In re Application of Sherper's, Inc.

• Citation: 33 N.W.2d 178,253 Wis. 224
• Parties: Application of SHERPER'S, Inc., et al.
• Decision Date: 01 July 1948
• Court: United States State Supreme Court of Wisconsin

253 Wis. 224

33 N.W.2d 178

Application of SHERPER'S, Inc., et al.

Supreme Court of Wisconsin.

July 1, 1948.

Original action. Prohibition. Petition denied.

On May 24 1948 Sherper's Inc., a Wisconsin corporation, Martha Scherper, individually and as an officer of Sherper's, Inc., Lionel Scherper, individually and as an officer of Sherper's, Inc., and Donald Scherper applied to this court for permission to commence an original action for a writ of prohibition directed to the Hon. Otto H. Breidenbach, judge of the circuit court for Milwaukee county and commanding him to suppress certain discovery proceedings under sec. 326.12(4).

Martin J. Price and Samuel Saffro, both of Milwaukee, for petitioners.

Herman M. Knoeller and George Graebner, both of Milwaukee, for defendant.

WICKHEM, Justice.

The petition in this case alleges that Sherper's Inc. is a Wisconsin corporation with its principal place of business in Milwaukee; that the individual petitioners are stockholders or officers of this corporation; that Paul L. Moskowitz was appointed receiver of Sam Scherper on November 21, 1947 and on April 8, 1948 commenced an action against petitioners, and served notice of a discovery examination of petitioner, Martha Scherper, individually and as secretary of Sherper's Inc.; of Lionel Scherper and Sam Scherper, individually and as officers of the corporation; of Donald Scherper; that these were accompanied by affidavits to the effect that the examination is under sec. 326.12(4), Stats.; that at the same time a subpoena duces tecum was served upon Martha Scherper specifying the papers and records to be produced under the subpoena; that petitioners moved the circuit court for Milwaukee county to suppress the subpoena and that this relief was denied. It is alleged that petitioners are aggrieved and injured and without remedy by appeal and that these therefore invoke the superintending control of this court.

The question is whether this court shall permit the commencement of this action. In Hyslop v. Hyslop, 234 Wis. 430, 291 N.W. 337, this court after a review of the cases, some of which were not wholly consistent, held that an order refusing to suppress an adverse examination is not appealableand that subject is fully and finally closed. That, however, is the very ground upon which this application for the exercise of original jurisdiction is based, namely, the absence of any remedy by appeal. Petitioners assert that they have a right under State ex rel. Wisconsin Bridge & Iron Co. v. Sullivan, 245 Wis. 544, 15 N.W.2d 847, to the exercise of this court's superintending control to prevent an inquisition into petitioners' affairs.

It was pointed out in State ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis. 366, 243 N.W. 763, that the question presented has to do with the judicial policy not with the power of the court. In the Sullivan case, supra, without opinion, and indeed, without any opposition, the court granted permission to commence such an action. Furthermore, upon the facts as set forth in the opinion a showing of hardship was made. Hence, although the court considered the matter upon its merits it did not expressly pass upon the question whether such a case should be entertained. In the Hustisford case, supra [208 Wis. 366, 243 N.W. 765], it was said that the question of assuming original jurisdiction is ‘one of judicial policy rather than one relating to the power of this court.’ It was stated that this power will not be used lightly; that it will not be permitted to perform the office of an appeal; that it will not be exercised where the remedy by appeal is adequate and will only be used to prevent irreparable mischief. The court said, ‘On the one hand, it is evident that this court cannot, without causing the disorganization and breakdown of the judicial machinery of the state, permit trials to be suspended in every case where error on the part of the trial court is claimed, while it determines the propriety of the ruling. On the other hand, great burdens in the form of expense and delay, and amounting to a denial of justice, may occasionally be imposed upon parties, should this court take the position that its superintending power will never be exercised to review the interlocutory ruling of a trial court, unless the error is jurisdictional in character.’

It was further said that no categorical answer may be given as to...