Farmers Fire Insurance v. Conrad

102 Wis. 387 | Wis. | 1899

Bardeen, J.

Sec. 21, art. I, of the constitution provides that “ writs of error shall never be prohibited by law.” In Buttrick v. Roy, 72 Wis. 164; it was said that this constitutional provision renders the writ inviolate, and preserves it-to the citizen as it existed when the constitution was adopted. Jackson v. State, 92 Wis. 422, is to the same effect. There is, however, no constitutional provision or statutory enactment enlarging its scope or increasing its functions. It lay then, as it only lies now, after judgment in any action at law in a court of record, to correct some supposed mistake in the proceedings or judgment of the court. It was never granted to review a judgment in an equitable action. Delaplaine v. Madison, 7 Wis. 407; Howes v. Buckingham, 13 Wis. 442; Shannon v. State, 18 Wis. 604; Costello v. Buch, 25 Wis. 477; Crocker v. State, 60 Wis. 553. Sec. 3043, Stats. 1898, provides that writs of error may issue to review final judgments in actions triable by jury, except actions for divorce. Thus, it will be seen, both by statute and decision, that a writ of error will only lie after judgment in an action at law, and cannot be used to review judgments in equitable actions. Therefore, if it be determined that this is an equitable action, the writ of error must be dismissed. This question has been raised in this court in several cases, and decided, so that it becomes unnecessary to discuss it at this time. In La Crosse Nat. Bank v. Wilson, 74 Wis. 391, the conclusion arrived at is that a proceeding by garnishment to reach non-leviable property or assets formerly reached by a creditors’ bill is essentially equitable, and the issues therein are triable by the court. Delaney v. Hartwig, 91 Wis. 412, holds the same doctrine. And see T. T. Haydock C. Co. v. Pier, 78 Wis. 579. There can be no doubt but that Conrad was seeking to secure what is termed “ nonleviable assets ” in the hands of the plaintiff in error. This marked the proceeding as distinctly equitable in its nature, and hence the judgment entered therein cannot be reviewed in this court by writ of error. While no formal motion to dismiss the writ has been made, it being apparent that the writ was improvidently issued, tbe court feels bound to decline to bear the case on its merits, and to dismiss the writ.

By the Gourt.— So ordered.