In re Schumaker
| Decision Date | 20 June 1895 |
| Citation | 63 N.W. 1050,90 Wis. 488 |
| Parties | IN RE SCHUMAKER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Petition by L. P. Schumaker and others for the incorporation of a village to include part of the territory of another village, to which the latter filed an answer. From an order referring the issues to a referee, the town appeals, and moves for a stay of proceedings and a writ of prohibition. Denied.J. C. Kleist and Rublee H. Cole, for petitioners.
J. L. O'Connor, for respondent.
Schumaker and others made petition to the circuit court of Calumet county, under the provisions of section 854 et seq. Rev. St., for the incorporation of certain territory as a village. Three-fourths of the territory of the proposed village was situated in the town of Rantoul, and this town appeared and filed an answer to the petition, raising certain issues thereon, which issues were, by order of the court, referred to Joseph B. Reynolds, Esq., for examination and report thereon. The referee proceeded to take testimony, but before he had concluded his hearing or made his report, and on the 9th of May, 1895, the town of Rantoul served notice of appeal from the order of reference; and it now makes a motion in this court for an order staying all proceedings in the circuit court and before the referee, pending the appeal, and requiring the transmission to this court of all the original papers in the proceeding. There is one sufficient reason why this motion will not be granted, and that reason is that the order of reference is not an appealable order. The proceeding to incorporate a village is a special proceeding, and not an action. The order of reference is simply an interlocutory order, and the statute governing appeals from orders in special proceedings grants an appeal only from a final order. Rev. St. § 3069, chapter 212, Laws 1895.
A motion is also made by the town of Rantoul for a writ of prohibition, directed to the circuit judge and to the referee aforesaid, prohibiting them from taking any further proceedings in the matter of the application for incorporation, on the ground that the statutes authorizing the incorporation of villages by the circuit court are unconstitutional because they attempt to confer on the court legislative power. The writ of prohibition is issued only in cases of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity. State v. Evans, 88 Wis. 255, 60 N. W....
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...State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 601, 56 S.W. 474; 22 Cyc. 885, and note 20; 32 Cyc. 607, and note 46; Re Schumaker, 90 Wis. 488, 63 N.W. 1050; Dows v. Chicago, 11 Wall. 108, 20 L. ed. Shelton v. Platt, 139 U.S. 596, 35 L. ed. 276, 11 S.Ct. 646; Verdin v. St. Louis, 13......
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