41 Wis. 285 | Wis. | 1876
The practice of issuing a common-law writ of certiorari for the purpose of removing a cause from the circuit court to this court before trial and judgment, was adopted in the cases of Hauser and another v. The State of Wisconsin, 33 Wis., 678, and Martin v. The State, 35 id., 294. It is proper, however, to state that in neither of those cases was the question as to the regularity or correctness of the practice discussed or questioned by counsel, and the point was passed sub silentio by the court. But the learned counsel for the
To our minds it is a serious question whether this position of counsel is not correct and in strict accord with the principles and rules of practice which govern proceedings in civil and criminal actions. It is obvious that the writ is resorted to in the present case as a mode of appeal from the decision of the circuit court refusing to dismiss all proceedings in the cause. And the question is, whether such a ruling can be brought before this court for review by a common-law certio-rcvri. The circuit court is a court of general jurisdiction in civil and criminal matters, under the constitution; and it was proceeding in the action according to the course of the common law. If the court was proceeding in the cause without jurisdiction, the appropriate writ to be applied for from this court would seem to be the writ of prohibition, and not a common-law oertiorcori. It seems to us, if the writ is a proper process for correcting the alleged error of the circuit court in refusing to dismiss the proceeding, it might be resorted to at any stage of the cause to bring up for review any erroneous decision which that court might make. The great inconvenience which would result if such a practice is sanctioned, is too obvious to need comment. True, in the Hauser case the writ was sued out to review a decision of the municipal court of the city of Milwaukee refusing to quash an information for publishing a libel. In the Martin case the question was, whether the circuit court, under the circum
With respect to the motion before us, if we assume that the writ was a proper process to bring up the record of the proceedings of the circuit court for review, as has been done, still we are of the opinion that the writ must be quashed.
In the Hauser case, Mr. Justice Lyon states the doctrine of this court as to what questions are raised by the writ, as fallows: “It is well settled by numerous adjudications of this coui’t, that in this state, upon certiorari to an inferior court, the court out of which the writ issues will only inquire into errors or defects which go to the jurisdiction of the court below, and for all other errors or irregularities the party aggrieved must resort to his remedy by appeal or writ of error.” p. 680. It would seem evident that no broader scope can be given to the writ when it removes the proceedings of a court of general jurisdiction. It is only jurisdictional defects or errors which can be then inquired into.
The learned counsel for the defendants claims that the circuit court should have dimissed the proceedings because the evidence taken on the preliminary examination shows that no offense was committed in Dane county, and therefore neither the municipal nor circuit coxirt had jurisdiction to try the cause. The information, however, very distinctly charges that the libelous article was composed, printed and pxiblished in Dane county, within .the jurisdiction of these courts. Now,
But it is further insisted that the circuit court never acquired jurisdiction of the cause on the change of venue from the municipal court. The change was demanded on account of the prejudice of the judge of the municipal court, and it is insisted that it should have been sent for trial to another county. The argument in support of this position is this: The act establishing the municipal court (eh. 107, Laws of 1873) provides that the laws of the state relating to a change of venue in criminal eases and examinations shall not apply to the municipal court, and gives that court exclusive jurisdiction of all criminal offenses within the city of Madison. Section 4. This act was amended by chapter 22, Laws of 1874, and chapter 136, Laws of 1875. In the latter act it is among other things provided, that all “ laws conferring powers of jurisdiction on or regulating proceedings in circuit courts or the judges thereof, in criminal proceedings, are hereby extended to and over the municipal court.” This provision, it is claimed, makes only the laws relating to a change of venue in
These remarks, it seems to us, afford a complete answer to the position of counsel that a distinction exists between the McArthur case and the one at bar so as to render the reasoning in the former inapplicable to the latter. For, in determining the power of the municipal court of Madison, under sec. 2, ch. 178, R. S., to change the venue in criminal cases, all the provisions concerning a change of venue in civil actions must be considered; as well those relating to a change from the county courts, as those which refer to a change from the circuit court. The result of this view is, that all the various enactments which authorize a change on account of the prejudice of the judge, apply to the municipal court of Madison. And § 85, ch. 117, Tay. Stats., provides that whenever a change of venue is allowed in any action pending in a county
We therefore think no case is shown for granting the writ of certiorari, even if it would lie to bring up for review the decision of the circuit court denying the motion to dismiss the proceedings. The writ having been returned, the motion to quash the same is proper, and must be granted. The Hauser case, supra.
By the Cou/rt.— The motion to quash the writ is granted, and the cause will be remanded for further proceedings according to law.