64 Wis. 218 | Wis. | 1885
The appeal in this case must be dismissed. The proceedings are erroneous from the beginning to the end. (1) The rule to show cause is why a peremptory writ of mandamus should not be granted. (2) The rule was heard as a mere motion on affidavits. (3) The so-called peremptory writ was a mere order by the court signed by the judge. (4) The appeal to this court is taken from this so-called writ of mandamus. These several errors will be noticed in their order.
1. The rule to show cause, as the first step in the proceedings, if any rule to show cause is granted at all, should have
2. The circuit court erred by trying and determining the facts upon affidavits, as we have already seem As soon as it appeared that the facts were in controversy, an alternative writ should have been ordered upon the same relation, as directed in the above case in 49 Wis. 231.
3. The peremptory writ is essentially a writ of the court,
4. The appeal is taken to this court from the so-called writ of mandamus, instead of the order or judgment of the court allowing it, if there was any. The printed case contains what is called “ entry made on minutes of the clerk,” etc., in which is the entry, “ Peremptory writ of mandamus granted; ” but no appeal is taken from this order, if order it can be called, and the minutes or record of the clerk, so stated in the printed case, has not been returned to this court, and is no part of its record in this case, and ought not to have been put in the printed case. It seems that the so-called writ of m,(mdmnus has been served upon the board of supervisors by the sheriff, and his return appears indorsed thereon. This proceeding is too irregular to be relied on, and we see no objection to the circuit court setting aside all the proceedings since the filing of the application and the counter-affidavits, and ordering.an issue of an alternative writ according to the direction in Schend v. St. George's G. A. Soc. supra, and a similar order will be made herein.
By the Oourt. — The appeal is dismissed, and the cause remanded with directions to the circuit court to award an alternative writ of mamdamus on the motion of the relator.