State ex rel. Green Bay & Minnesota Railroad v. Jennings

56 Wis. 113 | Wis. | 1882

Cassoday, J.

Are the rules and practice as to pleadings in ordinary actions applicable in cases of mandamus ? The provisions of the present statute entitled “proceedings in civil actions in courts of record,” relate not only to “ actions,” but also to “proceedings in the circuit courts.” Sec. 2593. Sec. 2600, E. S., provides that “the distinction between actions at law and suits in equity, and the forms of all such actions and suits, have been abolished, and there is in this state but one form of action for the enforcement or protection of private rights, and the redress, or prevention of private wrongs, which is denominated a civil action.” Sec. 8, ch. 122, E. S. 1858. That title also includes ch. 121, E. S., which prescribes “ the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are determined” (sec. 2644, E. S.), and gives the requisites of the only pleadings provided for, to wit, a complaint, answer, reply, and demurrer. The statutes also provide, in effect, that whenever any writ of mcmdamus shall be issued, the person, body or tribunal to whom the same shall be directed and delivered shall make return, and for neglect so to do shall be proceeded against as for a contempt. Sec. 3450, E. S. And whenever a return shall be made to any such writ, the person prosecuting the same may demur or answer all or any of the material facts contained in.the same return; and the like proceedings shall 'be had. thereon, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action for a false return. Sec. 3451, R. S.

But, notwithstanding the provisions of the statutes referred to, it is contended by the learned counsel for the relator that proceedings by mandamus are not affected by the code, but are regulated by the rules of pleading and practice prevailing at common law, and he cites in support of his position People ex rel. Lefever v. Ulster Co., 32 Barb., 417. In that case the defendants demurred to the reply or plea of the relator to a portion of the return, and the court directed judgment for the defendants on the demurrer, with leave to the plaintiffs to amend their plea on payment of costs. That decision, however, was reversed in the court of appeals (34 N. Y., 268), on the ground that the particular paragraph of the answer to which the plea or reply was made, was immaterial, impertinent, and frivolous. Page 269. In People v. Baker, 35 Barb., 105, it was held that “ the return must be good, tested by the ordinary rules of pleading, both in form and substance, and stands as the second pleading in the case.” Some of the New York cases have regarded proceedings by mandamus as an action for the purpose of taxing costs. People v. Colborne, 20 How. Pr., 378; People v. Lewis, 28 How. Pr., 172; S. C., id., 470. In the last case cited it was said at general term by MasoN, J., giving the opinion of the court, that “ if any question can be regarded as settled with us in this district, it is that a proceeding upon mandamus, where there has been a return, and the suit has gone to pleadings, and a trial thereon has been had, is not a special proceeding under the code, but am, action.” 28 How. Pr., 172. And, on appeal from the order, the court of appeals, per Davis, J., said: “ It is not an order which in effect determines the action and prevents a judgment from which an appeal might be taken to this court. It is not a final order made in a special proceeding, for this is an action.” 28 How. Pr., 471. The other authorities cited from New York by counsel for the relator are to the effect that immaterial matter stated in the return may be stricken out on motion, or “rejected as surplusage.”

But the New York cases are not altogether applicable, for the proceedings there are governed by the statutes and code of that state. Sec. 471 of their code, among other things, provides, in effect, that the second part of that act, being the part entitled “ of civil actions,” “ shall not affect proceedings upon mandamus.” The code, as originally adopted in this state, provided that, “until the legislature shall otherwise provide, this act shall not affect proceedings upon mcm-damus,” etc. Sec. 365, ch. 120, Laws of 1856. That provision was excluded by the revision of 1858, which, among other things, provided that “ all the forms of ■pleading heretofore existing are abolished, and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are determined, are those prescribed by this chapter” (sec. 1, ch. 125, R. S. 1858), which consisted of a complaint, answer, reply, and demurrer, as now. The legislature having thus excluded the saving clause as to mandamus, and abolished all existing “ forms of pleading,” and all “ distinctions between' actions at law and suits in equity, and the forms of all such actions and suits,” can it still be maintained that the rules of pleading and practice -in mandamus cases are not to be governed by the statute as to the sufficiency of such pleadings, but. by the rules which existed at common law?

It is true that at common law the words “ civil action ” would not include writs of mandamus. Commonwealth v. Commissioners of Lancaster, 6 Bin., 9. Mr. Bouvier says: “ The vital idea of an action is a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law.” On the other hand, a mandamus, at the common law of England, was denominated a prerogative writ, and was originally issued out of tbe court of Chancery, but subsequently out of the court of King’s Bench, because the king originally sat in those courts in person, and aided in the administration of justice. Hence, in theory- at least, it was not so much the individual seeking redress as the king who was the actor. In this country it cannot be a prerogative writ; but, nevertheless, partakes of the nature of such a writ, and under the constitution and laws is issued by the courts. Attorney General v. Railroad Companies, 35 Wis., 512 et seq. Beyond question it is, however, in a proper case, in substance a civil remedy for the citizen who has been deprived of a clear legal right, notwithstanding it is commenced and prosecuted m the name of the state. The state is only a nominal party. Brower v. O'Brien, 2 Carter, 431; State v. Commissioners, 5 Ohio St., 502.

The word “ suit ” is frequently used in practice as synonymous with the words “ civil action,” but, nevertheless, it seems to be more comprehensive, and includes proceedings in chancery as well as law. Didier v. Davison, 10 Paige, 516. The word “ suit ” was held to include a writ of. prohibition in Weston v. City of Charleston, 2 Pet., 449. Chief Justice Mabshall, speaking for the court, there said: “ The term is certainly a very comprehensive one, and is understood to apply to any proceeding-in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him.” Page 464. One definition of the word “ suit,” as given by Bouvier, is: “A petition to a king or a great person, or a court.” Other dictionaries give similar definitions. In Yermont it has been held to include a petition by a creditor of a decedent estate to liquidate and recover his demand. Calderwood v. Calderwood, 38 Vt., 176. So proceedings to condemn lands for public use have been held to be a suit within the meaning of the judiciary act. U. S. v. Block 121, 3 Biss., 208; Warren v. Wisconsin Valley R. R. Co., 6 Biss.; 425. In Georgia it has been beld to include a petition for a writ of certiorari. Hendrix v. Kellogg, 32 Ga., 435. So it has been held to include proceedings bj mcmdamus. McBane v. People, 50 Ill., 506-7; Felts v. Mayor, 2 Head, 650.

Our statutes on the subject of pleading speak not only of “ actions at law and suits in equity,” but also of “ the forms of all such actions and suits.” Believing that our statutes respecting pleading and practice should have a liberal construction, we are constrained to hold that a proceeding by mandamus is essentially a suit, and that when issue is joined by the return it becomes, in effect, a civil action within the meaning of the statutes, and as to forms and sufficiency of the several pleadings must be governed and controlled by the same rules which prevail in other civil actions. Of course the relation is to be regarded the same as a complaint, and the return as the answer to which a demurrer or reply may be interposed. This is in harmony with the repeated adjudications of this court. Applying the ordinary rules of practice and pleading in civil actions to the case before us, and we must hold that that portion of the order refusing to strike out a portion of the return is not appeal-able, for the reasons given in Supervisors v. Decker, 28 Wis., 669; Noonan v. Orton, 30 Wis., 609.

One portion of the order appealed from by the defendants strikes out the following portion of the return: “ 1. That at the commencement of this action there was and now is another action pending in the circuit court of Waupaca county, in this state, between the same parties as this action, and for the same cause as that set out in the petition herein.” This portion of the answer, alleging another action pending, is substantially in the form given in 2 Abb. Forms, 26, No. 747. Assuming that it may be interposed as a pleading, then if its language is not sufficiently definite the remedy is by motion to make it more definite and certain, and not by disregarding it or striking it out altogether. Redmon v. Phœnix Ins. Co., 51 Wis., 298. Assuming that it may be interposed as a plea in abatement, then it is not objectionable as being united with a plea in bar, for it is settled that a plea in abatement may be united with a plea in bar. Freeman v. Carpenter, 17 Wis., 126; Dutcher v. Dutcher, 39 Wis., 652; Board of Supervisors v. Van Stralen, 45 Wis., 676; Hooker v. Greene, 50 Wis., 271. The plea in abatement here was probably stricken out on the theory advanced by counsel for the relator that this is not> a civil action, and hence that the plea could not properly be interposed. But having held that it is a suit, and essentially a civil action, so far as the rules and practice as to pleading are concerned, it is unnecessary to consider that question further. Nor do we think the right to interpose such plea was waived by demurring to the relation and moving to quash. It is not claimed that it appeared upon the face of the relation that there was another action pending; and, since that is so, the statute expressly provides that “ the objection may be taken by answer.” Sec. 2653, R. S.; sec. 8, ch. 125, R. S. 1858. For these reasons we must hold that the plea in abatement was improperly stricken out.

By the fifth subdivision of the return, the defendants have at least attempted to allege facts showing a rescission of the vote upon which the liability was predicated. Some of the allegations may justly be regarded as vague and indefinite, but they are quite as definite and certain as in Redmon v. Phœnix Ins. Co., supra. If the relator regarded them as too indefinite and uncertain, it had its remedy by motion. But, under the liberal rule of construing pleadings adopted by this court, we are clearly of the opinion that it cannot properly be regarded as frivolous, so as to authorize the court to strike out the same under sec. 2681, R. S.

By the Co%vrt.— For the reasons given, the appeal 'taken by the relator is dismissed, and those portions of the order striking out portions of the return are reversed, and the cause is remanded for further proceedings according to law.