Braun v. Campbell

137 Wis. 401 | Wis. | 1909

SiebeckeR, T.

Tbis is an application by tbe plaintiff in -error for relief against alleged false entries in a justice’s docket, which tbe petitioner claims operate to bis injury, and be therefore demands that tbe justice be compelled to correct tbem. Tbe power of tbe circuit court to compel a justice to correct bis docket entries so as to make tbem conform to and correctly represent tbe actual facts of which they purport to be a record has been upheld by tbis court. State ex rel. Marsh v. Whittet, 61 Wis. 351, 21 N. W. 245; State ex rel. Green v. Van Ells, 69 Wis. 19, 82 N. W. 32. The-WhiMet Case clearly bolds that, if a justice “makes incorrect entries, tbe circuit court, in tbe exercise of its supervisory-control, bas tbe power by mandamus to compel bim to malee tbe true entries according to tbe real facts.”

Tbe facts stated in tbe petition of tbe plaintiff in error are that tbe docket falsely states that tbe case was called at 9 o’clock, tbe hour to which tbe case bad been adjourned, that tbe justice and plaintiff’s counsel then appeared, and that tbe defendant appeared but offered no evidence, and avers that in fact tbe justice and plaintiff’s attorney failed to appear during bis presence at tbe office of tbe justice from 9 o’clock to 10:20 o’clock. Tbe allegations of the petition stand admitted by tbe motion of defendant in error to quash the writ upon tbe ground that the facts stated did not show any ground entitling petitioner to relief. Tbe circuit court quashed tbe writ, bolding that, within' tbe decision of tbe Van Ells Case, tbe docket entries, specifying tbe hour when tbe case was called, that plaintiff’s counsel then appeared, and that defendant appeared in person but offered no evidence, imported verity, and could not be contradicted and corrected in this proceeding. We find no justification in tbe Van Ells Gase for this ruling. In that case tbe petition and reply to the return alleged that tbe docket entiles failed to 'record an adjournment which tbe justice bad ordered immediately after receiving tbe verdict of tbe jury. These allegations were denied by tbe return of the justice, and no evidence was adduced to show that the return was incorrect. Upon this state of tbe record this court held that tbe return must stand as made, and that on its face it imported verity, since there was no evidence to impeach it.

The case is in harmony with the rule recognized in tbe Whiltet Case, that mandamus may issue to compel a justice to correct docket entries to accord with the actual facts, if tbe case presented calls for this extraordinary remedy. In tire instant case there is no return to the alternative writ, but a motion was made to quash the writ, thus challenging the sufficiency of the petition to entitle petitioner to the relief demanded. The application for the mandamus is within the field of the Whitiet Case, and the question is whether petitioner, upon the facts stated, shows himself entitled to this extraordinary remedy.

It is well established that the writ of mandamus will not be employed to perform the functions of appeal or writ of error. Nor will the writ be awarded for relief from the action of inferior courts^ unless it be clearly shown that such court violated a plain duty, that this violation of duty has produced a substantial injury to the petitioner for which he has no other adequate remedy in the law, and that he will be subjected to an injustice in the law unless this relief is awarded. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 19 N. W. 1081; State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N. W. 447; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 234, 82 N. W. 158; State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N. W. 158. The facts stated do not clearly inform us that the plaintiff in error is ■ not now indebted to the parties who recovered the judgment for the amount of the judgment, exclusive of the costs and disbursements. If it is now due there can be no financial liability in addition to the debt, except the costs and disbursements in justice’s court.

The plaintiff in error also asserts that he appeared at the office of the justice at the hour to-which the easehad been adjourned and set for trial, that he remained there for one hour and twenty minutes, and that neither the justice nor plaintiff’s attorney appeared during that time to proceed with the case. It appears that plaintiff in error rests his claim on the alleged facts that there was no appearance by the plaintiff, and that the justice was not present within the hour from the time the case was set for a hearing, nor within the twenty minutes after the expiration of the hour, during which time he was present. Under the circumstances petitioner’s claim to relief depends on the correctness of his claim as to the hour he appeared at the office of the justice. The loss of jurisdiction by the justice depends on the certainty with which the time of day was observed and involves a variation of twenty minutes. We do not deem this slight difference in time, so. asserted by plaintiff in error, can be received as a clear and certain fact, in the light of common knowledge respecting the liability of mistake in observing the time of day. The circumstances alleged in the petition as fending to show loss of jurisdiction and the falsity of the docket entries are surrounded by these uncertainties and do not present such a clear case of fact as called upon the court to award this extraordinary remedy.

Coupling this uncertainty in the case with the fact that the amount of the pecuniary injury to petitioner may be only the small sum of costs and disbursements in the justice’s court, we are led to the conclusion that no occasion was presented for the issuance of the writ. The remedy is a legal one, but is granted only on equitable grounds, when, in the sound discretion of the court, it should be employed to-prevent a failure of justice in a matter of a weighty and important nature. State ex rel. Umbreit v. Seims, supra, and cases cited in the opinion.

We are of opinion that the trial court properly denied the writ.

By the Oowrt. — Judgment affirmed.