Schend v. St. George's German Aid Society

49 Wis. 237 | Wis. | 1880

Ltos, J.

By a rule adopted in 1865, cases of mandamus can be commenced in this court only by the issue and service of an alternative writ, to be granted by the court. 21 Wis., Appendix B. Notwithstanding the abrogation by rule 26, adopted in 1876, of all formal rules of practice in this court theretofore adopted, the practice established by the rule of 1865 will doubtless be adhered to. Several cases in this court sanction the practice of commencing a mandamus case in the circuit court (and in this court, also, before the adoption of the rule of 1865) by service of an order to show ’ cause why the writ should not issue.. This practice has not been abrogated in the circuit court.

In Attorney General v. Lum, 2 Wis., 508, it was said that the rule to show cause serves the purpose and performs the functions of an alternative writ. This observation cannot be accepted as a general rule, applicable to all cases, but only to those like Attorney General v. Lum, in which no issue of fact was made upon the rule to show cause. In that case, only the validity of a certain order of the circuit court, which was purely a question of law, seems to have been in controversy.

If the cause shown against the issuing of the writ presents an issue of fact on a material averment made in support of the order, we think the court should not try such, issue of fact on affidavits, but should award an alternative mandamus, to the end that, after return thereto, the issue may be duly and regularly tried in the manner prescribed by statute and the rules of court. R. S., 876, sec. 3452; Circuit Court Rule 31. If the respondent is heard in opposition to the application, and there is no dispute about the facts, the application being well founded in law, a peremptory mandamus may be granted in the first instance. The practice above indicated prevails in New York under similar statutes. 5 Wait’s Practice (6th ed.), 575, and cases cited. We find nothing in our statutes or in the decisions of this court which interferes with the adoption of the same practice here. Should an alternative writ be awarded, the court may let the affidavits on which the rule to show cause was made, stand as the petition or relation therefor, or may direct that a formal petition or relation be filed.

There may be special cases in which a rule to show cause is preferable to an alternative writ; but it is believed that in a great majority of cases the better practice is to apply for an alternative writ in the first instance. Had this course been pursued in the present case, it would not 'have been here (as it now is) on a mere preliminary question of- practice. In this case the affidavits for and against the -issuing- of a mandamus present two issues of fact: First, whether the parties aggrieved were or were not expelled from the society without cause, and without an opportunity to he heard in their defense; and second, whether the rules of the society gave them an appeal to the central society. We indicate no opinion on the materiality of the last issue. The first is undoubtedly material. When these propositions of fact (particularly the first) had been affirmed by one side and denied by the other, the alternative writ should have been awarded. There was no case for determining the weight and preponderance of testimony, and cumulative proofs were inoperative to affect the result, and therefore immaterial.

It is said that an alternative mandamus should not be awarded, because the relators only asked for a peremptory ma/ndamus. On an order to show cause in such cases the applicant always prays for a perempfory writ, and the court awards it, or awards an alternative writ, or denies the application entirely, according to the law of the case, and the facts as they appear upon the hearing of the order. Nothing is discovered in the record before us showing that the applicants waived their right to an alternative mandamus, and that relief is claimed by them in the argument of their counsel on this appeal.

The question whether these relators may join in an application for a mandamus, although not raised in the argument, has suggested itself to our minds. We have not examined it, and have no opinion upon it; yet perhaps it is worthy of the consideration of counsel. See State ex rel. Carpenter v. Beloit, 20 Wis., 80.

By the Court. — The order of the circuit court is reversed, and the cause will be remanded with directions to that court to award an alternative writ of mandamus.