State ex rel. Dalrymple v. Milwaukee Co.

• Decision Date: 31 May 1883
• Citation: 16 N.W. 21,58 Wis. 4
• Parties: STATE OF WISCONSIN EX REL. DALRYMPLE v. MILWAUKEE CO.
• Court: Wisconsin Supreme Court

58 Wis. 4

16 N.W. 21

STATE OF WISCONSIN EX REL. DALRYMPLE

v.MILWAUKEE CO.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from circuit court, Milwaukee county.Markham & Noyes, for appellant, State of Wisconsin ex rel. W. F. Dalrymple.

W. C. Williams, for respondent, Milwaukee County.

TAYLOR, J.

In this case a common-law writ of certiorari was issued out of the circuit court of Milwaukee county, directed to said respondent county, for the purpose of reviewing the proceedings of the county board of supervisors of said county in discontinuing a certain street in the city of Milwaukee. Application for the writ was made upon the affidavit of the relator, setting out the said proceedings, and stating the irregularities in the same which he deemed fatal to their validity. The writ was duly allowed by the circuit judge. In obedience to the command of the writ, the said respondent, through its county clerk, made return to said writ, and on such return set out all the proceedings had and taken by the said county board in vacating said street, so far as there was any record of the same. After such return was made the matter was brought to a hearing before said circuit court upon all records, papers, and proceedings had in the case, and thereupon the said circuit court made the following order and judgment therein: “It is hereby ordered, adjudged, and decreed, and the court does hereby order, adjudge, and decree, that the writ of certiorari returned herein be and the same hereby is superseded and set aside, with costs against the relator; all in the said writ to the contrary notwithstanding.” From this order and judgment the relator appeals to this court.

The counsel for the appellant claim that it was error for the circuit court to supersede and set aside the writ of certiorari after a return had been made by the county according to the command of the writ.

This objection to the order of the circuit court seems to be well taken, as this court has decided in the following cases: McNamara v. Spees, 25 Wis. 539;Morse v. Spees, Id. 543; Owens v. State, 27 Wis. 456. The case having been heard upon its merits after a return to the writ, it was irregular to supersede or set aside the same. If the respondent desires to supersede the writ, the regular way to affect that purpose is to move the court for such order before the return is made; and if he does not desire to have the court pass upon the merits of the proceeding after the return to the writ is made, he may then move to quash the writ upon any ground which shows that the writ ought not to have been issued, or that it was misdirected, or bad in point of law. A motion to supersede the writ may be based upon the same grounds as a motion to quash it. The distinction made by the courts is that a motion to quash can only be made after the writ is returned to the court in which the motion is made, but the motion to supersede the writ may be made before it is returned to the court. Ball v. Warren, 16 How. Pr. 379;Ferguson v. Jones, 12 Wend. 241; 1 Tidd, Pr. 335; 2 Burr. Pr. 250; Milwaukee Iron Co. v. Schubel, 29 Wis. 444;Wardsworth v. Sibley, 38 Wis. 484; 2 Atk. 318; Morse v. Spees, 25 Wis. 543;McNamara v. Spees, Id. 539; State v. Fond du Lac, 35 Wis. 37-46;Hauser v. State, 33 Wis. 678-683.

The counsel for the respondent has cited several cases in other courts which would sanction the order made in this case, after a hearing upon the merits; but, notwithstanding these decisions, we think it better to adhere to the rule laid down by this court in the cases in 25 and 27 Wis., above cited, that it is irregular to quash or supersede the writ after a hearing upon the merits after the return to the writ. If the respondent is of the opinion that the writ was issued when it ought not to have been, or that it was not properly directed, or was defective in some substantial matter, and he does not desire to have the proceedings reviewed upon their merits, he should regularly move the court to quash the writ, and not proceed to a hearing upon the merits until such motion is disposed of. For the irregularity above mentioned, the order of the circuit court must be reversed. But as the whole record is before us we consider it our duty to look into the same and determine what judgment the court ought to render on the merits. This is the course generally adopted by this court in like cases. See McNamara v. Spees, 25 Wis. 539;Owens v. State, 27 Wis. 456.

The case of Morse v. Spees, 25 Wis. 543, is in conflict with the rule stated, but does not seem to have been followed by this court in any subsequent case; and we adopt the rule in the cases first cited as the one best calculated to further the ends of justice and prevent unnecessary litigation. The only error in the proceeding to vacate the streets, complained of by the appellant, is that the notice of the application to vacate the streets was not posted for the length of time required by the statute. The notice published and posted stated that the application would be made to the county board of supervisors on the twenty-fifth of March, and it is alleged that the application was in fact made on the fifth of March. The law under which the board of supervisors acted in vacating the streets mentioned in the relator's affidavit, is subdivision 8 of section 28, c. 13, Rev. St. 1858, as amended by chapter 85, Laws 1866, (1 Tay. St. 299.) The section confers certain extraordinary powers on the board. Subdivision 8 reads as follows: “To alter or vacate any city, town, or village plat, or any part thereof, or any street or alley therein, surveyed and recorded in any such county, upon the petition of the proprietor or proprietors of any such city, town, or village, or any part thereof, or lot therein, and upon such notice by such petitioner or petitioners as is required in vacating town, city, or village plats in the circuit court.

The notice to be given when application is made to the circuit court to vacate a town, city, or village plat is prescribed by section 13, c. 47, Rev. St. 1858, as amended by section 2, c. 158, Laws 1859, (1 Tay. St. 776,) and is as follows: “Such proprietor or proprietors shall give notice in writing of such intended application, in at least two of the most public places in the county wherein such town, city, or village may be situated, by posting notice of such application, and insert a copy thereof in a newspaper printed or in circulation in said county at least 60 days prior to the sitting of the court to which he or they intend to make application.”

It will be seen that the statute requires the applicant to the board of supervisors to give such notice of his application to vacate a street as is required in vacating town, city, or village plats in the circuit courts, and in such cases the applicant is required to give notice 60 days before the sitting of the court...