Salter v. Cook, 131 Wis. 20

Salter v. Cook

131 Wis. 20 | Wis. | 1907

Cassoday, C. J.

Since the territory proposed to be incorporated into the village of Unity was partly in the county of Marathon and partly in the county of Clark, the statute authorized the circuit court of either of those counties to take jurisdiction and, upon proper proceedings, to order such incorporation. Sec. 857, Stats. (1898). As indicated in the foregoing statement, such proceedings were instituted in the circuit court for Marathon county and continued in that court until after the appointment of inspectors of election May 20, 1905, and until after the decision of this court quashing the writ of certiorari, April 17, 1906. In re Salter, 127 Wis. 677, 106 N. W. 684.

The first question here presented is AAffiether it was competent thereafter for the circuit court for Clark' county, in a separate action commenced May 25, 1906, to declare the order of the circuit court for Marathon county so made May 20, 1905, and all subsequent proceedings thereunder, utterly void *23and of no binding effect, and to perpetually enjoin the defendants from proceeding thereunder or attempting to hold such election. By a long line of decisions, commencing in 15th Wisconsin and ending only a few weeks ago, it has been repeatedly held, in effect, that a judgment or order of one circuit court will not he set aside nor restrained by another circuit court of co-ordinate jurisdiction upon a suit subsequently commenced therein. Parish v. Marvin, 15 Wis. 247; Platto v. Deuster, 22 Wis. 482; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388; Coon v. Seymour, 71 Wis. 340, 37 N. W. 243; Cardinal v. Eau Claire L. Co. 75 Wis. 404, 44 N. W. 761; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891; Jackson M. Co. v. Scott, 130 Wis. 267, 110 N. W. 184, 186; Pleshek v. McDonell, 130 Wis. 445, 110 N. W. 269. The remedy, if any, is to he sought in the original action. In the case of proceedings for the incorporation of villages the statute expressly provides that “any question of the validity of such incorporation and proceedings therefor may he tested by cer-tiorari or by any other proper action or proceedings brought directly for the purpose of vacating or setting aside the same” within the time prescribed. Ch. 39, Laws of 1901. Of course, such remedy is to be sought in the court where the proceedings were instituted or upon appeal. It is unnecessary to consider any other question in the case.

By the Court. — The order of the circuit court is reversed,, and the cause is remanded with direction to dismiss the complaint.