State ex rel. Light v. Grimm

• Decision Date: 20 June 1932
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. HUSTISFORD LIGHT, POWER & MFG. CO. v. GRIMM, CIRCUIT JUDGE ET AL.

208 Wis. 366

243 N.W. 763

STATE EX REL. HUSTISFORD LIGHT, POWER & MFG. CO.

v.GRIMM, CIRCUIT JUDGE ET AL.

Supreme Court of Wisconsin.

June 20, 1932.

Original action by mandamus by the State, on the relation of Hustisford Light, Power & Manufacturing Company, to compel George Grimm, as Judge of the circuit court of Rock county, to vacate an order of compulsory reference made in a case wherein the Wisconsin Power & Light Company was plaintiff. Alternative writ was issued.--[By Editorial Staff.]

Writ quashed.

Original action by mandamus to compel respondent, as judge of the circuit court of Rock county, to vacate an order of compulsory reference entered December 23, 1931.

On January 12, 1932, the respondent, Wisconsin Power & Light Company, commenced an action against the petitioner, Hustisford Light, Power & Manufacturing Company, to recover alleged overpayments for electric current furnished respondent by the petitioner. The complaint alleged a contract between the defendant and the Wisconsin Power, Light & Heat Company, to the rights of which company plaintiff has succeeded. By the terms of this contract the plaintiff, under certain conditions, and the defendant, under certain others, was to purchase current from the other contracting party. The complaint alleges that defendant billed the plaintiff for current furnished; that plaintiff relied upon defendant's statement as to the propriety of the charges and their correctness and paid these bills; that the statements were incorrect, and that plaintiff was overcharged; that the amount of the current claimed to have been delivered and sold to plaintiff was in excess of defendant's capacity to generate; that this resulted in overpayment in the sum of $28,124. As a second cause of action it is alleged that on various dates between April 25, 1930, and August 18, 1930, plaintiff delivered current to the defendant, and billed defendant for the same; that the amount due for such current is $1,032. The answer admitted the charges by defendant and payments by plaintiff on the first cause of action, but denied the over charge, and as a separate defense set up laches and negligence upon the part of the plaintiff in investigating the charges and making the payments. What amounts to a general denial was interposed to the second cause of action. On December 23, 1931, on motions of plaintiff, an order was entered referring the issues to a referee, upon the ground that the trial would involve the examination of a long account. On January 15, 1932, defendant moved for an alternative writ of mandamus to compel the trial court to vacate the order of reference. The alternative writ issued on March 8, 1932.Richmond, Jackman, Wilkie & Toebaas, of Madison, and George Hartman, of Juneau, for petitioner.

Schubring, Ryan, Clarke & Petersen, of Madison, and A. W. Lueck, of Beaver Dam, for respondents.

WICKHEM, J.

Respondent first contends that the instant case is not a proper one for the exercise of the superintending power of this court, for several reasons. While denying that error was committed in ordering a compulsory reference, the gist of respondent's contention is that the most that could be claimed is that the order for reference is erroneous, and that the superintending power should not be permitted to serve the office of an appeal or writ of error. The order for reference is not appealable, and it is contended that for this court to review such an order under its superintending power will be virtually to make the order appealable in a situation where the remedy by appeal from the final judgment is not inadequate. It is claimed that this court should not intervene, thereby suspending the trial of a cause, in order to determine the correctness of interlocutory rulings, which may be reviewed upon appeal from final judgment, and that to do so will disorganize the judicial process in the lower courts, impair the dignity and independence of the lower courts and the public confidence in them. To this petitioner replies that the error complained of is something more than an ordinary error, in that it consists of a denial to defendant of its right of jury trial, and further that the order complained of, if erroneous, as it is contended to be, will necessarily impose great hardship upon petitioner, in that it will compel petitioner in advance of a ruling by this court to submit to a long and expensive reference, thus rendering the appeal inadequate. It is contended that superintending power should be exercised in cases where a serious error will result in hardship so great as to make the appeal inadequate.

These contentions raise an issue of great importance. On the one hand, it is evident that this court cannot, without causing the disorganization and breakdown of the judicial machinery of the state, permit trials to be suspended in every case where error on the part of the trial court is claimed, while it determines the propriety of the ruling. On the other hand, great burdens in the form of expense and delay, and amounting to a denial of justice, may occasionally be imposed upon parties, should this court take the position that its superintending power will never be exercised to review the interlocutory ruling of a trial court, unless the error is jurisdictional in character.

[1] It hardly needs to be repeated that the question presented is one of judicial policy rather than one relating to the power of this court. It must be regarded as settled that by the constitutional grant of a “general superintending control over all inferior courts” (article 7, § 3), this court was endowed with a separate and independent jurisdiction, which enables and requires it, in a proper case, to control the course of ordinary litigation in such inferior courts. State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 103 Wis. 591, 612, 79 N. W. 1081, 51 L. R. A. 33;State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 105 Wis. 164, 83 N. W. 320;State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N. W. 447;State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158;State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107.

[2][3] It is further established that the superintending power of this court will not be used lightly. This policy has been variously expressed. It will not be exercised where the remedy by appeal or writ of error is adequate; it will not be permitted to perform the office of an appeal; it will only be used to prevent irreparable mischief. State ex rel. Meggett v. O'Neill, supra; State ex rel. Fourth Nat. Bank v. Johnson, supra; State ex rel. City of Milwaukee v. Ludwig, supra; State ex rel. Tewalt v. Pollard, supra; State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N. W. 158;In re Pierce-Arrow Motor Car Co., 143 Wis. 282, 127 N. W. 998;State ex rel. Southern C. Co. v. Circuit Court, 187 Wis. 1, 203 N. W. 923, 48 A. L. R. 894. Neither the power nor the exercise of it as a matter of policy is limited to keeping the lower court within its jurisdiction or compelling it to act. It has been exercised in cases where the ruling of the lower court was merely erroneous. State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, supra; State ex rel. Brownell v. McArthur, 13 Wis. 407;State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421.

[4][5] In the event that the attempt is made to invoke the superintending power to correct an error of the trial court, it is necessary to establish that an appeal from a final judgment is inadequate, and that grave hardship will follow a refusal to exercise the power. It was said in Re Pierce-Arrow Motor Car Co., supra, that the lower court's duty must be plain--so plain that hardly more than a statement of facts is necessary to convince the legal mind as to the duty of the court. However, this court, in Re Inland Steel Co., 174 Wis. 140, 182 N. W. 917, 918, while disavowing any intention of repudiating the Pierce-Arrow Case, as applied to the facts there present, expressed the opinion “that jurisdiction may properly be exercised though the duty of the court below may not be so plain as to permit of but one conclusion, if a careful consideration of all the facts shows that a valid service has not been made.” Hence it is concluded that the fact that the duty of the trial court in the premises can only be determined by a careful consideration of the facts and the law applicable to the situation is no barrier to the exercise of this power. The mere fact that the trial court's position falls within the field of reasonable debate cannot preclude the exercise of the power unless, indeed, the matter is one within the trial court's discretion.

[6] Upon the question as to whether a compulsory reference erroneously ordered creates such a hardship as will warrant exercise of the supervisory control, no categorical answer may be given, and each case must be judged upon the facts that it presents. It must be apparent that the hardship involved in rulings of the trial court will vary according to the circumstances of each case, and that no comprehensive ruling can be made, and no further guide given than that the hardship must be so great as to render the remedy by appeal or writ of error wholly...