State ex rel. City of Milwaukee v. Ludwig

• Decision Date: 20 March 1900
• Citation: 106 Wis. 226,82 N.W. 158
• Parties: STATE EX REL. CITY OF MILWAUKEE ET AL. v. LUDWIG, JUDGE.
• Court: Wisconsin Supreme Court

106 Wis. 226

82 N.W. 158

STATE EX REL. CITY OF MILWAUKEE ET AL.

v.LUDWIG, JUDGE.

Supreme Court of Wisconsin.

March 20, 1900.

Application for a writ of mandamus by the state, on the relation of the city of Milwaukee and another, against Hon. John C. Ludwig, judge of the superior court for Milwaukee county. Denied.

A few days after the suit of Schwartzburg against the mayor and aldermen of the city of Milwaukee, which is quite fully described in the opinion in the case of State v. Superior Court of Milwaukee Co. (Wis.; decided Feb. 27, 1900) 81 N. W. 1046, there was commenced by the same attorneys a suit in the name of Trentlage against the city of Milwaukee and the Milwaukee Electric Railway & Light Company, which appears to have been instigated by the same persons who were responsible for the Schwartzburg suit, and the complaint in which embodied a large part of the complaint in that action, and was addressed principally towards enjoining the defendant streetrailway company from accepting the ordinance, the passage of which was attempted to be restrained by Schwartzburg. The plaintiff, Trentlage, describes himself as a resident, citizen, elector, and taxpayer in the city of Milwaukee, and as owning two described lots abutting on, and extending to the center of, First avenue, in said city, and declares that he brings this action in his own behalf, and in behalf of all other taxpayers and abutting owners in said city similarly situated. The complaint also, in addition to the allegations as to the passage of the ordinance, adopted largely from the Schwartzburg complaint, alleges that one of the extension lines proposed to be authorized by said ordinance extends along First avenue, and in front of the plaintiff's premises, and that a building in pursuance thereof will involve a widening and grading of that street, and the incumbering of the same, across his premises, with poles, wires, and tracks. The relief demanded was that the railway company be restrained from accepting said ordinance, or doing any act to accomplish such acceptance, or entering upon any part of the premises of the plaintiff, or widening said First avenue, or laying tracks or erecting poles or wires thereon, and further prayed that the grant by the common council be set aside and annulled, as invalid. An injunction pendente lite was secured, covering substantially the ground of the prayer of the complaint, and motion to vacate the same was made. The motions to vacate the injunctions in the Trentlage case and the Schwartzburg case were taken up very much together by the court, and the affidavits and other proceedings in the two cases seem to have been very much interwoven. In the course of those motions the defendants had secured an omnibus injunction restraining the commencing of any other suits or taking of any steps, except to discontinue, in the Trentlage or any other case, until the disposition of the pending motions to vacate the injunctions. As the argument on those motions was approaching conclusion, and on the 29th of January, 1900, while the court was engaged with the hearing of the motion to vacate in the Trentlage case, the plaintiff, Trentlage, attempted to present to the court, by an attorney not of record, a discontinuance of his suit, in the following words: “I, J. G. Trentlage, plaintiff in the above-entitled action, hereby dismiss and discontinue the action above entitled, and consent that an order be entered to that effect without further notice. To the City of Milwaukee and the Milwaukee Electric Railway & Light Company, defendants above mentioned.” The attorney, Mr. Sheridan, of the firm of Sheridan & Wollaeger, also attempted to present a power of attorney authorizing his firm to effect a dismissal of the action, and in terms revoking the authority of the plaintiff's attorneys of record. He also had an affidavit by Trentlage to the general effect that he had been led by misrepresentations to lend his name as plaintiff in that suit. The court declined to permit the pending matters to be interrupted, and did not receive into consideration the proposed discontinuance that day. At the adjournment of court, the plaintiff filed it with the clerk. On the following day, January 30th, the defendants presented the same notice of discontinuance, and asked for an order of dismissal, whereupon Mr. Timlin, attorney of record for the plaintiff, presented a petition for the substitution of the Linden Land Company as plaintiff to continue the suit, accompanied by an affidavit that the Linden Land Company was the owner of lands abutting on Locust street, over which another provision of the ordinance granted franchise to construct tracks, obviously entirely distinct from the line over First avenue. The court, after hearing argument, held that the Trentlage suit had no standing as a taxpayer's suit, but that a cause of action was stated in the interest of himself as an abutting owner upon a street likely to be affected by the building of extensions authorized by the ordinance, and as a suit to restrain injury to the plaintiff in that capacity, and others similarly situated, the action might be sustained. He thereupon granted the application of the plaintiff for discontinuance, to the extent of permitting him to withdraw as plaintiff, but refused to dismiss the suit and made an order continuing the same in existence, and introducing the Linden Land Company as plaintiff therein, on behalf of itself and others similarly situated, with leave within a certain time to either adopt the complaint verified by Trentlage, or to file its own complaint. On relation of the defendants an alternative writ of mandamus was granted, commanding the respondent that immediately upon receipt of the writ he set aside and vacate the above-described order of January 30th, denying the defendants' motion that the Trentlage suit be dismissed, and granting the petition of the Linden Land Company to be joined as plaintiff therein, and that he enter an order, upon the defendants' motion, dismissing the Trentlage action. Due return was made, from which, together with the papers therein referred to, the foregoing facts appear, among others not deemed important.Winkler, Flanders, Smith, Bottum & Vilas, Miller, Noyes, Miller & Wahl, Hugh Ryan, and Chas. Quarles, for relators.

Timlin, Glicksman & Conway and Toohey & Gilmore, for respondent.

DODGE, J. (after stating the facts).

1. In this case we are solicited to exercise that superintending power of the supreme court over inferior courts which was recently discussed and described at length in State v. Johnson, 103 Wis. 591, 79 N. W. 1081, and it is asserted that the conduct of the court below justifies and requires the exercise of either of two phases of that power: First. That to enforce the jurisdiction of inferior courts, either by prohibiting acts outside of their jurisdiction, or commanding them to proceed to its exercise in cases of refusal. Illustrations of this phase are found in State v. Eau Claire Co. Cir. Ct., 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554;State v. Oshkosh, A. & B. W. R. Co., 100 Wis. 538, 77 N. W. 193;State v. O'Neill (Wis.) 80 N. W. 447; and State v. Superior Court of Milwaukee Co. (Wis.; decided Feb. 27, 1900) 81 N. W. 1046. Under this head it is urged that the plaintiff had the absolute right to discontinue his action, and that by the filing of the notice the discontinuance was accomplished, and the case no longer had any existence. Of course, if the case were so out of court and nonexistent, no jurisdiction would exist to make any order or take any step, any more than as if no suit had been commenced; and the attempted retention of and procedure in it would have been a usurpation of power, which, if sufficiently injurious and incapable of other remedy, might invite interference by this court. The first subject of inquiry, then, is whether the suit of Trentlage against the Milwaukee Electric Railway & Light Company was in court--whether it had any existence as an action--on the 30th day of January, after the plaintiff's notice of discontinuance had been delivered to the defendants and filed with the clerk. The negative of this proposition is hardly asserted in the briefs, but was substantially contended for upon the oral argument, and such contention was supported by quotation from certain decisions of this court,--notably, Spaulding v. Railway Co., 12 Wis. 607;Bertschy v. McLeod, 32 Wis. 205;Noble v. Strachan, 32 Wis. 314;Juneau Co. v. Hooker, 67 Wis. 332, 30 N. W. 357. Upon careful examination, none of these cases, except, perhaps, Noble v. Strachan, furnishes support for the position so taken, namely, that the act of the plaintiff in formally declaring his election to discontinue did ex propria vigore terminate the suit and deprive the court of all jurisdiction to take any judicial action with reference thereto. In Spaulding v. Railway Co. an order of discontinuance had in fact been entered. True, it was a mere side-bar order entered ex parte by the clerk, as then authorized; but it was ostensibly, at least, the act of the court, effectuating plaintiff's election to discontinue. This court declined to decide whether even that order sufficed to terminate jurisdiction of the circuit court over the proceedings, but held that, whether so effective or not, the situation constituted no ground for staying another suit commenced by the plaintiffs. In Bertschy v. McLeod the right of a plaintiff to discontinue his action is asserted, but the discontinuance in that case was held to have been accomplished by the order, which, as in the preceding case, was entered ex parte by the clerk, but, of course, was ostensibly judicial action, the same as is a judgment entered on default by the clerk under present practice statutes. In Juneau Co. v. Hooker a notice of discontinuance was served on the defendants, and in open court, though ex parte on application of plaintiff, the court orally...