State ex rel. Casper v. Board of Trustees of Wisconsin Retirement Fund

• Decision Date: 01 March 1966
• Citation: 30 Wis.2d 170,140 N.W.2d 301
• Parties: STATE ex rel. Elizabeth S. CASPER and Daniel D. Sullivan, Respondents, v. BOARD OF TRUSTEES OF the WISCONSIN RETIREMENT FUND, Appellant.
• Court: Wisconsin Supreme Court

Page 301

140 N.W.2d 301

30 Wis.2d 170

STATE ex rel. Elizabeth S. CASPER and Daniel D. Sullivan, Respondents, v. BOARD OF TRUSTEES OF the WISCONSIN RETIREMENT FUND, Appellant.

Supreme Court of Wisconsin.

March 1, 1966.

Frank B. Meinecke, Milwaukee, E. H. Snyder, Milwaukee, of counsel, for respondents.

HALLOWS, Justice.

We recently said in Firement's Annuity and Benefit Fund v. Krueger (1964), 24 Wis.2d 200, 128 N.W.2d 670, that review proceedings where certiorari is permitted must be commenced within six months from the entry of the order sought to be reviewed. This was said in reference to cases where no time was prescribed by the ordinance or statute creating the right of review. In that case and in some prior cases, this court considered the timeliness of the review to be governed by the doctrine of laches. McClutchey v. Milwaukee County (1941), 23. Wis. 139, 300 N.W. 224, 917, 137 A.L.R. 628; Wurth v. Affeldt (1953), 265 Wis. 119, 60 N.W.2d 708, 40 A.L.R.2d 1376. In other cases this court based its decision of timeliness upon alalogy to the right to appeal to this court in civil cases under sec. 274.01(1), Stats. The State exrel. Dalrymple v. Milwaukee County (1883), 58 Wis. 4, 16 N.W. 21; Talbot v. White (1853), 1 Wis. 385, * 444.

In Firemen's, which apparently was not called to the trial court's attention, we adopted six months as the ultimate period beyond which an appeal by certiorari connot be taken when no time limit is prescribed by the law creating that right. This rule rests on the principle that when a statute does not prescribe the time within which the right to review must be exercised, such right must be exercised within a reasonable time. Since the time set by sec. 274.01(1), Stats., is six months for appeals for such a case from the circuit court to this court, such time is reasonable within which the review must be taken to the circuit court. This view is akin to the action of courts of equity in holding that the period of the statute of limitations applicable to a legal right is to be considered laches applicable to the equitable right without injury into any change of circumstances.

Although what we said in Firemen's was obiter dictum because the decision expressly rested on laches, we now affirm such statement as a holding, but we point out the rule has no application where the statute provides a time limit for review or appeal by certiorari, such as sec. 70.47(9a), Stats. [90 days, board of review, tax assessment], sec. 62.23(7)(e) 10 and 11, Stats. [30 days, board of appeals, from a regulation], sec. 60.05(4), Stats. [one year to review validity of proceedings to constitute or divide a town].

The review in the instant case was taken under sec. 66.918(3), ¹ which does not provide any time period within which the petition for the writ of certiorari must be filed and therefore the petition should have been made within six months of the determination of the Board. Since the petition was filed fourteen days beyond that time, the writ of certiorari would have been superseded or quashed upon a motion made prior to the return or after if no other motion had previously been made. We do not consider the timeliness of the petition for the writ to be jurisdictional, nor do we find in the record any motion to dismiss on the ground of untimeliness. Apparently this question was raised at the time of the oral argument on the motion to quash for misdirection long after the motion to change the venue was made any the return to the writ filed. We think defenses should not be put in seriatim and this objection came too late. The defense of untimeliness was waived and in addition was not properly raised.

We point out again as we did in Lakeshore Development Corp. v. Plan Comm. (1961), 12 Wis.2d 560, 107 N.W.2d 590, that a review by a writ of certiorari has different characteristics than the common-law writ of certiorari. The latter writ is granted in the discretion of the court, Consolidated Apparel Co. v. Common Council (1961), 14 Wis.2d 31, 109 N.W.2d 486, while the statutory review by certiorari is a matter of right and a proceeding which is much enlarged in scope because it inquires into not only the jurisdiction of the board or body making the determination but also the merits of the determination. In both instances, however, the return does not serve the function of an answer and the issues on review, whether related to the merits, jurisdiction, or procedure, are created by motions to supersede or to quash, stating the grounds therefore. For some purposes including the right to appeal, such motions are treated as if they were demurrers. See Lakeshore Development Corp. v. Plan Comm., supra; Swan Boulevard Development Corp. v. Cybulski (1961), 14 Wis.2d 169, 109 N.W.2d 671; The State ex rel. Clancy and another v. McGovern and others (1898), 100 Wis. 666, 76 N.W. 593; and State ex rel. Bollenbeck v. Village of Shorewood Hills (1941), 237 Wis. 501, 297 N.W. 568.

The argument of the claimants that the Fund is in default because because no answer or demurrer has been interposed is without merit. The practice applicable to ordinary civil actions is not applicable to either common-law or statutory writs of certiorari.

It is argued the trial court was in error in changing the caption of the case in respect to the respondent from the Wisconsin Retirement Fund, a trust, to the Board of Trustees of the Wisconsin Retirement Fund. The question is whether the writ was misdirected or whether the respondent below was misnamed. The cases of misdirection are distinguishable from the facts of this case. Where a writ has been held to be misdirected, it was directed to a board or person which had the legal capacity to be sued but which did not make the determination sought to be reviewed. Thus, in State ex rel. Tibbits v. City of Milwaukee (1893), 86 Wis. 376, 57...