106 Wis. 226 | Wis. | 1900
1. In this case we are solicited to exercise that superintending power of the supreme court over inferior-courts which was recently discussed and described at length in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, and it is asserted that the conduct of the court below justifies and requires the exercise of either of two phases of that, power: Eirst. That to enforce the jurisdiction of inferior-courts, either by prohibiting acts outside of their jurisdic
The first subject of inquiry, then, is whether the suit of Trentlage against the Milwaukee Elecbric Bailway da Light Oompamy was in court — ’Whether it had any existence as an action — on the 30th day of January, after the plaintiff’s notice of discontinuance had been delivered to the defendants and filed with the clerk. The negative of this proposition is hardly asserted in the briefs, but was substantially contended for upon the oral argument, and such contention was supported by quotation from certain decisions of this court,— notably, Spaulding v. M. & H. R. Co. 12 Wis. 607; Bertschy v. McLeod, 32 Wis. 205; Noble v. Strachan, 32 Wis. 314; Juneau Co. v. Hooker, 67 Wis. 322. Upon careful examination, none of these cases, except, perhaps, Noble v. Strachan, furnishes support for the position so taken, namely, that the act of the plaintiff in formally declaring his election to discontinue did ex proprio vigore terminate the suit and deprive the court of all jurisdiction to take any judicial action with reference thereto. In Spaulding v. M. & H. R. Co. an order of discontinuance had in fact been en
It will thus be seen that in ail these decisions the court recognized the efficacy and the necessity of judicial action to completely accomplish discontinuance. This view is enforced in many other decisions, in some of which are discussed the considerations which render proper or improper the complete dismissal of a suit upon plaintiff’s application, or even on consent of all parties to the record. Morris v. Baker, 5 Wis. 389; Selleck v. Phelps, 11 Wis. 380; Wakeley v. Delaplaine, 15 Wis. 554; Howard v. Osceola, 22 Wis. 453; Hutchinson v. Paige, 67 Wis. 206; Grignon v. Black, 76
From these authorities it is obvious that, when a plaintiff attempts to exercise his so-called absolute right to discontinue an action prosecuted by him, varied and numerous considerations may need to be weighed by the court before reaching its conclusion whether to allow or deny effect to such attempt. The effect of a termination of the suit upon others, either the defendant or third parties, or sometimes the public, is to be considered, and, if any prejudice to such persons is discoverable, whether it is such as to warrant retention of the suit. We need not now discuss, or express approval or otherwise of, the conclusions reached in these cases. It suffices for the present subject to illustrate the frequency with which reasons need to be, and are, weighed by the courts; thus establishing that a judicial function is necessarily exercised whenever a plaintiff seeks to withdraw a suit once commenced. The duty and power to examine, consider, and decide is jurisdiction. Such duty and power were cast upon the superior court when application was made to it for an order discontinuing the present suit, and its determination to deny that application, and to continue the suit for the protection of some one else, was not-an act beyond jurisdiction; nor was it a refusal to exercise its jurisdiction, for the judge duly considered and decided.
In the light of the foregoing, it is obvious that the remark found in the opinion in Noble v. Strachan, 32 Wis. 314, “ I think that the order denying the application for leave so to discontinue is a nullity, and may be disregarded entirely,” is inaccurate. It is contrary to the reason and im
2. But it is urged, though the inferior courts be acting within their jurisdiction and exercising merely the judicial powers with which they are vested, this court should interfere “ to control the course of ordinary litigation in such inferior courts,” “ not only by restraining their excesses, but. by quickening their negligence and obviating their denial of justice.” That such power is vested in this court cannot be denied, nor that from such power results a duty to exercise it fearlessly and unflinchingly in a proper case. On the-other hand, however, it must not be forgotten that the circuit courts of the state, and the superior courts of Milwaukee county, are the courts of original jurisdiction, wherein it is the plan of the constitution that the rights of parties in general shall be litigated and adjudicated, subject to correction of errors by this court when its appellate jurisdiction is invoked. In those courts is vested, ex necessitate, broad discretion. Around the selection of the judges who are to administer them are thrown most careful safeguards, and upon them is reposed a responsibility and confidence of a very high order. There can be no doubt that the framers of the constitution indulged in the most confident presumption that those courts would be presided over by men of high learning, ability, and integrity; and that confidence and presumption has been well verified by the result throughout the state. No more fitting and striking eulogy could be pronounced than the summary of the judicial experience of the state suggested by Mr. Justice WiNslow in State ex rel.
These remarks are indulged in because of the apparent impression that this court has recently found or declared a new field of jurisdiction and activity, in which, promptly, without waiting for final determination of the court below, and without the formalities- of procedure insisted on in appeals to give to each party adequate information of the contention of the other and opportunity to prepare and present his own, any dissatisfaction over the conduct of a trial court may be examined, and its course directed, although thereby may be hastily adjudicated the whole merits of the litigation in advance. This is a mistaken impression. The court has neither found nor declared any new power or new jurisdiction. It did, in State ex rel. Fourth Nat. Bank v. Johnson, supra, but add one more to the very few instances in which a recognized constitutional power was found necessary to be exercised. We said upon this subject in State ex rel. Meggett
Not the least important of the utterances of this court in State ex rel. Fourth Nat. Bank v. Johnson, supra, are the declarations of the limits which we ought to and shall impose on ourselves in the exercise of the powers there discussed. We declared that such jurisdiction was “ not to be exercised on light occasion, or when other and ordinary remedies are sufficient” (p. 618), and said further: “It is not meant by this, however, that mcvnclamus will be used to perform the functions of appeal or writ of error, as seems to have been the tendency in the supreme courts of Alabama and Michigan. The duty of the court must be plain, the refusal to proceed within its jurisdiction to perform that duty must be clear, the results of such refusal prejudicial, the remedy, if any, by appeal or writ of error utterly inadequate, and the application for relief by mandmius speedy and prompt, in order to justify the issuance of the writ.”
The few instances of the actual exercise of the superintending control serve to emphasize these restricted limitations. In State ex rel. Att'y Gen. v. Eau Claire Co. Circuit Court, 97 Wis. 1, and State ex rel. Rose v. Superior Court, 105 Wis. 651, the court below was proceeding, wholly without jurisdiction, to adjudge guilt of criminal contempt upon citizens, and to impose upon them punishment as criminals,-— an invasion of the highest of individual rights, of which the sentimental aspect, at least, would be irreparable and remediless. In State ex rel. Brownell v. McArthur, 13 Wis. 407, State ex rel. Spence v. Dick, 103 Wis. 407, and State ex rel. Mitchell v. John
In the light of these general rules and these illustrations
It is not for us, however, in this summary proceeding, to decide whether the situation rendered either necessary or proper the refusal to discontinue, or the joining of the new plaintiff in the suit. We need not consider whether the com-jdaint states any cause of action, nor, if it does, whether such cause is as taxpayer or as abutting owner, nor, if the latter,
By the Oourt.— The imperative writ of mandamus is denied. ■ .