184 Wis. 557 | Wis. | 1924
These proceedings are had under the provisions of secs. 89.01 to 89.70 of the Statutes. They are purely statutory. Sec. 89.03 provides that all proceedings under the drainage district law are equitable in their nature, and sub. (3), sec. 89.07, provides that all issues arising under the drainage district law except issues of benefits and damages shall be tried by the court without a jury. So far as an appeal by a petitioner is concerned, the statute, sec. 89.15, provides, “The time within which an appeal to the supreme court may be taken from any judgment or appealable order in drainage proceedings is limited to thirty days from the date of entry thereof.” It is contended by the attorney for
Reliance is placed by petitioners on art. I, sec. 21, of our constitution, providing that writs of error shall never be prohibited by law. When the constitution was adopted a writ of error lay only in pure actions at law, and it is a familiar doctrine that a constitutional provision must be interpreted in the light of conditions as they existed at the time of the adoption of the constitution. This court in
“There is, however, no constitutional provision or statutory enactment enlarging its scope or increasing its functions. It lay then, as it only lies now, after judgment in any action at law in a court of record, to correct some supposed mistake in the proceedings or judgment of the court. It was never granted to review a judgment in an equitable action.” Delaplaine v. Madison, 7 Wis. 407; Howes v. Buckingham, 13 Wis. 442; Shannon v. State, 18 Wis. 604; Costello v. Buck, 25 Wis. 477; Crocker v. State, 60 Wis. 553, 19 N. W. 435.
While it is true that in drainage proceedings the issue as to amount of damages may be tried by a jury, nevertheless the statute clearly provides that the proceedings shall be and are equitable in their nature. It is therefore clear that under the terms of the drainage statute no writ of error will lie to* review any order or judgment entered thereunder. It is familiar law that as to purely statutory proceedings, unless provided for by statute a writ of error does not lie, especially where the right to appeal is specifically given by the statute itself. In such case that remedy is exclusive. The attorney for petitioners calls our attention to the case of Drummer Creek Drainage Dist. v. Roth, 244 Ill. 68, 91 N. E. 63, in which he says the supreme court of Illinois held that a writ of error lay in a drainage proceeding. Upon an examination of that case it will be found that sec. 16 of the amended act under which the writ of error was sued out provided, among other things, that the order organizing the district “shall be final, and separate or joint appeals and writs of error may be taken to the supreme court by the parties affected thereby.” It will thus be seen that the Illinois drainage act specifically provided for writs' of error. The case of Aldridge v. Matthews, 257 Ill. 202, 100 N. E. 536, is also relied upon as authorizing a writ of error to be sued out in drainage proceedings. The official report shows that that case came up on appeal from the circuit court and
By the Court. — The petition for a writ of 'mandamus is denied, and the motion of the remonstrants to dismiss the proceeding is granted, with costs.