50 Wis. 228 | Wis. | 1880
These are actions in equity to restrain the collection of a tax • for reasons affecting the groundwork of the tax, and coming within section 12105, R. S. The court below proceeded to judgment for the respondents, without awaiting a reassessment; and it is very properly conceded, by their learned counsel, that the cases are governed by Plumer v. Supervisors, 46 Wis., 163; Flanders v. Merrimack, 48 Wis., 567; Kingsley v. Supervisors, 49 Wis., 649; and Single v. Stettin, id., 645, and must be reversed.
This is perhaps a proper place to remark that the opinion of the court in Kingsley v. Supervisors falls into the inadvertent error of declaring the judgment in that case void, as being coram non judice. The statute directs the court to suspend
Some objection is made to the printing of the testimony in the case. ' This proves to be unnecessary in the view taken of the appeal. But the court cannot say that, in the circumstances, it is such a flagrant abuse as would bring it within the rule of Southmayd v. Ins. Co., 47 Wis., 517.
These judgments must be reversed, and the causes remanded to the circuit court for further proceedings in accordance with this opinion.
I was present at the first consultation, and concurred and still concur in the decision of these cases reversing the judgments; but I was not notified of another consultation, in which it was agreed that the opinion should state, as the ground of such reversal, that the rendition of the judgments was a mere irregularity, and that that part of the opinion of .Mr. Justice Lyon, in several, similar cases decided at the last term of this court, in which it was held that the circuit court “had no jurisdiction to render final judgment” in such cases, and that such “judgments were void,” should he overruled, and 1 respectfully dissent from the opinion in this respect. In Single v. The Town of Stettin, also decided at the last term, it was held that the court was absolutely reguired to stay proceedings in such a case, whether it was ashed for or not, and that the duty of staying the proceedings is imposed by the statute upon the court; and that it must he ordered by the eoxt/rt with or without motion, and that the language of the statute is imperative.
It is quite obvious that the circuit court, in such a case, is
But in the above case of Single v. Stettin it is held that such defect could not be waived, and to order a stay of proceedings in such a case is not dependent upon the action or omission of the defendant, but is an imperative duty imposed upon the court. But if this opinion, that the entry of the judgment in this case was a mere irregularity, is to stand as the law declared by the court in all cases, past as well as present, then this decision is vastly important, and may, and I think does, overrule many decisions of this court not named in the opinion, and does, most unquestionably, overrule the decision and opinion of the court In re Ida Louisa Pierce, 44 Wis., 411, and adopt and establish the dissenting opinion in that case as the correct expression of the law upon the
By the Court. — Judgments reversed, and causes remanded to the circuit court for further proceedings in accordance with the opinion of this court.