State ex rel. Pierce-Arrow Motor Car Co. v. Circuit Court of Milwaukee Cnty.

• Citation: 127 N.W. 998,143 Wis. 282
• Parties: STATE EX REL. PIERCE-ARROW MOTOR CAR CO. ET AL. v. CIRCUIT COURT OF MILWAUKEE COUNTY ET AL.
• Decision Date: 04 October 1910
• Court: Wisconsin Supreme Court

143 Wis. 282

127 N.W. 998

STATE EX REL. PIERCE-ARROW MOTOR CAR CO. ET AL.

v.CIRCUIT COURT OF MILWAUKEE COUNTY ET AL.

Supreme Court of Wisconsin.

Oct. 4, 1910.

Petitions of the Pierce-Arrow Motor Car Company, the Chalmers-Detroit Motor Car Company, the Pope Manufacturing Company, and the American Automobile Company for writs of prohibition to the Circuit Court of Milwaukee County and others. Denied.

Timlin, Siebecker, and Kerwin, JJ., dissenting.

Quarles, Spence & Quarles, for relators.

Bloodgood, Kemper & Bloodgood (Jackson B. Kemper, of counsel), for respondents.

WINSLOW, C. J.

These are four separate petitions for writs of prohibition. The petitioners are all foreign manufacturing corporations, and were joined as defendants, with a large number of other foreign and domestic corporations, in an action brought in the circuit court of Milwaukee county by the Velie Motor Vehicle Company, a foreign corporation, charging conspiracy to ruin its business, and alleging damage to the amount of $500,000. The summons and complaint in said action were attempted to be served on the petitioners by service upon certain persons and domestic corporations alleged to be agents of the respective petitioners transacting business for them in this state. The petitioners separately moved in the circuit court, upon affidavits showing the contract relations between themselves respectively and the alleged agents upon whom service was attempted to be made, for orders setting aside the service in each case, upon the ground that the persons and corporations upon whom service was made were not agents of the petitioners within the meaning of the statute. These motions were denied, and the petitioners now ask this court to exercise its power of superintending control and issue writs of prohibition to the circuit court and its judge, commanding that no further proceedings be taken in that action and that the motions to set aside the attempted service be granted.

The power of “a general superintending control over all inferior courts,” which the Constitution (article 7, § 3) grants to this court, was first extensively considered and its limits defined in the case of State ex rel. v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33. The subject has been discussed in a number of cases since that time, but no attempt has been made either to vary or enlarge the general principles laid down in the first-named case; but, on the other hand, in all of the subsequent cases those principles have been either literally or in substance approved and applied. Those principles in substance are that this jurisdiction is not to be exercised upon light occasion, but only upon some grave exigency; that the writs by which it is exercised will not be used to perform the ordinary functions of an appeal or writ of error; that the duty of the court below must be plain; its refusal to proceed within the line of such duty, or, on the other hand, its intent to proceed in violation of such duty must be clear; the results must be not only prejudicial, but must involve extraordinary hardship; the remedy by appeal or writ of error must be utterly inadequate; and the application for the exercise of the power of superintending control must be speedy and prompt. State ex rel. v. Johnson, supra; State ex rel. v. Circuit Court, 133 Wis. 442, 113 N. W. 722;State ex rel. v. Ludwig, 106 Wis. 226, 82 N. W. 158;State ex rel. v. Helms, 136 Wis. 432, 118 N. W. 158.

Does the present case come within these principles? We think not. One of the cardinal rules is that the duty of the court below must be plain. The situation must be such that hardly more than a statement of the facts is necessary to convince the legal mind as to the duty of the court. Where there is no such clear and obvious duty, based either upon common-law principles or upon express statute, but where questions of law or fact or both are involved of such difficulty that “a judge may reasonably, proceeding considerately, commit judicial error,” the court will refuse to intervene under its power of superintending control, but will leave the parties to their remedy by appeal. State ex rel. v. Circuit Court, 134 Wis. 301, 114 N. W. 455. The duty of the court cannot be said to be plain in the present case. Difficult questions were presented to the trial court upon the motions to vacate the service; questions in the solving of which there was ample room for the ablest trial judge, after mature consideration, to commit error.

The complaint alleged conspiracy to ruin the plaintiff's business. One of the principal overt acts of this conspiracy, from which great damage is alleged to have resulted, is charged to have been committed in the state of Wisconsin. The damages caused by the overt acts in pursuance of the conspiracy form the gist of the action; hence it would seem that a substantial part at least of the cause of action arose within this state. In a case where the cause of action arises within this state service may be made upon the agent of a foreign corporation “having charge of or conducting any business therefor in this state.” St. Wis. 1898, § 2637, subd. 13. The affidavits submitted upon the motions to vacate the service disclosed that each one of the persons and corporations served on as agents were purchasing automobiles of their respective principals and selling the same under long written contracts prescribing prices, time of payment, territory in which to sell, and many other things. The contracts are very carefully drawn, and do not use the word “agent”; but it is a very serious question, to say the least, whether agencies in fact are not created by all of them. We do not now say that such agencies were created, but simply that the question is not one that can be answered with confidence at once either way. It is worthy the considerate and careful attention of any court, and may well admit of different opinions by equally able legal minds. One of the conditions essential to the successful invoking of the power of superintending control is therefore wanting.

It is urged that the case is one of such exceptional hardship that this court should intervene and stop the proceedings in the court below, notwithstanding the duty may not be plain. The argument runs thus: The order denying the motion to vacate the service is not appealable, nor can it be reviewed on appeal from final judgment, if the defendants appear and defend the case on the merits, because by such appearance they waive the question of jurisdiction (Corbett v. Physicians' Cas. Co., 135 Wis. 505, 115 N. W. 365, 16 L. R. A. [N. S.] 177); hence they can only raise the question by staying out of court, allowing judgment by default for an immense sum, perhaps, to be taken against them, which judgment will stand as a menace to their credit for months until they can bring their appeal to a hearing. The argument is not without its weight, but we cannot admit its conclusiveness. Logically followed out, it would mean that in every case where large damages are claimed this court may be called upon to investigate and decide any question as to the sufficiency of the service of the summons before another forward step is taken in the trial court. The result would be that mandamus, prohibition, and procedendo would gradually, but surely, be used to perform the ordinary functions of an appeal, which this court has declared is not the proper function of those writs.

Motion denied in each case, with $10 costs.

TIMLIN, J. (dissenting).

I feel obliged to dissent from the decision denying any relief to the moving parties. An action was begun in the circuit court for Milwaukee county by the Velie Motor Vehicle Company, which pleads that it is a corporation organized and existing under the laws of Illinois, and has its principal office and place of business at Moline, in Illinois. It is engaged in the manufacture and sale of automobiles. Fifty-two foreign and 4 domestic corporations, all engaged in like business, are made defendants, and the action is one to recover damages in the sum of $500,000, suffered by the plaintiff and resulting from an alleged conspiracy between these 56 defendants to injure and destroy the said business of the plaintiff. In furtherance of the alleged conspiracy it is charged that the defendants, except the Kopmeier Motor Car Company have formed a combination, confederacy, or agreement under the name of the “Association of Licensed Automobile Manufacturers,” which constitutes an unlawful agreement or combination in restraint of trade, and notified the plaintiff to pay $14,000 and restrict its output and become a member. Upon plaintiff's refusal to accept these terms and become a member, they warned plaintiff that unless it joined the association and complied with its demands the defendants would prevent it from carrying on its business and injure and ruin its business. Defendants have induced and are inducing persons having contracts with the plaintiff for the purchase of automobiles to break such contracts, and have made threats and...