State ex rel. Green Bay & M. R. Co. v. Jennings

• Decision Date: 21 November 1882
• Citation: 56 Wis. 113,14 N.W. 28
• Court: Wisconsin Supreme Court
• Parties: STATE OF WISCONSIN EX REL. GREEN BAY & M. R. CO. v. JENNINGS, CHAIRMAN, ETC., AND OTHERS. JENNINGS, CHAIRMAN, ETC., AND OTHERS v. STATE OF WISCONSIN EX REL. GREEN BAY & M. R. CO.

56 Wis. 113

14 N.W. 28

STATE OF WISCONSIN EX REL. GREEN BAY & M. R. CO.

v.JENNINGS, CHAIRMAN, ETC., AND OTHERS.

JENNINGS, CHAIRMAN, ETC., AND OTHERS

v.STATE OF WISCONSIN EX REL. GREEN BAY & M. R. CO.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Waupaca county.

This case was commenced in 1877. It was here on a former appeal from an order overruling a demurrer to the relation and a motion to quash the alternative writ of mandamus. 48 Wis. 549; [S. C. 4 N. W. REP. 641.] The defendants having thereafter made return to the writ, the relator moved to strike out certain designated portions of the same. The circuit court granted the motion as to certain portions of the return, and denied it as to certain other portions. The defendants appeal from the portion of the order striking out certain portions of the return, and the relator appeals from that portion of the order refusing to strike out another certain portion of the return, and both appeals were argued together.Hastings & Greene, for relator.

Myron Reed, E. L. Browne, and J. E. Gregory, for defendants, David Jennings and others

CASSODAY, J.

Are the rules and practice as to pleadings in ordinary actions applicable in cases of mandamus? The provisions of the present statute entitled “Proceedings in Civil Actions in Courts of Record,” relate not only to “actions,” but also to “ proceedings in the circuit courts.” Section 2593. Section 2600, Rev. St., provides that “the distinctions between actions at law and suits in equity, and the forms of all such actions and suits, have been abolished, and there is in this state but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which is denominated a civil action.” Id.; section 8, c. 122, Rev. St. 1858. That title also includes chapter 121, Rev. St., which prescribes “the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are determined,” (section 2644, Rev. St.,) and gives the requisites of the only pleadings provided for, to-wit, a complaint, answer, reply, and demurrer. The statutes also provide, in effect, that whenever any writ of mandamus shall be issued, the person, body, or tribunal to whom the same shall be directed and delivered shall make return, and for neglect so to do shall be proceeded against as for a contempt. Section 3450, Rev. St. And whenever a return shall be made to any such writ, the person prosecuting the same may demur or answer all or any of the material facts contained in the same return; and the like proceedings shall be had thereon, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action for a false return. Section 345, Rev. St. But, notwithstanding the provisions of the statutes referred to, it was contended by the learned counsel for the relator that proceedings by mandamus are not affected by the Code, but are regulated by the rules of pleading and practice prevailing at common law, and he cites in support of his position People v. Ulster Co. 32 Barb. 477.

In that case the defendants demurred to the reply on plea of the relator to a portion of the return, and the court directed judgment for the defendants on the demurrer, with leave to the plaintiffs to amend this plea on payment of costs. That decision, however, was reversed in the court of appeals (34 N. Y. 268) on the ground that the particular paragraph of the answer to which the plea or reply was made, was immaterial, impertinent, and frivolous. Page 269.

In People v. Baker, 35 Barb., 105, it was held that “the return must be good, tested by the ordinary rules of pleading, both in form and substance, and stands as the second pleading in the case.” Some of the New York cases have regarded proceedings by mandamus as an action for the purpose of taxing costs. People v. Colborne, 20 How. Pr. 378;People v. Lumley, 28 How. Pr. 172; S. C. Id. 470.

In the last case cited it was said at general term by MASON, J., giving the opinion of the court, that “if any question can be regarded as settled with us in this district, it is that a proceeding upon mandamus, where there has been a return, and the suit has gone to pleadings, and a trial thereon has been had, is not a special proceeding under the Code, but an action.” 28 How. Pr. 172. And on appeal from the order the court of appeals, per DAVIS, J., said: “It is not an order which in effect determines the action and prevents a judgment from which an appeal might be taken to this court. It is not a final order made in a special proceeding, for this is an action.” 28 How. Pr. 471.

The other authorities cited from New York by counsel for the relator are to the effect that immaterial matter stated in the return may be stricken out on motion, or “rejected as surplusage.” But the New York cases are not altogether applicable, for the proceedings there are governed by the statutes and Code of that state. Section 471 of their Code, among other things, provides, in effect, that the second part of that act, being the part entitled “Of Civil Actions,” “shall not affect proceedings upon mandamus.” The Code, as originally adopted in this state, provided that, “until the legislature shall otherwise provide, this act shall not affect proceedings upon mandamus,” etc. Section 365, c. 120, Laws 1856. That provision was excluded by the Revision of 1858, which, among other things, provided that “ all the forms of pleading heretofore existing are abolished, and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are determined, are those prescribed by this chapter,” (section 1, c. 125, Rev. St. 1858,) which consisted of a complaint, answer, reply, and demurrer, as now. The legislature having thus excluded the saving clause as to mandamus, and abolished all existing “forms of pleading,” and all “distinctions between actions at law and suits in equity, and the forms of all such actions and suits,” can it still be maintained that the rules of pleading and practice in mandamus cases are not to be governed by the statute as to the sufficiency of such pleadings, but by the rules which existed at common law? It is true that at common law the words “civil actions” would not include writs of mandamus. Com. v. Com'rs Lancaster, 6 Bin. 9. Mr. Bouvier says: “The vital idea of action is a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law.” On the other hand, a mandamus, at the common law of England, was denominated a prerogative writ, and was originally issued out of the court of chancery, but subsequently out of the court of king's bench, because the king originally sat in those courts in person, and aided in the administration of justice. Hence, in theory at least, it was not so much the individual seeking redress as the king who was the actor.

In this country it cannot be a prerogative writ; but, nevertheless, partakes of the nature of such a writ, and under the constitution and laws is issued by the courts. Atty. Gen. v. Ry. et seq. 35 Wis. 512. Beyond question it is, however, in a proper case, in substance a civil remedy for the citizen who has been deprived of a clear legal right, notwithstanding it is commenced and prosecuted in the name of the state. The state is only a nominal party. Bowes v. O'Brien, 2 Carter, 431;State v. Com'rs, 5 Ohio St. 502. The word “suit” is frequently used in practice as synonymous with the words “civil action,” but, nevertheless, it seems to be more comprehensive, and includes proceedings in chancery...