Callon v. Sternberg

38 Wis. 539 | Wis. | 1875

Cole, J.

The counsel for the plaintiff insists that, upon the writ of certiorari, the circuit court could not consider the evidence, but could only inquire into jurisdictional errors 'and defects which appeared upon the docket entries of the justice or the pleadings in the cause. This position is fully sustained by the decisions of this court.

In the case of the Milwaukee Iron Co. v. Schubel, 29 Wis., 444, in considering the nature and office of a common-law cer-tiorari, and what questions will be considered upon it, this court said: “ In this state the common-law writ has almost invariably been brought to review the proceedings and judgments of justices of the peace, and this court has, with much uniformity, declined to consider upon such a writ any but jurisdictional questions, or such questions of law as might arise upon the docket entries of the justice. The court has refused to try the merits of the action by a common-law writ; or to examine any alleged error of the justice in his rulings on the trial; or to consider any objection which involved an inquiry into the evidence.” p. 450. The same doctrine is laid, down in Baizer v. Lasch, 28 Wis., 268; State v. Huck, 29 id., 202; and Owens v. The State, 27 id., 456. The case of Combs v. Dunlap, 19 id., 591, is not in conflict with the above decisions. In that case the justice stated in his return that the plaintiff failed to appear on the adjourned day — a matter which would properly appear from the docket entries) and still he went on and tried the cause, instead of rendering a judgment of non-suit as he should have done.

Where a common-law certiorari is' issued to review the proceedings of boards and officers not strictly judicial, and who are acting out of the course of the common law, as the proceedings of boards of review in the equalization of assessments, or the action of boards of supervisors in laying out and vacating highways, there a different rule obtains. In that class of cases the court will upon such a writ examine the entire proceedings to see if they are regular and in conformity to the statute. Milwaukee Iron Co. v. Schubel, supra. But where the writ goes to review the judgment rendered by a justice, the court will not examine the evidence given on the trial. It is true, the statute makes it the duty of the justice to take full minutes of all evidence given before him on the trial of a cause, and to file the same among the papers in the case (sec. 77, ch. 120, R. S.); but this is not brought up on a common-law certiorari. Martin v. Beckwith, 4 Wis., 219.

It follows from these views that the judgment of the circuit court must be reversed, and the judgment of the justice must be affirmed.

By 1hi Court — It is so ordered.