In re Haney, 14 Wis. 417

In re Haney

14 Wis. 417 | Wis. | 1861

By the Court,

Paine, J.

This was an application for a common law writ of certiorari, to review the proceedings of the circuit court of Dane county, in chancery, upon an application by the guardian of the petitioner for leave to sell his real estate while he was a minor. When the application was made, it certainly appeared to the court that such a use of a common law certiorari would be novel in its character, but the writ was issued without argument, subject to the opinion of the court upon the question whether it would lie in such a case. We are now all of the opinion that it will not.

*421No case was cited where a proceeding in chancery was ever reviewed by this writ. But counsel relied upon general language found in many authorities treating of this writ, that it lies to review the proceedings of inferior tribunals not proceeding according to the common law. He then showed that the power to authorize the sale of the real estate of infants was not a part of the inherent jurisdiction of a court of chancery, but could only be conferred by statute. And he then inferred that because the court of chancery was inferior to the supreme court, and in selling the real estate of infants was not proceeding according to the course of the common law, therefore the case came exactly within the authorities allowing this writ. The same argument was made in Peters vs. Peters, 8 Cush., 529, where it was sought to review the proceedings of a probate court by a certiorari. And it was answered very elaborately, and to our minds very satisfactorily, by Chief Justice Shaw, and it is only necessary to refer to his reasoning, and to say that we think it more clearly applicable to an attempt to review a proceeding in chancery, than it was to an attempt to review a proceeding in probate.

The following are also direct authorities against such a use of the writ: Galloway vs. Stophlet, 1 Ohio St., 484; Gilliland vs. Adm’rs of Sellers, 2 id., 226.

There is also much room for doubt whether the circuit courts of this state are courts of inferior, limited jurisdiction, within the meaning of the rule concerning the common law certiorari. It is true they are inferior in the sense of not being the supreme tribunal, but they are still superior courts of general jurisdiction, to review whose proceedings, wherever they are capable of being reviewed at all, either an appeal or writ of error lies. The certiorari has, however, usually been held applicable to the really inferior tribunals of limited and special jurisdiction. See Morewood vs. Hollister, 2 Seld., 312, and cases cited. Nor do we think the old rule adopted by this court, in respect to the removal of cases from the circuit which had been brought by appeal from the probate courts, can be held to impair this view, or to show that a common law certiorari is in general a proper mode of re-*422y*ew*n§ action circi:iit courts. The practice pre-had been to bring such cases here by writ of error. Bronson vs. Burnett, 1 Chand., 9. And it is obvious that the certiorari spoken of in the rule referred to, adopted in December, 1853, was really not in the nature of a common law certiorari, but was more in the nature of an appeal, and that the design of it was to bring up the case for a retrial on the evidence and merits of the case. Indeed the rule itself, in the last part of it, spoke of it as an appeal. It was adopted merely to prescribe a method of bringing the case to this court for the exercise of its acknowledged appellate jurisdiction. We do not say there are no instances in which the common law certiorari will run to the circuit courts, but if there are, we are clearly of the opinion that it is not the remedy to review proceedings in chancery. Nor do we think it makes any difference whether the act sought to be reviewed, was done in the exercise of its original, inherent jurisdiction, or of new powers conferred on it by statute. It was at first held that none but the chancellor could issue this writ, but the power was afterward extended to the common law courts. 1 Tidd’s Pr., 397. But we have found no instance where those courts ever attempted to review the action of the chancellor by means of it

The counsel contended that this writ would lie in all cases where a writ of error or appeal would not; which he said was true here, and that if this writ is denied it presents a case where the infant’s rights are prejudiced without any remedy for the wrong. We are not prepared to say whether an appeal could have been taken from the action of the circuit court or not. The proceedings were had under sec. 51 and the subsequent sections of chap. 84, R. S. 1849. The right of appeal is given by sec. 110, which confines it to “ any person, being either complainant or defendant.” But if there could be no appeal in an application to sell the lands of an infant, it must be because there were no antagonistic parties, because the proceeding was ex parte, considered as made in behalf of the infant by his guardian, authorized in law to represent him and bind him by his acts. If such is the true nature of the proceeding, there would seem to be *423an incongruity in allowing an infant to come into court by bis guardian and ask to have certain proceedings taken bis bebalf, and then come into an appellate court, either by bimself after be came of age, or by some other guardian or next friend before be came of age, and ask to have those proceedings reversed for error. And if these considerations furnished a good ground why no appeal should be allowed in such a case, the same reasons would be good against allowing the infant any other mode of review. If he was prejudiced by the proceedings being injudiciously taken, it would have to be considered as one of the many instances where injury may arise from the indiscreet action of those who are authorized to represent others, but by whose acts the persons represented are bound. The case of Peters vs. Peters, before referred to, would also sustain this conclusion. It held that where a guardian ad litem was appointed for an infant, and assented to certain proceedings, the infant would be bound by such assent. And the guardian .who was required to be appointed by sec. 51 of our statute, as well as the general guardian, certainly acted for the infant in this matter, as fully as the guardian ad litem' in that case. In addition to this, by sec. 59 the infant was considered as the ward of the court from the time of the application. And if both guardians, and the court itself, could not so represent the infant in proceedings taken entirely in his own behalf, as to bind him, it is difficult to see how an infant can ever be so represented as to be bound.

The writ is dismissed, with costs.