(dissenting). The only reason why the plaintiff did not have judgment in its favor on the first appeal of this case (172 Wis. 278, 178 N. W. 855) was because of the view that this court took, contrary to that of the trial court, that there could not be segregated an invention relating to the feeding and handling of paper as distinguished from a cylinder printing press from the original application.
It now appears as an uncontradicted fact that that which was so held by this court to be impossible was, by an examiner of the United States patent office, prior to the commencement of this suit, suggested could and directed should be done and was done by the defendant Cheshire through his attorney by his amendment. That amendment retained out of the 124 claims originally filed a certain number designated by the examiner as “relating to mechanism for carrying the sheet to and from the printing cylinder.” Almost an exactly similar segregation was made by the trial court. This action by Cheshire was a substantial and vital admission that the thing could be done which plaintiff claimed .would bring the application within the terms of the contract. This substantial fact was concealed from the trial court and from this court by the wilful withholding of a document relating to the' invention that was called for. by the subpoena served upon Cheshire on his examination under sec. 4096, Stats. No question can be raised but that the terms of the subpoena were broad enough to include this amendment. Its being withheld is' attempted to. be justified solely on the ground that the demand of the subpoena was not sufficiently technical or specific in its description of that document.
This court has of late years been priding itself upon vying with the legislature in sweeping away technicalities that interfere with the granting or obtaining of justice. The present holding savors strongly of a reversion.
*373By sec. 2405m, Stats., created by ch. 214, Laws 1913, where, upon appeal or writ of error, it shall appear that for any reason justice has miscarried, this court may, in its discretion, reverse the rulings of a lower court regardless of whether or not proper motions, objections, or exceptions appear in the record.
We have here a situation where we are now confronted with a fact, knowledge whereof was peculiarly with the defendants and not some third person, and withheld by defendants, and which demonstrates that the plaintiff• and not the defendants is entitled to judgment. The unjust judgment, however, must stand because, and only because, of what is designated as a technical or legal lack of diligence on plaintiff’s part. But one case is cited in the majority opinion on this proposition, Wilson v. Plank, 41 Wis. 94. An inspection of that case discloses that we are now overruling rather than following that case. There the trial court, as here, denied the motion for a new trial. There this court held that such denial was an abuse of discretion. Some of the facts in that case relied upon were facts in the nature of an admission by the opposite party contrary to his position on the trial, and the court there uses as an illustration that where the issue is presented of payment of a note antd there is subsequently disclosed a deliberate admission of plaintiff that the note had been paid, it would unquestionably be a proper basis for granting a new trial. The illustration and that case and the situation here are parallel.
I think it was the duty of the court to hold upon the unquestioned facts here presented that the plaintiff is entitled to have the same now considered and judgment rendered conforming with what the real facts and the truth require and justice demands.
I am authorized to say that Mr. Chief Justice Vinje and Mr. Justice Doerfler concur in this dissent,