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

134 Wis. 301 | Wis. | 1908

Maeshaul,’ J.

Tbe important proposition to be met at tbe outset in this cause is: Ought tbe court, under tbe circumstances, to allow tbe use of its power of superintending control to test tbe question of whether relator was entitled to a change of venue, as requested ?

Counsel for both sides failed to argue tbe proposition mentioned. They seem to have taken for granted that it was passed upon at tbe time of granting tbe alternative writ, or was then deemed not to be open to serious controversy in tbe light of previous decisions. Tbe fact is, though undisclosed by anything' appearing in the record, it is true, that when the alternative writ was issued it was considered quite doubtful whether the court ought to take jurisdiction of the matter, but it was thought best to give the relator the benefit of the doubt, to the extent of allowing proceedings up to a point enabling counsel to aid the court, if they desired, by a full discussion of the initial question. As the matter stands, we must order a reargument or treat the question without aid of counsel, since their attitude in respect thereto does not relieve the court from its duty of deciding the matter, As the case has been already very much delayed by various motions and proceedings it seems that every reasonable effort should he made to prevent any further putting off a final determination.

While the jurisdiction of superintending control conferred upon the court by the constitution is very broad and, as said in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, quoting from a decision elsewhere, it “is fettered by no restriction or limitation; it is as broad as the exigency of the case demands,” as therein indicated it should not be used except in such extreme cases as to render such course necessary to prevent a serious miscarriage or denial of justice and when there is no other remedy at all or none fairly adequate to the case.

In harmony with the foregoing the instances where the power of superintending control has been used during the history of this court are very few and do not include any situation precisely like the one in hand. The nearest approaches thereto are State ex rel. Rowell v.Dick, 125 Wis. 51, 103 N. W. 229, where the judge was disqualified by reason of having been concerned in the litigation as an attorney and application was.made for a change of venue on that ground under sec. 2623, Stats. (1898), which expressly entitled the applicant thereto, and State ex rel. Schutz v. Williams, 127 Wis. 236, 106 N. W. 286, where an application was made for a change of venue on the ground of the prejudice of the judge before whom the case was brought for trial.

In both of the instances mentioned there was a clear want of jurisdiction of the circuit judge to act otherwise than bj granting the motion, for the change. Ho intricate question of law was involved. The statute expressly required the change to be granted. In neither case did it seem that there was any very good ground for denying the application or hesitating in that regard. The rule laid down by the two decisions should not be considered as going to the extent of holding that in every case, where a trial judge erroneously denies an application for a change of venue, he will be coerced in the matter by the superintending control of this court.

In this instance there was no clear statutory requirement for the change. A number of questions were involved in respect to each of which the trial court might well have hesitated as to the right thereof. There is the question of whether the demand for the change was seasonably made or not, depending on, in one phase of the matter, the effect of the first attempt to commence the action, and the undisturbed holding of the trial court in respect thereto. Then there is the question of whether an action brought in the proper'county for trial as to one defendant must necessarily be changed upon the application of the other to the proper county for trial as to the former if sued alone, upon its application, the code-fendant joining. There were questions, particularly those indicated, which were somewhat or entirely new and involved considerable difficulty.

In face of the situation indicated how can we well say that the trial judge acted in the face of and contrary to a clear legal right? There can hardly be such a right; one clearly within the cases referred to, where there are quite difficult questions of law or fact, or both, which must he solved, affording ample room for a trial judge, proceeding considerately, to commit judicial error in reaching a conclusion.

It is the opinion of the court that in such a situation as is here presented, as a rule, the power of superintending control should not he used to coerce the trial judge, hut that the alleged error should be left to be dealt with upon appeal from the final judgment in the action. ' If the errors could not be preserved for such review the case might be different. True, such errors, if allowed to remain uncorrected till review upon appeal from the final judgment,, might result in some prejudice to the parties litigant, but if that were un-qualifiedly sufficient to warrant the bringing of matters to this court under its power of superintending control, we should have a very frequent exercise thereof as is the case in some other jurisdictions, contrary to the settled policy of this court as indicated in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. Use of the jurisdiction invoked is not necessary here to prevent a failure of justice, as was the case in State ex rel. Fourth Nat. Bank v. Johnson, which was the real ground upon which such jurisdiction was there exercised and which was referred to as justifying it. There is no emergency in this case sufficient to justify such use.

Erom the foregoing we deduce this rule as governing the case: The superintending control of this court over inferior courts will not be extended to determine whether a circuit judge should do what he has refused to do where the error claimed to have been committed is reviewable on appeal from the order entered in the matter, or from a final determination of the action or proceeding in which it was made, and the refusal does not deny a dear statutory right, but involves the determination of questions of law or fact, or both, of such difficulty that a judge might reasonably, proceeding considerately, commit judicial error.

JBy the Court. — The proceedings are dismissed with costa to the respondent.