City of Ashland v. Whitcomb

114 Wis. 99 | Wis. | 1902

WiNsnow, J.

The singular fact which strikes the mind upon examination of the record is that there is no proof from beginning to end that the United States corrrt has assumed to take jurisdiction of tire action. When this fact was called to the attention of respondent’s counsel upon the argument, he stated that the present case and its companion, Ashland v. Wis. Cent. R. Co., post, p. 104, were taken up together in the trial court, and that the fact of the assumption of jurisdiction by the United States court, as stated in the answer in that action, was admitted as existing, and treated as a matter of fact to be considered by the court in both cases. This statement was not, however, admitted by the appellant’s counsel either in their brief or in their argument before us, and, in the absence of any admission, it is plain that we can consider nothing but what appears on the face of the record.

The record is certified to be all before us. The order appealed from recites that it is based upon that record, but there is not a paper of any kind in it which shows, or tends to show, that the United States court has assumed jurisdiction of the action. It is true that the trial judge states in the order that he strikes the cause from the calendar for the reason that the United States court has assumed jurisdiction. Had this been recited as a fact proven on the hearing of the motion, it would doubtless be conclusive of the fact, and we should be bound to assume that it was proven by oral admission or stipulation; but, on the contrary, the order appealed from specifically recites that it is based upon the files and records; and thus affirmatively excludes the possibility of any other fact having been before the court than the facts appearing in the files and records. The mere recitation at the close of the order of the reason which influenced the mind of the court cannot be considered as proof of the fact in the face of the direct statement that the order was based upon written records alone which contain no proof of such fact.

We are therefore compelled to conclude that there is nothing in the case to show that the United States court has ever assumed jurisdiction of the case. So the situation appearing on the record is that the motion was made and denied in the state court, and no further steps were taken until the case was moved for trial in tlie latter court. On this state of facts, there was nothing to prevent the trial from proceeding in the state court.

But it is objected by the respondent that the order striking a case from the calendar is not an appealable order, because it does not in effect determine the action, or prevent a judgment from which an appeal might be taken. Cértainly, an order striking a cause from the calendar because of insufficient notice or other irregularity not affecting the question of the pendency of the action is not appealable, because it affects procedure alone and merely postpones the trial to a future term; but when such an order is based upon.the ground that no such action is pending in the court it is manifest that a different question is presented. Such an order is, in effect, a ruling that the court has no jurisdiction, and hence that it can never be'brought to trial or judgment in that court. Thus, in Cooper v. Waterloo, 88 Wis. 433, 60 N. W. 714, which was an action against a village for personal injuries suffered by reason of a defective sidewalk, an order was made striking the cause from the calendar because a third person, alleged to be primarily liable for the defect, had not been joined as a defendant. Upon appeal this order was held to be appealable, because it affected a substantial right, and in effect determined the action, and prevented a judgment from which an appeal might have been taken. That case cannot be distinguished in principle from the present case. In the present case it appears from the record that the action is still pending in the state court, that' removal to the United States court has been denied, and there is nothing to show that the United States court has assumed jurisdiction notwithstanding the denial. Hence, so far as the record before us is concerned, the state court conclusively appears to be the proper court in which the case is to be tried; but that court has refused to' try it, and has stricken it from the calendar, upon a ground which will prevent its trial for all time in tbe future, and benee render any.judgment in the action impossible.

By the Court. — Order reversed, and action remanded for further proceedings according to law.