295 N.W. 681 | Wis. | 1940
Writ of error, issued May 6, 1940, to review an order of the circuit court denying a motion to enjoin the clerk of the circuit court from issuing certificates of commitment and to enjoin the sheriff from imprisoning or interfering with the liberties of plaintiffs in error.
The plaintiffs in error were convicted in the circuit court of Waukesha county July 19, 1938, of the offense of criminal conspiracy to violate the gaming laws. Upon such conviction they were sentenced to terms of imprisonment in the house of correction for Milwaukee county for a period of six months. The judgment was brought to this court and affirmed on November 9, 1938. (State v. Martin,
A writ of error as a reviewing device has been preserved by our state constitution. Sec. 21, art. I. While frequently used, the limitations and scope have at times been seriously debated. The general rule is that the writ lies after final judgment, or after an order in the nature of a final judgment, *574
rendered in a court of law, to correct some supposed mistake which is apparent on the face of the record. Jackson v. State,
"There is no express provision made by statute for reviewing such a decision of the circuit court, but we are inclined to hold that it may be had on a writ of error. The order made in such a proceeding by the court is in the nature of a final judgment, and the policy of our constitution and laws is to allow a review of such an adjudication; and it is most in accord with our rules of practice and the analogies of the law to allow this to be done on writ of error."
Before that decision an order in the nature of a final judgment usually was one ending a proceeding and preventing a final judgment. The uncertainty which arose at that time over the propriety of that ruling resulted in legislative action which is now embodied in sec. 274.05, Stats., expressly authorizing a writ of error to review the action of a lower court in habeas corpus proceedings.
Every order, although dealing with a substantial right, is not an order in the nature of a final judgment. In Jacksonv. State, supra, the ruling on a motion after judgment for a new trial was expressly held not to be an order in the nature of a final judgment, and that consequently a writ of error did not lie. An order in the nature of a final judgment to be reviewed by a writ of error would include orders which dismiss the action before judgment is entered. It was held in State v.Meen,
In Lovesee v. State,
There is no statutory authority for the trial court's order as made in this instance. Inasmuch as the writ of habeas corpus will supply the defendants with an adequate remedy to restore any rights that may have been taken from them, we are impelled to grant the motion of the attorney general and dismiss the writ.
By the Court. — Writ dismissed.