Deuster v. Zillmer

119 Wis. 402 | Wis. | 1903

WiNsnow, J.

The first question to be considered is whether the order appealed from is in fact appealable. If appealable, it can only be under the first or second subdivision of sec. 3069, Stats. 1898, which provide for appeals from the following orders:

“1. An order affecting a substantial right made in any action when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

“2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.”

If the order in question be an order made in the replevin action itself, then clearly it is not appealable. While it doubtless affected a substantial right, it was not made upon summary application after judgment; nor did it in effect determine the action, nor prevent judgment therein. All this seems self-evident. The judgment appealed from exceeded $15, exclusive of costs; hence the case was triable as if originally brought in the appellate óourt, and the mere fact that an order had been made purporting to vacate the judgment appealed from would not prevent the entry of a judgment in the appellate court. Stats. 1898, sec. 3768. Hence, in order to be appealable at all, it must be because it is a final order made in a special proceeding. While the question is not without some difficulty, we have concluded that it must be considered as an order made in a special proceeding. While all the papers on which the motion was founded, as well as the order itself, are properly entitled in the action, this fact is not at all conclusive. There may doubtless be many proceedings springing out of a pending action — such, for instance, as an application by one not a party to be allowed to interplead— which may very properly be entitled in the action, but are none the less true special proceedings. Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735. Our statute, after defining an action, declares that “every other remedy is a special proceeding.” Stats. 1898, secs. 2595, 2596. This proceeding was certainly not an action of itself. It did not relate properly or necessarily to the disposal of the case on the appeal, because appellate jurisdiction was simply to dismiss or to try the appeal as an action originally brought in that court; hence it was not properly a proceeding in the action, but it was a proceeding of some kind, which sought and obtained a remedy. We see no course open, therefore, but to regard it as a special proceeding, ill-advised and erroneous doubtless, but nevertheless a special proceeding, within the meaning of the statute; and we are the more inclined to adopt this view from the fact that the parties and the trial court seem to have so considered it without objection. Viewing it as such, there can be no doubt of the appealability of the order, because it was final in the proceeding and affected a very substantial right. The justice’s judgment was not affected by the appeal itself. It is true that the giving of an undertaking under sec. 3756, Stats. 1898, as was done in this case, stays the execution of the judgment; but, even when the undertaking is given, the judgment remains of force, and a transcript may be docketed pending the appeal. Steckmesser v. Graham, 10 Wis. 37; sec. 3669, Stats. 1898. So the making of an order vacating the judgment affected a substantial right.

We have not been referred to any authority which holds that a justice’s judgment may be vacated upon mere motion made in an appellate court, even though that court has superintending control or supervisory jurisdiction, and we should be surprised to find any such authority in the absence of a statute to that effect. A court has power to amend or control its own records in a proper case by motion, but this principle has not, to our knowledge, been carried so far as to hold that it may amend, vacate, or expunge the records of another court in that manner, even though, such other court be an inferior court over which it has superintending control. This power of superintending control is to be exercised by the established writs of the common law, at least until the legislature shall provide additional or other means. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. That the circuit court has no power to set aside the judgment of a justice on mere motion was strongly intimated, if not actually decided, in the case of Mabbett v. Vick, 53 Wis. 158, 10 N. W. 84.

But if it were to be conceded that the power existed, or that the appellant, by appearing and failing to object to the proceeding, is now estopped from making any objection to the procedure, still the order was erroneous, because the facts before the court showed that the judgment was rendered by a de facto officer. It appears that Mclver was duly elected and qualified as a justice in April, 1900. By the terms of the constitution his term extended for two years and until his ■successor in office should be elected and qualified. Const, art. VII, sec. 15. There were but two justices of the peace in the town of Lake prior to the election in April, 1902, Mclver being one of them, and one Howard the other. The town was entitled to four justices, and four persons were elected at the last named election, one being Howard. Of the three newly elected justices, one failed to qualify; being the justice whose residence was nearest that of Mclver. In this situation, Mc-lver claimed that no successor had been elected to fill his place, and the question was certainly a debatable one. It did not appear that any of the persons elected had been designated on the ballot as the successor of Mclver. Under these circumstances, Mclver claimed to hold over under his previous •election, and kept the books and records, and continued to do business as a justice, and, while that situation continued unchanged, rendered the judgment appealed from. It must be held that these facts fulfilled every requirement necessary to constitute a de fació officer, so far as the public and those doing business before him -were concerned. There was an office de jure. Mclver was in possession under color of an election to that office. His right to hold it cannot be inquired into in a mere collateral proceeding. In re Boyle, 9 Wis. 264; State ex rel. Knowlton v. Williams, 5 Wis. 308. The cases of State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, and La Pointe v. O’Malley, 46 Wis. 35, 50 N. W. 521, are entirely inapplicable, because in those cases the question was simply as to the rights of one holding over in an office-in a contest between himself and a person who had been declared duly elected to that identical office as his successor. Such cases involve very different considerations, and are controlled by different principles.

By the Oourt. — Order reversed, and cause remanded for further proceedings according to law.