Gould v. Dodge, 30 Wis. 621

Gould v. Dodge

30 Wis. 621 | Wis. | 1872

DixoN, C. J.

The language of the first clause of the sec*623tion, under wbicb the order was made, requiring the defendant to appear before the referee to be examined and make discovery on oatb concerning his property, literally taken, justifies in some measure the conclusion of counsel for the defendant' that the court could not make the order. Tbe words of the statute are that the judgment creditor “ is entitled to an order from the judge of the court, or a county judge, or court commissioner of the county, to wbicb the execution was issued.” R. S., c. 184, § 88. 2 Tay. Sts., 1564, § 100. Counsel applies the maxim, expressio unius est exclusio alterius, and construes the statute as if the legislature, in declaring that the judgment creditor is entitled to the order from the officers named, had furthermore declared that be shall not be entitled to the same or a like order from the court in wbicb the judgment was rendered, and from wbicb the execution issued and to wbicb it was returned. Mr. Broom (Legal Maxims 506,) informs us that great caution is always requisite-in the application of the maxim relied upon. It seems to us there is room for the exer cise of such caution here, and that a proper exercise of it must deny the application of the maxim. Tbe legislature, in conferring the power upon the officers named, undoubtedly understood that those officers could not exercise it unless specially conferred, and bence-the express authority given. But with respect to the court the question was quite different. Tbe legislature must have known, previous to the order being enacted, that the circuit court possessed inherent power, given by the constitution, to make and enforce the order whenever the proper case arose. Under such circumstances it is more than questionable, therefore, whether the legislature could, by any form of enactment or by express words, deprive the circuit courts of this state of their jurisdiction in the premises. But upon the language of the statute here used, the presumption must be that the legislature omitted to name the court, not because of an intention to deprive it of jurisdiction, if the legislature had possessed such power, but because it was well known that the *624court would have power to make the order without "being expressly named; and this presumption is not, under the. circumstances, to be encountered or overcome by the fact that the legislature have used the word “court” in other parts of the section in connection with the same officers named, or in authorizing other kindred orders to be made.

Another section of the same statute expressly provides, that in supplementary proceedings, “ the party or witness may be required to attend before the judge, or before a referee appointed by the court or judge.” R. S. c. 134, § 93, 2 Tay. Sts., 1566, § 105.

The appointment of the referee and requirement of the judgment debtor to appear before him in this case, were, therefore, proper. We see no error in the proceedings or order appealed from, and the same must consequently be affirmed.

By the Court. — Order affirmed.