There is not a particle of evidence to sustain the finding that the plaintiff is, and was on the 1st of May, 1877, the owner of the premises in question. Without such ownership it is very clear that this action cannot be maintained. This is virtually conceded by counsel; but it is said that on the first trial the defendants admitted the plaintiff’s title, and that such admission was preserved in the first bill of exceptions. The record of the proceedings upon the trial had in January, 1880, however, is not here for review. The only bill of exceptions before us for consideration is the record of the proceedings had upon the trial in November, 1881, and that is certified to “ contain ail the evidence given on the trial,” and it fails to contain any admission or proof of title. As the only record before us contains no evidence nor admission to sustain this essential finding of fact, the error becomes manifest, and cannot be obviated nor cured by an assertion that some other record before us upon some former appeal did contain such admission. The failure to make the proof or incorporate such admission, if made, into this record, was probably a mere inadvertence, but such failure is nevertheless a fatal error.
It has often been held that discriminations in the valuation and assessment of property, arising from mistake of fact or errors in computation or judgment on the part of assessors, do not necessarily vitiate a tax, but that an intentional disregard of law in such discrimination does. Weeks v. Milwaukee, 10 Wis., 264; Dean v. Gleason, 16 Wis., 15; Hersey v. Supervisors, 16 Wis., 185; Smith v. Smith, 19 Wis., 615; Lefferts v. Calumet Co., 21 Wis., 688; M. I. Co. v. Hubbard, 29 Wis., 51; Hersey v. Barron Co., 37 Wis., 75; Marsh v. Clark Co., 42 Wis., 510.
We have very grave doubt as to the evidence being suffi*116cient to justify us in holding an intentional discrimination in’ the valuation and assessment of the property in the city during the year in question. But, on account of the inadvertence above referred to, and the statement of counsel for the respondent that the trial court regarded the taking of th% testimony as a mere formal matter, and interposed and prevented the taking of further testimony, we have concluded not to order a final disposition of the case upon this appeal, but to confine our determination to the failure to prove title, leaving the other question open for future consideration. For these reasons the order of the circuit court will be reversed, and the cause remanded for a new trial.
By the Court.— So ordered.