McManus, In re

• Decision Date: 04 April 1961
• Citation: 13 Wis.2d 228,108 N.W.2d 648
• Parties: In re Affidavit of Jack McMANUS for issuance of a Writ of Prohibition against Hon. William Sachtjen, etc. Roger Charles DRUGSVOLD et al., Appellants, v. SMALL CLAIMS COURT FOR DANE COUNTY and Hon. William Sachtjen, Judge, Respondents.
• Court: Wisconsin Supreme Court

Page 648

108 N.W.2d 648

13 Wis.2d 228

In re Affidavit of Jack McMANUS for issuance of a Writ of Prohibition against Hon. William Sachtjen, etc Roger Charles DRUGSVOLD et al., Appellants, v. SMALL CLAIMS COURT FOR DANE COUNTY and Hon. William Sachtjen, Judge, Respondents.

Supreme Court of Wisconsin.

April 4, 1961.

Jack McManus, Madison, for appellant.

Douglas Nelson, Madison, for respondent.

HALLOWS, Justice.

The appellant contends the circuit court, under its supervisory control powers, may properly issue a writ of prohibition to restrain an inferior court from exercising jurisdiction it does not have and the Small Claims Court was without jurisdiction because the Madison Credit Bureau was guilty of unauthorized practice of the law. There can be no question of the power of the circuit court in a proper case to issue a writ of prohibition in the exercise of its superintending control of an inferior court. Such power was granted by art. VII, sec. 8, Wis.Const. This court has often discussed the requirements and conditions of the exercise of such power and when writs may be granted by this court and the rules are applicable to circuit courts. State ex rel. Reynolds v. County Court, 1960, 11 Wis.2d 560, 105 N.W.2d 876. State ex rel. Tewalt v. Pollard, 1901, 112 Wis. 232, 87 N.W. 1107; State ex rel. Gaudynski v. Pruss, 1940, 233 Wis. 600, 290 N.W. 289; In re Weaver, 1916, 162 Wis. 499, 156 N.W. 459.

Traditionally, the writ of prohibition would lie to keep an inferior court within its jurisdiction but it would not be issued when there is an adequate remedy by appeal or otherwise. State ex rel. Fieldhack v. Gregorski, 1956, 272 Wis. 570, 76 N.W.2d 382; State ex rel. Joyce v. Farr, 1940, 236 Wis. 323, 295 N.W. 21; State ex rel. Fourth National Bank of Philadelphia v. Johnson, 1899, 103 Wis. 591, 79 N.W. 1081, 51 L.R.A. 33. Generally if the inferior court is acting in the proper exercise of its power and within its jurisdiction even though the court might have committed judicial error, the writ of prohibition would not lie. 42 Am.Jur. Prohibition, p. 141, sec. 6. State ex rel. Kowaleski v. District Court of Milwaukee County, 1949, 254 Wis. 363, 36 N.W.2d 419; In re Pierce-Arrow Motor Car Co., 1910, 143 Wis. 282, 127 N.W. 998. However, the strictness of the rule has been relaxed and the writ of prohibition may now be invoked in cases of a nonjurisdictional error when the appeal may come too late for effective redress, or be inadequate and there is a need for such intervention to avoid grave hardship or a complete denial of the rights of a litigant. State ex rel. Kiekhaefer v. Anderson, 1958, 4 Wis.2d 485, 90 N.W.2d 790; State ex rel. Ampco Metal v. O'Neill, 1956, 273 Wis. 530, 78 N.W.2d 921, 62 A.L.R.2d 501.

The petition fails to allege any facts which disclose appellant Drugsvold would suffer great hardship if he is required to put in his answer. The petition is grounded solely on jurisdictional error. The question is whether the Small Claims Court had jurisdiction of the Drugsvold case. From the record, it would appear the Madison Credit Bureau made the complaint or filled out the complaint form used by the Small Claims Court and had the clerk mail the summons under the name of its attorney, and the employee of the Madison Credit Bureau appeared in court for the plaintiff to join issue and would have taken a judgment against the defendant if he had not appeared. True, some evidence was taken by the circuit court dehors the record upon the hearing of the writ, but this was within the court's power, when it is exercising its constitutional power of supervision and is using the writ of prohibition as a means to that end. State ex rel. Gaudynski v. Pruss, supra. However, assuming the unauthorized practice of law by the Madison Credit Bureau in this case, it does not follow the Small Claims Court lost jurisdiction or did not acquire jurisdiction over the subject matter or over the person of the defendant as contended for by the appellants.

The commencement of the suit was not void. The plaintiff in the action was the Quisling Clinic. It was the owner of the cause of action and had legal capacity to sue. The record does not disclose an assignment by purchase by the Madison Credit Bureau of the cause of action. Quisling Clinic authorized an attorney to institute suit. The defendant had been served by mail by the clerk, which is permitted under the Small Claims Court practice, sec. 254.11(2), Stats., and he appeared generally in court. The making of the complaint and the issuance of the summons in the manner complained of did not render the action void or prevent the...