Krueger v. Cone
106 Wis. 522
Wis.
1900
Check Treatment

The following opinion was filed February 27, 1900:

Dodge, J.

It is quite clear that the order requiring the garnishee to pay into court the amount of the conditional indebtedness from him to the defendant, which was subject to claims for mechanics’ liens, was improper. Sec. 3727, Stats. 189 S, being translated, provides that no judgment shall be rendered against a garnishee, or any money or property be required to be delivered by him to the justice, by reason of any money owing from him to the defendant, unless it shall have become due absolutely and without depending on any future contingency, and .that claims for mechanics’ liens shall prevent any indebtedness from the owner being due absolutely until such liens shall have been disposed of or shall have expired. That situation existed here, and while it existed it ivas not proper for the justice either to require the money to be paid over or to render judgment against the garnishee.

That, however, is not the question here presented. We *524may only consider on certiorari whether the act complained of was within the jurisdiction of the court. Within the field of the jurisdiction of a court or a judicial magistrate the decision may be right or may be wrong and none the less not be open to review on certiorari, Carter v. Dow, 16 Wis. 298; Varrell v. Church, 36 Wis. 318; Barnes v. Schmitz, 44 Wis. 482; Paulsen v. Ingersoll, 62 Wis. 312. A justice of the peace has jurisdiction to decide, which involves jurisdiction .to err,— a power, by the way, which is not'infrequently exercised. In this procedure the justice of the peace had jurisdiction of the parties and of the subject matter of the garnishment proceeding. Within that garnishment proceeding, it was his duty to make one or other of various different judicial decisions, orders, and judgments, according as the facts might appear, either by the admissions of the garnishee or by the evidence tendered. It was, of course, the justice’s duty to apply the law, wrhether statute or common law, to the situation thus presented to him, and he does not trespass beyond his jurisdiction merely because he either misconstrues admissions or testimony or errs in the application of the law thereto. The jurisdiction of the justice over the subject matter extends from the constructive seizure of the property by the service of the garnishee summons to the ultimate determination how it shall be disposed of, — whether the garnishee shall be discharged as not liable; whether he shall be held for one amount or another; whether he shall be compelled by contempt procedure to pay the money into court; or whether judgment, enforceable by execution against him, shall be entered. Throughout this procedure many opportunities exist for the justice to commit error and work injustice, but so long as he is within this field his acts are the acts of a court and can be reviewed only by appeal from the final judgment. The act in question was so within that field. It was either a misconstruction of the garnishee’s answer, or a misapplication of the statute to the facts as *525be understood them. Either was a judicial decision in the course of the garnishment proceedings, and if wrong was simply an error within a field over which be had judicial power. This being so, it cannot be corrected upon certio-rari. The court should have quashed the writ, because, whether the order complained of was right or wrong, it was not reviewable upon that process. State ex rel. Gray v. Common Council of Oconomowoc, 104 Wis. 622.

By the Court.— Judgment reversed, and cause remanded with directions to quash the writ of certiorari.

A motion for a rehearing was denied April 27, 1900.