State ex rel. S. Colonization Co. v. Circuit Court of St. Croix Cnty.

• Decision Date: 12 May 1925
• Parties: STATE EX REL. SOUTHERN COLONIZATION CO. v. CIRCUIT COURT OF ST. CROIX COUNTY ET AL.
• Court: Wisconsin Supreme Court

187 Wis. 1

203 N.W. 923

STATE EX REL. SOUTHERN COLONIZATION CO.

v.CIRCUIT COURT OF ST. CROIX COUNTY ET AL.

Supreme Court of Wisconsin.

May 12, 1925.

Petition for mandamus by the State, on the relation of the Southern Colonization Company, against the Circuit Court of St. Croix County and others. Writ awarded.

This is an original action begun by petition in this court, praying that an alternative writ of mandamus issue out of this court, requiring the circuit court of St. Croix county to enter judgment in favor of the petitioner and against Howard Cole & Co., Inc., pursuant to the terms of a certain stipulation and contract of settlement dated September 25, 1923. It appears that after the trial of a certain action had been entered upon in the circuit court for St. Croix county, there was an agreement or stipulation of settlement. Thereafter, upon a motion of the defendant, the court set aside the stipulation and ordered that the cause stand for trial. From that order, the plaintiff in that action, the petitioner here, appealed to this court. The case is reported. Southern Colonization Company v. Howard Cole & Co., Inc., 201 N. W. 817.

The stipulation and the order of the court setting it aside, together with other material facts, are set out as a part of the opinion upon the appeal, and only such reference thereto will be made here as is necessary to present the questions raised by the petitioner in this court.

It having been held upon the appeal that the order was not appealable, the petitioner alleges that, if no relief be granted in this proceeding, it will be compelled to wait until the cause shall have been fully tried and final judgment entered therein before it can have the order of the court refusing or directing a judgment to be entered upon the stipulation reviewed upon appeal, and that it will thereby suffer great and irreparable injury and damage, that to try said cause it will be required to bring witnesses from different parts of the United States, and that it will be put to great expense in preparing for trial; and further alleges that the petitioner is entitled, as a matter of right, to judgment upon the stipulation and settlement, and that the petitioner has no sufficient or adequate remedy at law in the premises. To the petition there was a demurrer. The cause has been presented here upon oral arguments, and briefs of counsel have been filed.Spencer Haven, of Hudson (George S. Grimes, of Minneapolis, Minn., of counsel), for petitioner.

Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, and N. O. Varnum, of Hudson, for defendants.

ROSENBERRY, J. (after stating the facts as above).

[1] In this state, the writ of mandamus will not be used to enforce the functions of appeal or writ of error. State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158. Mandamus will be granted to compel an inferior court to act within its jurisdiction or to refrain from going beyond it when the duty is plain and imperative, substantial injury is threatened, and other remedies are inadequate, and where the application for relief is promptly and seasonably made. State ex rel. Milwaukee E. R. & L. Co. v. Circuit Court for Rock County, 133 Wis. 442, 113 N. W. 722.

The matter of the original jurisdiction of this court, and when the superintending powervested by the Constitution in the Supreme Court would be exercised, was thoroughly considered in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L. R. A. 33, and it was there held that this court may by mandamus compel an inferior court to perform a duty imposed by statute which is not discretionary in its nature, and may also compel action in cases where discretion is to be exercised, when it clearly appears that such discretion has not in fact been exercised or that action has been taken in manifest disregard of duty and without semblance of legal power, and where it further appears that there is no remedy by appeal, or that such remedy, if existing, is entirely inadequate, and the exigency is of such an extreme nature as to justify the interposition of such extraordinary superintending power.

[2][3][4] The first contention of the petitioner is that the trial court had no right or power to set aside the contract of settlement, in the absence of other parties to the agreement who were not parties to the action, or before the court in the proceeding in which the agreement was set aside. The stipulation was set out in full in the former case, and it was signed, not only by the parties and their attorneys, but there were other parties to the stipulation and contract of indemnity by which the indemnitors agreed to save harmless Howard Cole & Co., Inc., from certain suits or proceedings therein referred to. As is stated in the former opinion, a stipulation is a contract made in the course of judicial proceedings, and as such has some incidents that do not belong to ordinary contracts. One of these is that the rights of persons who join in such a stipulation are referable to the rights of the parties to the action in which the stipulation is made. The mere fact that a stipulation as made by the parties is signed by others, or its performance guaranteed, or an agreement made to save harmless a party, does not thereby divest the court of its jurisdiction in the action, and the rights of all parties so joining in a stipulation must be held to be dependent upon the rights of the parties to the action in which the stipulation is made. The cases cited by counsel are cases in which an action had been begun for the purpose of rescinding or canceling contracts, and in that case of course all parties in interest must be joined. A guarantor or indemnitor of such contract may or may not be a necessary party. If he is, his presence in the action is necessary to a final determination thereof. That rule, however, has no application where a guarantor or indemnitor joins in the making of a stipulation in an action to which he is not a party and where his liability, if any, arises by reason of the fact that he joined in the stipulation and not otherwise.

[5] It is urged by the respondent in this action that the granting or denial of the motion, made by the defendant to be released from the stipulation, was within the exercise of the discretion of the trial court, and therefore not reviewable in a mandamus proceeding. It is not necessary for us to reconsider the rule as to when this court will entertain, in the exercise of its superintending power over inferior courts, given to it by section 3, art. 7, of the Constitution, an application for a writ of mandamus. That subject was thoroughly and carefully reviewed in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 623, 79 N. W. 1081, 1090, 51 L. R. A. 33. The court there said:

“A writ of mandamus, compelling the trial court to accord to the creditors the exercise of their clear rights in the assignment proceedings, cannot therefore be held an interference with judicial discretion, when no attempt is made...