117 Wis. 668 | Wis. | 1903
Tbe question before us for decision is not whether tbe examining magistrate committed jurisdictional error in deciding that a proper case was presented to him upon tbe complaint and tbe evidence for bolding tbe accused for trial, but whether tbe court commissioner, in tbe habeas corpus action, committed jurisdictional error in deciding that tbe examining magistrate did not commit such error. That is a situation evidently not comprehended by counsel upon either side, who probably shaped their course in tbe light of State ex rel. McCaslin v. Smith, 65 Wis. 93, 26 N. W. 258, and Wright v. Wright, 74 Wis. 439, 43 N. W. 145. A writ of certiorari reaches only jurisdictional errors, when sued out
The practice of testing the validity of decisions of circuit court commissioners in habeas corpus proceedings by writ of certiorari, m> question being raised other than that the commissioner did not decide right upon the merits of the application, grew up apparently unchallenged from the ancient rule, having now no place in our jurisprudence, that a person illegally restrained of his liberty may have successive writs of habeas corpus till he finally vindicates his right; that the decision upon one writ is not res judicata upon a subsequent writ involving the same matter; and that failure to decide favorably to the right to- be set at liberty, if error at all, is jurisdictional error. It must now be considered that where
The last relic of the practice that all errors committed in habeas corpus proceedings are jurisdictional errors and therefore that in case of a challenge of a decision upon writ of error or certiorari a decision relievably wrong at all may properly be regarded as jurisdietionally wrong, was swept away by the statutory change giving the state as well as the accused the benefit of a writ of error to obtain a review of a judgment in a habeas corpus action before this court. Now the suing out of a writ of habeas corpus is in effect the commencement of an action wherein there is a plaintiff and defendant. The conclusion reached in the first instance, whether it be by a judge at chambers or a circuit court commissioner exercising the powers of a judge at chambers, within the jurisdiction of the officer to decide at all, is res judicata till set aside by some subsequent proceeding in the same matter according to the legal procedure for reviewing judicial errors. State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046.
It is well understood, generally speaking, that a circuit court commissioner, in deciding questions which he has jurisdiction to decide, does not commit jurisdictional error merely because of reaching a wrong conclusion. A decision in a habeas corpus action now stands in no different position than one in any other proceeding. If it be desired to review it upon the merits a motion should be made in the ordinary way for a review before the circuit court. In re Hammer, 113 Wis. 96, 89 N. W. 111. If it be desired thereafter to present the question of whether the decision rendered is right, a writ of error may be sued out of this court for that purpose.
By the Court. — The order and judgment are affirmed.