58 Wis. 4 | Wis. | 1883
In this case a common law writ of certiorari was issued out of the circuit court of Milwaukee county, directed to said respondent county, for the purpose of reviewing the proceedings of the county board of supervisors ■of said county in discontinuing a certain street in the city of Milwaukee. Application for the writ was made upon the affidavit of the relator, setting out the said proceedings and stating the irregularities in the same which he deemed fatal to their validity. The writ was duly allowed by the circuit judge. In obedience to the command of the writ, the said respondent, through its county clerk, made return to said writ, and on such return set out all the proceedings had and taken by the said county board in vacating said street, so far as there was any record of the same. - After such return was made the matter was brought to a hearing before the said circuit court upon all the records, papers, and proceedings had in the case, and thereupon the said circuit court
The counsel for the appellant claim that it was error for the circuit court to supersede and set aside the writ of cer-tiorari after a return had been made by the county according to the command of the writ. This objection to the order of the circuit court seems to be well taken, as this court has decided in the following cases: McNamara v. Spees, 25 Wis., 539; Morse v. Spees, id., 543; Owens v. State, 27 Wis., 456. The case having been heard upon its merits after a return to the writ, it was irregular to supersede or set aside the same. If -the respondent desires to supersede the writ, the regular way to effect that purpose is to move the court for such order before the return is made; and if he does not desire to have the court pass upon the merits of the proceeding after the return to the writ is made, he may then move to quash the writ upon any ground which shows that the writ ought not to have been issued, or that it was misdirected, or bad in point of law. A motion to supersede the writ may be based- upon the same grounds as a motion to quash it. The distinction made by the courts is that a motion to quash can only be made after the writ is returned to the court in which the motion is made, but the motion to- supersede the writ may be made before it is returned to- the court. Ball v. Warren, 16 How. Pr., 379; Ferguson v. Jones, 12 Wend., 241; 1 Tidd’s Pr., 335; 2 Burrill’s Ph, 250; Milwaukee Iron Co. v. Schubel, 29 Wis., 444; Wordsworth, v. Sibley, 38 Wis., 484; 2 Atk., 318; Morse v. Spees, 25 Wis., 543; McNamara v. Spees, id., 539; State ex rel. v. Fond du Lac, 35 Wis., 37-46; Hauser v. State, 33 Wis., 678-683.
For the irregularity above mentioned, the order of the chs. cuit court must be reversed. But as the whole record is before us we consider it our duty to look into the same and determine what judgment the court ought to render on the merits. This is the course generally adopted by this court in like cases. See McNamara v. Spees, 25 Wis., 539; Owens v. State, 27 Wis., 456. The case of Morse v. Spees, 25 Wis., 543, is in conflict with the rule stated, but does not seem to have been followed by this court in any subsequent case; and we adopt the rule in the cases first cited as the one best calculated to further the ends of justice and prevent unnecessary litigation.
The only error in the proceeding to vacate the streets, complained of by the appellant, is that the notice of the application to vacate the streets was not posted for the length of time required by the statute. The notice published and posted stated that the application would be made to the county board of supervisors on the 25th of March, and it is alleged that the application was in fact made on the 5th of March.
The law under which the board of supervisors acted in
It will be seen that the statute requires the applicant to the board of supervisors to give such notice of his application to vacate a street as is required in vacating town, city, or village plats in the circuit courts, and in such cases ithe applicant is required to give notice sixty days before the .sitting of the court to which he intends to make application. In the case at bar the notice of application was .given more than sixty days before the county board acted ■upon the petition of the proprietors, and more than sixty Nays before the 25th of March, but less than sixty days before the petition was presented to the board and referred to a committee thereof. No action having been had on the petition by the board until after the sixty days had expired,
The question as to the time within which a common law writ of certiorari ought to be allowed has been quite fully discussed in this case, and we deem it proper to add that, as a general rule, it ought not to be granted after the expiration of two years after the judgment or proceeding has been perfected which is sought to be reviewed, in analogy to the limitation of the time within which an appeal or writ of error may be taken. The application of this rule does not depend upon another question which has been also discussed in this case, viz., whether the party aggrieved by the proceedings is or is not entitled to the writ ex debito justitice, or
This rule has been approved by other courts and is undoubtedly a salutary rule. Dye v. Noel, 85 Ill., 290; Trustees v. School Directors, 88 Ill., 100; State v. St. Louis, 4 Mo. App., 577; Elmendorf v. Mayor, 25 Wend., 693; People v. Hill, 53 N. Y., 547; People v. Stilwell, 19 N. Y., 531-533; People v. Commissioners, 77 N. Y., 605; Keys v. Supervisors, 42 Cal.., 253; Hagar v. Supervisors, 47 Cal., 222; Rutland v. Commissioners, 20 Pick., 83; In re Lantis, 9 Mich., 324. This question was discussed by counsel in the case of Wilson v. Heller, 32 Wis., 457-465. In the opinion in that case the present chief justice says: “ The counsel for plaintiff concedes that in analogy to the statute limiting the time within which a writ of error may be sued out, the court would probably not award the writ after two years except upon very special grounds.” And the writ in that case was held to be properly allowed, because brought within the two years. It will be seen that the cases in this court and in the New York
By the Court.— The judgment of the circuit court is reversed, with costs, and the cause remanded with directions to the circuit court to affirm the proceedings of the county board of supervisors.