State ex rel. Dilworth v. Braun

| Wis. | Jun 15, 1872

Lyoít, J.

The motion to quash the return to the alternative writ of prohibition is in the nature of a demurrer thereto; and, like a demurrer, it reaches back to the first defective pleading. If, therefore, the relation does not state a cause for issuing a writ of prohibition, it may be quashed on this motion.

We have come to the conclusion that the relation does not state facts sufficient to entitle the relator to the relief demanded by him, and hence that the same must be quashed. • Our reasons for this conclusion will be very briefly stated.

I. We are of the opinion that the finding or judgment of Justice McWhorter is a complete bar to further proceedings for the same cause against the relator. In order to charge a man with the maintenance of a bastard child, two adjudications, each by a different tribunal, are necessary, one by a justice of the peace that there is probable cause to believe that he is the father of such child, and the other by the circuit court that he is its father. The jurisdiction of the circuit court to make the latter adjudication depends absolutely upon the fact that some justice of the peace had made the former. It is very questionable, if the exámination be waived, and the accused recognize to appear before the circuit court to answer the charge against him, without any adjudication of probable, cause by the justice, whether that court cau take jurisdiction of the proceeding. I am strongly inclined to the opinion that it cannot. This proceeding is not like the examination of a person charged with crime, under the law as it formerly existed, because such examination was not essential to the validity of an indictment against him for the same offense, and determined nothing conclusively as to the guilt or innocence of the accused. The object of the examination was only to hold the accused, in proper cases, to answer an indictment for the offense, should one be found against him therefor, and not, as in a bastardy case, to lay the foundation upon which alone the circuit court could obtain jurisdiction in the matter. How far this may be changed, in ordinary criminal prosecutions, by our new system of criminal procedure, need not be Rere determined. Laws of 1871, ch. 137 (Tay. Stats., 1929). See also Morrissey v. The People, 11 Mich., 327" court="Mich." date_filed="1863-05-20" href="https://app.midpage.ai/document/morissey-v-people-6632965?utm_source=webapp" opinion_id="6632965">11 Mich., 327.

It is an elementary principle of the law, and one of universal application, that the judgment of a court of competent jurisdiction upon any subject matter is final between the same parties in all tribunals, unless the same be reversed by the appellate or supervisory court, or lawfully set aside by the court which rendered the judgment. Why does not this principle apply here ? A court having jurisdiction of the subject matter, and of the person of the defendant, after full investigation and in strict compliance with the forms of law, has adjudged that there is not probable cause to believe that the relator is the father of the child in question. That judgment has not been disturbed, but remains in full force. Why then is it not a verity in this case that no such probable cause exists? We think that it is, and that the adjudication of Justice McWhorter is final and conclusive in that behalf. 0

2. We see no good reason why the relator, in the proceedings before Justice Braun, may not prove as a defense the judgment of Justice McWhorter. The question to be tried is, whether there is probable cause to believe that the relator is the father of the child; and any testimony pertinent to that question must necessarily be admissible. But the judgment of Justice McWhorter is pertinent thereto, because it not only tends to prove, but it conclusively proves, that no such probable cause exists. Hence such judgment may be given in evidence in the proceedings before Justice Braun. Were the relator required by law to interpose pleadings in the proceedings against him before the justice, it might, perhaps, be necessary for him to plead such adjudication in bar. But no pleadings on his part are required or allowed. This cannot, however, destroy his right to prove any fact pertinent to the question to be tried and determined by the justice.

3. The law doubtless is, that if the relator has an adequate remedy by any ordinary legal proceeding, the writ of prohibition should not issue. We think that he has such a remedy. He has only to make proper proof before Justice Braun of the finding or judgment of Justice McWhorter, and he will be entitled to his discharge at once.

The alternative writ of prohibition must be quashed.

By the Court. — So ordered.