State ex rel. Milwaukee Electric Railway & Light Co. v. Circuit Court for Rock County

133 Wis. 442 | Wis. | 1907

Winslow, T.

This is an application to this court for the exercise of its superintending control by mandamus for the purpose of preventing an inferior court from overstepping the bounds of its jurisdiction. That control will only be exercised where the duty of the inferior court to act within its jurisdiction or to refrain from going beyond its jurisdiction is plain and imperative, where such court threatens to violate that duty to the substantial prejudice of the rights of the petitioner, where all other remedies are inadequate, and the application for relief prompt. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158. This is plainly not such a case. While the petitioner claims that two separate actions were pending here, one commenced by defective service of summons on February 15th and the second by legal service of another summons on March 8th, it is rendered certain by the return that there was in fact but one action, in which there were two attempts to make service of the summons. The second attempt was admittedly successful, and so, regardless of the question of the validity of the first attempted service, the court below has jurisdiction to proceed with the case. Upon the trial of this cause it doubtless will be necessary to determine whether the first attempted service of the summons and complaint was a valid service, because if it was not valid, and no notice of injury was served within the year following the injury, the cause of action will he barred under the provisions of subd. 5, sec. 4222, Stats. (1898). The fact that this question will arise, however, does not in any sense deprive the court of jurisdiction to proceed with the action.

We express no opinion here as to the validity of the first attempted service. If it were conceded to he invalid and there had been no subsequent valid service, we should greatly doubt the propriety of exercising our superintending control by mandamus to compel dismissal of the action. Cases may perhaps arise where the duty to dismiss under such circumstances is so plain and imperative, the result of failure to dismiss so prejudicial, and-the remedy by appeal so utterly inadequate and burdensome, that the remedy by mandamus-should be applied; but this is not one of them.

By the Court. — The imperative writ of mandamus is denied.