it is said the statute authorizes the pleadings to be conformed to the facts proved when the claim or defense is not thereby substantially changed. Is not a sub*245stantial change of tbe complaint also a substantial change of the claim ? Is not the change of a claim from an invalid, to a valid one — from a claim which the plaintiff has no legal right to enforce, to one which he has a legal right to enforce— a material, a substantial change? It appears to ns that it is. We are not inclined to follow the New York decision, even as to the construction of sec. 37, above cited. We have, however, other statutory provisions than that. Section 15, ck. 264, Laws of 1860, provides that “it shall only be necessary to cause a bill of exceptions to be settled and made a part of the record in cases where the party desiring to appeal, or sue out a writ of error, may desire to have reviewed in the supreme court any alleged error which, without such bill of exceptions, would not appear on the face of the record.” This clearly shows that substantial defects in the pleadings may be taken advantage of on appeal, without a bill of exceptions. We think the former rule respecting pleadings defective in substance has not been repealed, and should not be departed horn.
The motion for a rehearing must be overruled.
Dixon, C. J.No decision is an authority upon a point which is passed unobserved. The point that there was no exception in Thurber v. Jones, 14 Wis., 16, was not made by counsel, and I know was not observed or considered by the court I refer to the case of Tomlinson v. Wallace, 16 Wis., 224, where the point was made in this court, and decided the other way. See also Mead v. Bagnall, 15 Wis., 162, where the court took the same view of the law as in Tomlinson v. Wallace. Mr. Justice Paife said it was difficult to see how the appellant could raise the objection in this court for the first time on appeal, without even having appeared in the court below. Anri see likewise Bogert v. Phelps, 14 Wis., 88, in which it was expressly decided that this court will review no questions in a cause which were not fairly presented for. the consideration of the court before which the action was originally tried.
*246Tbe courts of New York bave beld with singular unanimity of opinion, and I tbink rightly, tbat under tbe code, after trial upon tbe merits and Arerdict or judgment, objection cannot be taken to tbe sufficiency of tbe complaint upon appeal, no objection and excejffion baying been taken at tbe trial or in tbe court below. Tbe reason is obvious, and well stated in some of tbe decisions. A party cannot lie by, withhold bis objec-ions at tbe trial, allow tbe plaintiff to come in with bis proof, and take bis chances of defeating him on tbe merits; and then, if be is beaten, come here to object for tbe first time tbat tbe complaint is defective. If the objection bad been taken at tbe trial, it might bave been obviated by amendment. Such a course of proceeding is contrary to tbe whole spirit of tbe code, which discourages dishonesty and unfairness among practitioners and parties. Some of tbe authorities are cited in my opinion in Bobbins v. Deverill, ante, p. 146, and also in tbe opinion ot tbe majority m this case. Eor convenience I rejseat them here : Mosselman v. Caen, 34 Barb., 66; S. C., 21 How. Pr. R., 248; Pope v. Dinsmore, 8 Abb., 429; Carley v. Wilkins, 6 Barb., 557; Hunt v. Bloomer, 6 N. Y., 341; Johnson v. Whitlock, id., 345; Magie v. Baker, 14 N. Y., 435; Weed v. N. Y. & Harlem R. R. Co., 29 N. Y., 616; Morton v. Pinckney, 8 Bosw., 135; Bowdoin v. Colman, 6 Duer, 186; Halsey v. Black, Ct. of Appeals, 26 How. Pr. R., 97, 102; Sharp v. The Mayor &c.., 25 id., 392-3; Lounsbury v. Purdy, 18 N. Y., 520-21. The three last cases relate more especially to tbe power of amendment.
How my brethren can say tbat there is no power of amendment in this case, is certainly beyond my comprehension. Tbe statute, section 37, chap. 125, R. S., confers it in so many words —“ by inserting other allegations material to the case.” It may be done either before or after judgment; and I cannot but agree with the Court of Appeals in Lounsbury v. Purdy, tbat tbe power exists as to any material allegation which does not change substantially the claim of the plaintiff.
Again, it seems to me that tbe decision is in payable viola-*247tiou of section 40 of tbe same statute. Tbat section provides tbat tbe court shall, in every stage of tbe action, disregard any error or defect in tbe pleadings or proceedings wbicb shall not affect the substantial rights of tbe adverse party; and no judgment shall be reversed or affected by reason of such error or defect "What substantial right of tbe defendant has been affected by reason of tbe omission or defect in tbe complaint, tbat be should have the judgment reversed after a full and fair trial upon the merits, at which be took no exception — is more than I can see. As to section 15, chap. 264, Laws of 1860, it is clear to me tbat it has no application to this question. It applies to appeals from judgments and orders on demurrer, and other orders, where a bill of exceptions is unnecessary. Such judgments and orders may be reviewed without a bill of exceptions ; but there can be no review in this court of a question wbicb was never made or decided in tbe court below.
For these reasons I cannot assent to tbe decision of tbe majority in this case, but am of opinion tbat tbe judgment of tbe court below should be affirmed.
By the Court.■ — The motion for a rehearing is denied.