Tourville v. S. D. Seavey Co.

124 Wis. 56 | Wis. | 1905

Maeshall, J.

As indicated in tbe statement, tbe only jurisdictional defect mentioned in tbe petition is tbe omission to enter upon tbe court docket tbe place to'which tbe trial of tbe cause was adjourned. We agree with respondents counsel that proper practice requires tbe applicant in such cases to state in bis” petition specifically tbe jurisdictional defects relied upon, tbe court issuing tbe writ to regard all others, if any there be, waived, and to affirm or reverse tbe judgment or other final decision involved according to tbe effect thereon thereof. There is no definite declaration to that effect in our decided cases, neither is tbe practice regulated by statute. It is wholly of judicial origin and came to us with the common-law writ which was preserved in our judicial system. In like situations elsewhere courts in reviewing proceedings as to jurisdictional defects when challenged by such a writ, universally regard those not specified as relied upon in the petition as waived.

The writ of certiorari is not one of strict right. Whether it shall or shall not issue in any given case rests in the sound discretion of the court. Knapp v. Heller, 32 Wis. 467; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N. W. 167. Hence the propriety of requiring every jurisdictional defect, upon which the petitioner intends to rely, to be plainly pointed out and brought to the attention of the court in order that its discretion may be intelligently exercised in passing, upon the application for the writ, and the propriety also of examining the return only as it responds to the points of challenge. The return on such points, when it fully presents the' record, is conclusive and furnishes the sole basis for answering the question of whether the judgment should be reversed or affirmed. The statement in 4 Ency. of Pl. & Pr. 293, to-which respondent’s counsel refers, voices the rule in that regard correctly, thus:

“The petition or affidavit upon which the writ issues serves-the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record.”

The numerous cases cited in the note fully bear out the' text, among them being the following: Everett v. C. R. & M. R. Co. 28 Iowa, 417; Hollins v. Johnson, 3 Head (Tenn.) 346; Noel v. Scoby, 2 Heisk. (Tenn.) 20; Lyles v. Cox, 10 Lea (Tenn.) 738; Adams v. Fitzgerald, 14 Ga. 36; New Jersey R. & T. Co. v. Suydam, 17 N. J. Law, 69; Curran v. Atkinson, 1 Ashm. (Pa.) 51.

The question of whether failure to state the place to which the cause was adjourned was fatal to the jurisdiction is ruled • in favor of respondent by State ex rel. LeClair v. Wright, 80 Wis. 648, 50 N. W. 894, where upon due consideration it was held that the doctrine of Brown v. Kellogg, 17 Wis. 475, and similar cases respecting necessity for strict compliance with the statute, sec. 3574, Stats. 1898, as to entering upon the docket of a justice of the peace the place to which he adjourns a case for further proceedings, should not be extended to any court required to hold its sessions at a particular place provided therefor by public authority. The reason for the strict rules as to justices is that, without such an entry as the statute requires in case of an adjournment, the parties interested would have no way of knowing where the case would again be taken up, except by the verbal declaration of the justice, and the statute plainly does not require dependence to rest on that. Such reason, of course, is entirely wanting, where the sessions of the court are required by law to be held: at a particular place. By a familiar principle, the reason for the rule failing, the rule itself has no application. See’ Snyder v. Malone, post, p. p. 59, 102 N. W. 354.

True, there is a difference between the statute under consideration in State ex rel. LeClair v. Wright, and the one in’ question. In the former the place for trials was required to be provided by the municipality and no discretion was given to the judge to try causes elsewhere, while in the latter the-situation is the same, except in that authority is given the judge to try cases in some room in the court house of Douglas county whenever he deems it convenient for himself, the-witnesses, or parties. Under such law the place where the-summons is made returnable, by necessary inference, is the-one where the cause will be called for trial in case of an adjournment, in the absence of some entry upon the docket made-on the day of such adjournment naming some other proper place therefor in the court house of Douglas county, and there is no better reason for applying the strict rule as to justices’’ courts in such circumstances than in case of a statute not giving the discretionary authority referred, to. Such strict rule-Ras a legitimate basis, but it is liable to lead to much hardship where failure to comply with it really is not prejudicial to the one liable to invoke it. lienee it is considered that it should be confined quite closely within the boundaries of the reason therefor.

By the Gourt. — Judgment is affirmed.