92 Wis. 422 | Wis. | 1896
Lead Opinion
This case was before this court on a writ of error to review the judgment of the circuit court, and was decided October^,1S95, the judgment being affirmed. After such affirmance, a motion for a new trial was seasonably made, based on newly-discovered evidence, under sec. 4719, R. S., which provides that “ the circuit court may, at the term in'which the trial of any indictment or information gba.11 be had, or within one year thereafter, and in either case before or after judgment, on the petition or motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court may direct.” The motion for a new trial was denied, and the order of the trial
By the organic law of the territory at the time of the adoption of the state constitution, a writ of error was allowed only from final judgments or orders in the nature of final judgments (Hill v. Bloomer, 1 Pin. 283); and this right was preserved and secured by art. I, sec. 21, of the constitution, which provides as follows, “Writs of error shall never be prohibited by law.” As said by Mr. Justice Lyon in Buttrick v. Roy, 72 Wis. 164, in effect, this constitutional provision renders the writ inviolate, as it existed when the constitution was adopted, and at that time its scope and function were to correct some supposed mistake in the proceedings or judgment of the court. Hence, it lies only after judgment in an action at law in a court of record, or after an order in the nature of a final judgment, to correct some supposed mistake in the proceedings in respect to such judgment or order. Such is the measure of the constitutional right to the writ, and sec. 3043 is merely declaratory of the constitutional right, neither extending nor attempting to restrict it. Sec. 4724, R. S., provides that writs of error in criminal cases may issue in the manner and within the time allowed in civil actions, and sec. 3043, that writs of error may issue to review final judgments in actions tried by jury; the proceedings and judgment to be in accordance with the course of the common law and the rules and practice of the supreme court. This statutory provision, in connection with art. 1, sec. 21, of the constitution, has been repeatedly considered by this court in cases, from first to last, covering nearly half a century, and the conclusion promulgated soon after the adoption of the constitution has been since reiterated, over and over again, that a writ of error lies only in case of a final judgment or an order in the nature of a final judgment given in a court of record proceeding according
However much the ends of justice may appear to demand a review of the decision of the trial court l’efusing to exercise the discretionary power granted by sec. 4719, R. S., in favor of the plaintiff in error, the settled law on the subject forbids this court from doing so, though the peculiar circumstances disclosed by the record, and the able presentation of the matter both orally and in the printed briefs of counsel, have led to such careful consideration of the jurisdiction of this court in the premises as the apparent exigencies of the case required, in view of the prior adjudications in respect to the general principles involved. We must hold that an order denying a motion for a new trial, under sec. 4719, is not a final judgment or an order in the nature of a final judgment. Hence, the writ of error was improvidently issued and must be dismissed.
By the Court.— Ordered accordingly.
Concurrence Opinion
I cannot concur in the determination of the court, resting, as it seems to me it does, upon what I regard as a mistaken view of its constitutional power and duty as an appellate tribunal.
The constitution (sec. 3, art. YII) provides that “ the supreme court, except in cases otherwise provided by this constitution, shall have appellate jurisdiction;” and with this grant of appellate jurisdiction and as incident thereto, and
It is provided by statute (R. S. sec. 2405) that the appellate jurisdiction of the supreme court “shall extend to all matters of appeal, error, or complaint from the decisions or judgments of any of the circuit courts, county courts or other courts of record, and shall extend to all questions of law which may arise in said courts, upon motion for new trial, in arrest of judgment, or in cases reserved by said courts.” And, by sec. 2406, it is provided that “in addition to the writs mentioned in sec. 3, art. VII, of the constitution, the supreme court shall have power to issue writs of prohibition, supersedeas, procedendo, and all other writs and
This view of the appellate jurisdiction of the court is sustained by the case of Brunson v. Burnett, 2 Pin. 79, which was a motion to dismiss a writ of error to review the judgment of the district court in respect to the probate of a will, the statute not providing in terms that either an appeal or writ of error might be had. The court denied the motion, Stow, O. J., stating that it was “ of no moment which proceeding— a writ of error or an appeal —was pursued; . . . that, in the absence of authority or precedent, the court felt at liberty to adopt such a course as was deemed most expedient; and that, on the whole, a writ of error was preferable to an appeal.” After the organization of this court, in 1853, a writ of error was sued out in a similar case concerning the probate of the will of Edward Eisher, in the case of Fisher v. Berkley (unreported). No procedure having been prescribed by statute in which to obtain a review in cases determined in the circuit courts in relation to probate matters, the court dismissed the writ, but framed rules and a writ of certiorari for the review of such cases, whereupon such a writ was issued, and the case was heard thereon and decided. 2 Pin. 80, 81; 3 Pin. 492, 493; In re Fisher, 4 Wis. 254. These cases serve to show that the court is not dependent upon legislation for means to exercise its
It certainly cannot be a valid objection to the present writ that there had been a former writ upon which the final judgment given against the defendant was reviewed before the subsequent order was made denying the motion for a new trial made under the statute after such judgment, and which is sought to be reviewed by the present writ. I think that the order denying this motion was so far in the nature of a final judgment that it is the subject of a writ of error. It was a final determination of the new case made by the plaintiff in error, and a denial of an important right secured by the statute, so that it comes fairly within the rule. A writ of error is a remedial process, and ought to be used so as to advance the remedy, and ought not to be administered in the spirit of rigid and indexible technicality. The plaintiff in error was entitled to the judgment of the appellate court on this motion. Only such motions and rulings as were made before the judgment of conviction could be reviewed on the first writ. The plaintiff in error had a right to make a motion for new trial after judgment, and the statute (see. 2405) declares that the appellate jurisdiction of the court “ shall extend to all questions of law which may arise upon a motion for a neto trial,” irrespect
I think,' therefore, that the writ of error should have been sustained, and that the matter presented on the motion, drawn from unwilling witnesses, was such as to require a reversal of the order and a new trial. But, if the right to review the order on this writ is open to such serious doubt that it ought not to be maintained, then it is clearly the duty of the court, with the reoord before it, and the plaintiff in error seeking the exercise of its undoubted appellate jurisdiction, to adopt suitable rules and frame a Avrit of certiorari for all such cases, and to issue the writ and proceed to a reidew of the order, as the court did in In re Fisher, referred to. ¡