State ex rel. Atkinson v. McDonald

• Decision Date: 30 October 1900
• Citation: 108 Wis. 8,84 N.W. 171
• Parties: STATE EX REL. ATKINSON v. MCDONALD.
• Court: Wisconsin Supreme Court

108 Wis. 8

84 N.W. 171

STATE EX REL. ATKINSON

v.MCDONALD.

Supreme Court of Wisconsin.

Oct. 30, 1900.

Syllabus by the Judge.

November 18, 1898, appellant became a citizen of the United States by the judgment of a district court of the state of Minnesota rendered on evidence as to his residence in that state to the effect that he had resided there continuously for the year immediately preceding his application, and in September, 1899, pursuant to an appointment to the office of lumber inspector of the Thirteenth district of Wisconsin, then held by the relator, he formally qualified therefor, and thereupon demanded possession of the books and papers of the office, which demand was complied with, the relator supposing appellant to be eligible to the office. Thereafter the relator was informed that appellant was not an elector of the state of Wisconsin, and thereupon he commenced this action to regain possession of the office upon the ground that he was entitled thereto till a person should be appointed and should qualify who was eligible to the position. The cause was tried by the court with a jury. The record of the proceedings of the Minnesota court was received in evidence against a general objection, and was held conclusive upon appellant on the question of his eligibility to the office. Held:

1. Proceedings to try the title to an office constitute a civil action in which controverted questions of fact are triable by a jury as a matter of right.

2. The record of the naturalization proceedings was properly received in evidence, (a) as an admission against interest, (b) as a former adjudication as to a material fact, hence binding upon the appellant.

3. The naturalization proceedings were in effect an action in rem and the result binding upon the world not only as to the ultimate fact established but the facts upon which such result was based.

4. It appearing conclusively that the adjudication of citizenship by the Minnesota court, as to residence in the state of Minnesota, was based wholly on proof of a year's residence there immediately preceding the making of the application for citizenship, the truth thereof was vital to the conclusion reached, and the decision on that point necessarily became a part of the judgment and is as binding upon appellant as the judgment itself, regardless of whether the federal statute calls for the particular year's residence covered by the proof or not.

5. The conclusiveness of the judgment of the Minnesota court is ruled by the doctrine regarding judgments in rem and the rule that the res adjudicata, as to a final judicial determination, extends to every proposition assumed or decided by the court upon which the final conclusion is based.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by the state, on the relation of Timothy Atkinson, against J. P. McDonald. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to try the title to the office of lumber inspector for the Thirteenth district of the state of Wisconsin. The complaint is to the following effect: The relator was appointed lumber inspector for said district in April, 1897. He immediately qualified for the position according to law, entered upon the performance of its duties, and thereafter continued in such performance till interrupted by the circumstances hereafter stated. In September, 1899, defendant was appointed relator's successor, and, having gone through with the form of qualifying for the office, demanded the books and papers appertaining thereto, whereupon the relator surrendered the same, supposing defendant was eligible for the position. Thereafter the relator learned, as the fact was, that defendant was not an elector of the state of Wisconsin when he received his appointment and took possession of the office, but was an elector of the state of Minnesota. Thereupon the relator demanded of defendant a surrender of the possession of the office and of the books and papers belonging thereto, which demand was refused.

Defendant answered, joining issue with the allegations to the effect that he was not eligible to the office of lumber inspector. The cause was tried before a jury. Plaintiff introduced in evidence a duly-authenticated record of proceedings in the district court for the Eleventh judicial district of the state of Minnesota, had November 18, 1898, admitting defendant to United States citizenship. Such record is to the effect that defendant applied for admission to United States citizenship, and that the application was granted on his affidavit, corroborated by the affidavits of two other persons, that for five years prior to the application defendant had resided in the United States, and that, during the year immediately preceding such application, he had resided continuously in the state of Minnesota. Defendant testified, in substance, that he came to the United States to reside permanently when he was about 21 years of age; that he resided first in Michigan, then in Minnesota, then in Wisconsin; that he was a deputy under the surveyor general for the Fifth district of Minnesota in the winter of 1897-98 and voted in Minnesota once while a resident there; that he came to the city of Superior in the early part of 1898 and made his home at the Northern Hotel; that all of his personal belongings were kept there and that it was his home till shortly after the commencement of this action, when he removed to the Wemyss Block in said city; that he was away from Superior occasionally, including a two-months visit in the East, but that his home remained as stated; that his absences were temporary and with the intention of returning; that he was an unmarried man; that he came to Superior and remained as stated, with the intention of making that his home, and that such intention has not changed; that he did not read the affidavits used on his application for citizenship, did not know what they contained, and that they were not true; that he made his declaration of intention to become a citizen of the United States in 1893; that he voted at the state election in 1898 and at the preceding municipal election; that his intention has been, at all times since the spring of 1898, to reside in Wisconsin. On the subject of actual residence in Wisconsin defendant was corroborated by several witnesses.

At the close of the evidence both sides moved the court for the direction of a verdict. Plaintiff's motion was granted and defendant duly excepted. Thereafter defendant moved the court to set aside the verdict and grant a new trial, which was denied, due exception being taken to the ruling. Judgment was rendered against defendant and he appealed.

Ross, Dwyer & Hile, for appellant.

V. Linley, for respondent.

MARSHALL, J. (after stating the facts).

It is evident that the verdict was directed in plaintiff's favor either on the theory that the record of defendant's application for citizenship was conclusive against him as to his place of residence during the time covered by such record, or that the verdict of the jury, in any event, would be only advisory to the court. Both theories are contended for in support of the judgment.

This is a civil action under section 3463, Rev. St., and governed thereby and by the established principles respecting such actions. We need not discuss the question of whether, in quo warranto proceedings at common law, contested questions of fact were triable by a jury as a matter of right, or whether the authorities are uniform as regards such being a matter of right under the reformed procedure in code states where there is no express constitutional or statutory regulation of the subject. There is some conflict of decisions in regard to the matter. 17 Enc. Pl. & Prac. p. 473. It is said that it appears to be the general...