Milwaukee Light, Heat & Traction Co. v. Ela Co. (In re Milwaukee Light, Heat & Traction Co.)

• Citation: 142 Wis. 424,125 N.W. 903
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 05 April 1910
• Parties: IN RE MILWAUKEE LIGHT, HEAT & TRACTION CO. MILWAUKEE LIGHT, HEAT & TRACTION CO. v. ELA CO.

142 Wis. 424

125 N.W. 903

IN RE MILWAUKEE LIGHT, HEAT & TRACTION CO.MILWAUKEE LIGHT, HEAT & TRACTION CO.

v.ELA CO.

Supreme Court of Wisconsin.

April 5, 1910.

Syllabus by the Judge.

A proceeding under sections 1845 to 1851, St. 1898, to acquire property by the right of eminent domain, is a suit in court, a judicial proceeding from the commencement to the end, except as to an appeal from the award; to that extent, it is in the nature of an ordinary action in court.

A proceeding as aforesaid being a suit commenced by filing the petition, the court has all inherent power in respect thereto which it has, in general, respecting actions or suits in the nature of actions, including power to vacate the award of commissioners therein for improper conduct, or such conduct of parties.

A proceeding, as in No. 1 being a suit in court, and not denominable as an action, or being such because commenceable by the service of a summons, its statutory name is “a special proceeding,” since all civil remedies under the Code are divided into ordinary actions or such proceedings.

Though the Code abolished the common-law distinctions between suits and actions and did away, entirely, with the name “suits” as the name of a class of judicial remedies, the essential character of such remedies has not been changed. A suit now is either an action or a proceeding in the nature of an action in court.

In vacating the award of commissioners in condemnation proceedings for improper conduct on their part, the court acts by virtue of its inherent power which stands by the side of and goes with, or without, the statute, where necessary in the due administration of justice.

The appeal allowable in condemnation proceedings is solely to review the honest judgment of the commissioners respecting compensation for property taken. It does not undo, directly, the wrong committed by improper conduct of commissioners such as would vitiate a verdict in a civil action.

The landowner is entitled to the fair judgment of the commissioners in condemnation proceeding, and to appeal therefrom if dissatisfied.

A motion to set aside the award of commissioners for improper conduct is addressed to the sound discretion of the court, and the result will not be disturbed on appeal unless it clearly appears to have been the result of abuse of discretion or mistake of law.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Condemnation proceedings by the Milwaukee Light, Heat & Traction Company against the Ela Company. From certain orders entered in the proceeding, applicant appeals. Affirmed.

In proceedings to acquire land by the right of eminent domain pursuant to sections 1845 to 1851, St. 1898, after the commissioners filed their award respondent, as one of the property owners affected, to whom was awarded $764, moved the court, on affidavits and due notice to appellant, to set aside the report as to its land because of misconduct of the commissioners. The motion was granted and the entire proceedings of the commissioners as to such land were vacated and they were discharged as disqualified from further serving in the matter. There was proof tending to support the grounds for such order, which were, as follows:

(1) One of the attorneys for appellant, during the proceedings before the commissioners, treated one of them to intoxicating liquor.

(2) The hotel expenses of the commissioners during the proceedings before them were paid by appellant, or one of its attorneys, with its knowledge.

(3) The commissioners having agreed to award respondent $880, and duly prepared their report to that effect and delivered it to one of their number for filing with the clerk of the circuit court and knowledge thereof having come to one of appellant's attorneys, he discussed the same with a member of the commission, whereupon such member caused the report to be reconsidered and the award changed to $764.

(4) One of the commissioners communicated privately with a person not produced or sworn as a witness, from whom such commissioner secretly acquired information as to the value of the land, which he considered.

Upon the motion being brought on to be heard and moving affidavits read and arguments in support of the motion concluded, appellant's attorney requested an adjournment for ten days to enable him to produce counter affidavits. During the argument on such application, such attorney substantially admitted the claim made in the moving affidavits, specified in the court's first and second grounds aforesaid. Whereupon the court decided that, upon such admissions alone, the motion should be granted, and denied the application for a continuance. The order complained of was accordingly made.

The petitioner thereafter moved the court, on notice and affidavits, to vacate the order. The affidavits were to this effect: Neither the petitioner nor any one in its behalf promised to pay the commissioners' hotel expenses, in excess of the amount fixed by the court. The hotel proprietor was not directed by the petitioner, or any one in its behalf, to charge the hotel expenses to it or its attorney. Such attorney, on the hearing to vacate the award, admitted that on one occasion he purchased liquid refreshments for one of the commissioners, and that, possibly, the hotel bills might have been charged to the petitioner, but that they had not been paid; that the commissioners were informed that the hotel bills might be left unpaid until the close of the hearing, when a settlement would be made between them and the petitioner and the balance due them under the order of appointment would be paid; that upon the first hearing the attorney asked for a continuance because he had not sufficient knowledge, presently, to show the facts from petitioner's standpoint, and that the judge denied the application upon the ground that his admissions were sufficient to warrant granting the motion.

The commissioners acted upon their own judgment in making the award. The amount agreed upon at first was $880, but upon further consideration it was reduced to the smaller amount, which was just. Petitioner's attorney at no time stated to the commissioners, or either of them, that $880 was too high, or what sum they should allow. He did, in the barroom of the hotel, openly entertain one of the commissioners with others. The hotel expense bills of the commissioners were charged to them respectively. The landlord was not informed that the petitioner would be responsible therefor.

The motion to set aside the order vacating the award was denied, it being recited in the decision that such motion was based upon the theory that the court was without jurisdiction to make the order sought to be vacated; that subsequently an appeal from the order of vacation was taken; that later, and some seven months after the motion was made and six months after the date of the appeal, such motion was heard, whereupon respondent raised the point that the appeal superseded the motion, filing a brief to support such contention, the petitioner declined to reply thereto, and thereupon the court ruled in favor of respondent, and dismissed the motion.

The petitioner separately appealed from both orders.Louis H. Rohr (Clarke M. Rosecrantz, of counsel), for appellant.

Gilbert, Jackson & Elg, for respondent.

MARSHALL, J. (after stating the facts as above).

The most important proposition submitted for discussion and decision is, in condemnation proceedings under sections 1845 to 1851, St. 1898, does the court have jurisdiction to vacate the award of the commissioners on account of their prejudicially improper conduct and discharge them as incompetent to further proceed? The proposition must be examined from the viewpoint of the nature of the proceedings, the express authority of the court therein and its inherent power as well.

Section 1846, St. 1898, provides for the initiation of a condemnation proceeding by filing a petition in the office of the clerk of the circuit court having jurisdiction of the matter, praying for the appointment of commissioners by such court, or the judge thereof. The nature of the proceeding is indicated by the declaration in such section that “the filing of such petition shall be the commencement of a suit in said court.” Being a “suit” in court from its initiation, the proceeding must, necessarily, continue to be a judicial proceeding in the nature of a suit in court until its termination by the filing of the award, or turned into an action in court by appeal from the award as provided in section 1849. Such section, in effect, provides that the appeal, as regards the subject involved, shall be considered a distinct proceeding in court with the characteristics of an action at law. So the proceeding must be in the nature of a judicial controversy in court of some sort from the beginning to the end. It is a judicial remedy, within the meaning of section 2594, St. 1898. In the broad sense, it is an action from the beginning, in that it is a judicial remedy for the enforcement or protection of a right, though it is not such, in the strict statutory sense, because it is not an “ordinary action” for that purpose commenced by service of a summons under section 2629, St. 1898. Only such are actions under section 2595, St. 1898. Not being, strictly speaking, an action under the Code and yet a judicial remedy denominated a suit, which in the broad sense applies to any proceeding in a court of justice by which a party pursues the remedy which the law affords for litigating a subject of controversy between adverse parties (Kohl v. United States, 91 U. S. 367, 375, 23 L. Ed. 449;Kuhl v. N. W. R. Co., 101 Wis. 42, 77 N. W. 155;State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700), its statutory name must be a special proceeding, under section 2596, as every civil judicial remedy in a court of justice under the Code must have either the statutory name of a “civil action” or a “special...