State ex rel. Flint v. Common Council of Fond Du Lac

35 Wis. 37 | Wis. | 1874

Dixoh, C. J.

The writ of certiorari had not been served in the manner required by law, and therefore the motion to quash appears to have been irregular. Service of the writ is made by delivering the writ itself, not a copy, to the j udge or other officer of the inferior court or tribunal to whom the writ is directed. Such is the practice at common law, and such the practice which has always prevailed in this state. 2 Arch. Pr., 720 ; 1 Tidd’s Pr., 404. The service here was by copy delivered to and left with the mayor, which was insufficient, and upon which the defendants cannot be compelled to make return.

If the defendants make voluntary return, that may suffice and constitute a waiver of the objection. 1 Tidd, 403. If, however, they object to make a return, and wish to take advantage of the informality or insufficiency of the service, and to have the judgment of the court upon it, their remedy would seem to be by motion to supersede the writ because of the defective service. Ib.

“ If the writ be misdirected, or otherwise bad in point of law, the coart will order it to be quashed, if before them; or, if not returned, will grant a supersedeas. But the court*cannot quash a writ that is not before them.” ITidd, 403. If the writ could be regarded as before the court so that the motion to quash was proper, the sheriff having brought back the writ with his certificate of supposed service indorsed, still the motion was mot made on such ground or because the writ had not been served as required by law. It is probable, if such objection had been taken, that the court would have directed the proper service.

But whatever may have been the defects in the writ or the service, they are in strictness not questions before us for consideration at this time. The foregoing remarks have been made rather for the purpose of pointing the way to correct practice in the future in the action, than because they were deemed necessary to a decision of this appeal. The court is of opinion that the order in question is not appealable, and that the appeal must be dismissed. An examination of the statute (2 Tay. Stats., 1685, §¿11) will show that it is not, one of those orders from which an appeal is given to this court.

It may be proper also to remark that the case of Seifert v. Brooks, decided at the present term (34 Wis., 443), will be found to have settled some important points touching the merits of the controversy, out of which this proceeding by common law certiorari seems to have arisen.

By the Court. — Appeal dismissed.