Martin v. State
| Citation | 295 N.W. 681,236 Wis. 571 |
| Parties | MARTIN et al. v. STATE. |
| Decision Date | 07 January 1941 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to review an order of the Circuit Court for Waukesha County; S. E. Smalley, Judge.
A. Joseph Martin and others were convicted of criminal conspiracy to violate the gaming laws, and, to review an order denying a motion to enjoin the clerk of the circuit court of Waukesha county from issuing certificates of commitment and to enjoin the sheriff of Waukesha county from imprisoning them or interfering with their liberties, A. Joseph Martin and others bring error, and the Attorney General moves for dismissal of the writ of error.-[By Editorial Staff.]
Motion granted and writ dismissed.
Writ of error, issued May 6, 1940, to review an order of the circuit court denying a motion to enjoin the clerk of the circuit court from issuing certificates of commitment and to enjoin the sheriff from imprisoning or interfering with the liberties of plaintiffs in error.
The plaintiffs in error were convicted in the circuit court of Waukesha County July 19, 1938, of the offense of criminal conspiracy to violate the gaming laws. Upon such conviction they were sentenced to terms of imprisonment in the house of correction for Milwaukee County for a period of six months. The judgment was brought to this court and affirmed on November 9, 1938. State v. Martin, 229 Wis. 644, 282 N.W. 107. The record was returned to the circuit court, the remittitur being filed in Waukesha on February 1, 1939. It appears that upon application of the state after the judgment of conviction and its affirmance by this court, the plaintiffs in error were required to appear from time to time before the circuit court, and that as a matter of convenience the state procured further orders staying the execution of the sentences. The different stays in all amounting to a period of time considerably in excess of six months. On March 14, 1940, the plaintiffs in error procured an order directing the clerk of the circuit court and the sheriff of Waukesha County to show cause why the clerk should not be enjoined from issuing any certificates of conviction against the plaintiffs in error, and restraining him from so doing, and why the sheriff should not be enjoined from interfering with the personal liberty of plaintiffs in error, and restraining him from so doing. On May 4, 1940, the trial court made its formal order denying the prayer of the petition. Plaintiffs in error then sued out the writ of error. The Attorney General now moves for the dismissal of the writ.
Corrigan & Backus, of Milwaukee, for plaintiffs in error.
John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Scott K. Lowry, Dist. Atty., of Waukesha, and Winfred C. Zabel, Sp. Asst. Dist. Atty., both of Milwaukee, for defendant in error.
One of the grounds of the Attorney General's motion is that a writ of error does not lie to review the order of the trial court in which it denied the motion of plaintiffs in error, hereafter referred to as defendants, for an injunction against the clerk of the circuit court and the sheriff because it is not in the nature of a final judgment. When this case was reached upon the assignment, the court was of the opinion that the writ did not lie and that the court was powerless to review the proceedings had on the petition of the defendants after judgment, and the writ was ordered dismissed. A motion for a rehearing was immediately made. Because of the serious question involved, to wit whether the defendants ought to be imprisoned if they have the right to have the time of the stays considered as service of their sentences, we have given the matter further consideration and conclude that it was proper to dismiss the writ of error on the ground suggested by the Attorney General.
[1] A writ of error as a reviewing device has been preserved by our state constitution. Art. I, sec. 21. While frequently...
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