Gill v. Milwaukee & Lake Winnebago Railroad

76 Wis. 293 | Wis. | 1890

Lvosr, J.

Two reasons are urged for the reversal of the orders appealed from. These are: (1) The making and filing of findings of fact and conclusions of law are essential to the validity of the order appointing commissioner’s; and (2) the court had no jurisdiction, at a subsequent term, to interfere with the original appointment of the commissioners.

1. This proceeding for the appointment of commissioners is not an action, but a special proceeding, and the order appointing or refusing to appoint commissioners is a final order therein. Wis. Cent. R. Co. v. Cornell University, 49 Wis. 162. The statute which requires that findings of fact and conclusions of law be filed when an issue of fact is tried by the court without a jury applies only to issues in an action. [R. S. sec. 2863.] We are aovare of no law which requires the filing of such findings and conclusions in a mere special proceeding, although its determination may involve disputed questions of fact. In this proceeding a formal answer was interposed, denying the alleged taking of the petitioner’s land and the consequent damages; but this was unnecessary — the statute requiring nothing of the kind. R. S. sec. 1846. The petition made a prima facie case for the appointment of commissioners, and the company was cited to show cause 'why they should not be appointed. This it may do without formal pleadings; probably by affidavits or oral testimony. The railroad company attempted to show cause against the appointment of such commissioners; but the court says, in the order, that it failed. This is equivalent to a finding that the petition is true, which would be sufficient were a finding required. Not having the evidence before us, we cannot say the finding is erroneous. It follows that the order of July 2d. appointing commissioners, and that of August 15th, denying appellant’s motion that findings of fact and conclusions of law be settled and filed, were regular, and should be affirmed.

2. The order of September 7th, in so far as it again appointed the same commissioners who were appointed in the order of July 2d, is inoperative and harmless. It does not vacate the former appointment, and the persons therein named were such commissioners from the date of their original appointment. The only effect it had was to appoint a future day for the first meeting of the commissioners. This the court may do at any time, such meeting not haring been held at the time first appointed. It is a matter of mere procedure, which must necessarily be within the control of the court; at least, until the commissioners have qualified and held their first meeting. There is nothing in the order which injures the appellant, or of which it can justly complain.

By the Court.— The orders appealed from are affirmed.