151 Wis. 274 | Wis. | 1912
Tbe motions were granted on November 23, 1912, and the following opinion was filed December 10, 1912:
These cases having come here by appeal from judgments in favor of tbe plaintiffs on fire insurance, policies, motions are now made by tbe appellants to remit the-records in both cases to tbe trial court for a limited time, in order that tbe appellants may make motions to set aside the-verdicts and judgments and to grant new trials in that court based on affidavits setting forth very fully tbe discovery of' evidence since tbe appeals were taken, showing that tbe insured buildings were destroyed by fire deliberately set by the-insured as tbe result of a conspiracy to defraud tbe defendant insurance companies. Tbe appellants resort to this method of procuring a return of tbe records to tbe trial court instead! of dismissing their own appeals, because tbe 'judgments-against them were rendered more than sixty days since and they fear that if they dismiss their appeals they will incur tbe heavy forfeitures prescribed by sec. 1974, Stats. (Supp. 1906), against any insurance company which continues to do business without paying a judgment against it, or prosecuting ■an appeal therefrom within sixty days after tbe rendition of tbe judgment.
Tbe defendants’ counsel interposed no objection to tbe motion ; in fact be very properly consented that tbe order might be made at once. Eut as it seemed that there might be a question of jurisdiction involved we took tim¿ before making tbe order to consider that, subject. v
These matters, however, may well be considered as merely incidental or subsidiary proceedings and perhaps of a different nature from the order which is desired in the present case, namely, an order by which the judgment appealed from will be set aside and the subject matter of the appeal practically taken from the hands of this court after it has acquired full jurisdiction of the case, and that, too, by an inferior court.
While none of tbe cases cited attempt to pass authoritatively upon tbe question before us, tbe implication is quite clear tbat tbis court bas acted generally upon tbe assumption tbat after jurisdiction bad been fully obtained bere by appeal from a final judgment tbe trial court could not take any action affecting in any way tbat judgment .or tbe exclusive power of tbis court to deal therewith.
We see no necessity for questioning tbat proposition in tbis case. Here tbe trial court bas not attempted to take any action in tbe case, but application is made to tbis court for an order transmitting tbe records to tbe trial court and directing tbat court to bear and decide a motion for new trial; no other court having power to pass upon such a motion and a sufficient showing of diligence having been made to excuse tbe delay.
If tbis court bas power to make such an order it seems that it must be by virtue of tbe constitutional grant of “a general superintending control over all inferior courts.” Sec. 3, art. YU, Const. Tbis jurisdiction has been called “high and transcendent,” and said to be as “broad as the exigency of the case demands.” State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. It is ordinarily used to compel inferior courts to take action within their powers or to
If it be said that this is an attempt by this court to confer jurisdiction upon the circuit court when it has none by law, •the reply is that, notwithstanding the positive language used in the cases cited, it has been recognized for many years that there is a qualified jurisdiction after appeal still remaining in the circuit court which may be called into activity by permission of this court. It may be said further that nowhere do the appeal statutes say expressly or by fair implication that the trial court entirely loses jurisdiction of an action after appeal. The implications are rather the other way. An appeal is fully perfected by the giving of the notice and bond for costs, but further proceedings are not stayed in the trial court unless an undertaking to stay them be given. Even when this last named undertaking is given the effect is to stay action on the judgment or order appealed from, and the court is at liberty to proceed “upon any other matter included in the action not affected by” such judgment or order. Sec. 3066, Stats. (1898). So it is clear that jurisdiction in a qualified sense at least remains in the trial court subject to the stay of proceedings imposed in aid of the appeal.
While the question is not free from difficulty, we reach the conclusion that in a serious exigency like the present, where justice seems to require it and no other remedy is adequate, this court may properly, by virtue of its power of superin
By the Court. — The motions are granted.
The records having been remitted to the circuit court, that court granted the motion for a new trial in each case; and thereafter, on December 10, 1912, the appeal in each case was dismissed by stipulation, with costs against the respondent.