Johnson v. City of Minneapolis

• Decision Date: 20 December 1940
• Docket Number: No. 32376.,32376.
• Citation: 295 N.W. 406,209 Minn. 67
• Parties: JOHNSON v. CITY OF MINNEAPOLIS et al.
• Court: Minnesota Supreme Court

295 N.W. 406

209 Minn. 67

JOHNSON v. CITY OF MINNEAPOLIS et al.

No. 32376.

Supreme Court of Minnesota.

December 20, 1940.

Appeal from District Court, Hennepin County; Arthur W. Selover and Paul S. Carroll, Judges.

Charles A. Johnson was demoted from position of Superintendent of Fire Prevention Bureau of the Minneapolis Fire Department to the rank of captain and obtained certiorari from the district court to review the decision. The district court affirmed the action of the Civil Service Commission, Arthur W. Selover, Judge. From an order denying the motion by Charles A. Johnson for an order requiring the clerk of the district court to enter a formal judgment in certiorari proceeding, Paul S. Carroll, Judge, Charles A. Johnson appeals.

Order affirmed.

Franklin Petri, of Minneapolis (Stinchfield, Mackall, Crounse, McNally & Moore, of Minneapolis, of counsel), for appellant.

R. S. Wiggin, City Atty., and Charles A. Sawyer, Asst. City Atty., both of Minneapolis, for respondents.

JULIUS J. OLSON, Justice.

The appeal is from an order denying appellant's motion for an order "requiring the clerk" of the district court "to enter a judgment" upon an order theretofore made, or, if that he denied, then that said order be amended by adding "the words: `Let judgment be entered accordingly.'" We shall refer to the parties as plaintiff and defendants.

Plaintiff, a member of the Minneapolis fire department and occupying the position of superintendent of the fire prevention bureau, was, after hearing before the civil service commission, demoted to the rank of captain. Dissatisfied, he obtained certiorari from the district court to review that decision, and it was so reviewed. On March 3, 1939, the court "affirmed the action" of the commission. Thus the matter rested until July 12, 1939, when the motion, denial of which is the basis of this appeal, came on for hearing. It was denied on October 23. Then came this appeal.

The only conceivable reason for this appeal is that by having a judgment entered plaintiff will gain at least a six months' respite within which to seek a review here of what has happened below. His claim is that he has a right to demand that a formal judgment be entered in the certiorari proceeding. He failed to heed the provisions of that part of 2 Mason Minn.St.1927, § 9497, limiting appeals from final orders to 30 days after written notice thereof. (Under that section an appeal to this court "may be taken within six months" after entry of judgment.) So he now thinks that § 9498 will afford him the desired opportunity, since "the aggrieved party" may appeal "from a judgment in an action commenced in the district court, or brought there from another court."

As we have seen, the order in certiorari "affirmed" the action of the civil service commission. Nothing was said about the entry of judgment, the court evidently considering it to be, as contended by defendants, a final order in a special proceeding. In this we think the court was right for reasons now to be stated.

1. Certiorari as used in this state is not the common-law writ, "but rather a writ in the nature of certiorari." Hence, it has been held in numerous cases here and elsewhere that "certiorari is employed strictly as in the nature of a writ of error or an appeal." Its "legitimate office * * * is to review and correct decisions and final determinations of inferior tribunals." When a return is made to the writ "the inquiry is whether or not there has been error, and, upon answer to this question, the court above determines whether to affirm or reverse, just as is done in cases of writs of error or of appeals. * * * It is a writ of review of acts which are judicial or quasi judicial in their nature. * * * Its office is not to restrain or prohibit, but to annul. It is not original process." 1 Dunnell, Minn.Dig. (2d Ed. & 1937 Supp.) § 1391, and cases cited under notes 60, 61, 64, 66 and 67. In State ex rel. Nordin v. Probate Court, 200 Minn. 167, 169, 273 N.W. 636, 637, we said: "The `writ of certiorari' under our practice is a writ of review in the nature of a writ of error or an appeal. * * * the writ `is employed strictly as in the nature of a writ of error,' and `the office of the writ is simply to review and correct decisions and determinations already made.'"

2. Under our decisions, to a few of which we shall make reference, it seems clear that the time within which to appeal, even if judgment be entered in cases of this nature, is limited to 30 days after service of written notice of the order upon which such judgment is based.

Thus, in McNamara v. Minnesota Cent. Ry. Co., 12 Minn. 388, 12 Gil. 269, 278, it was held that "a judgment in a special proceeding is clearly not included in the judgments made appealable by this chapter." In Koochiching Co. v. Franson, 91 Minn. 404, 405, 98 N.W. 98, 99, it was held that a proceeding to vacate a town plat is a special proceeding and the order vacating it is "in the nature of a final order, for it puts an end to the proceedings, affects...