State ex rel. T. L. Smith Co. v. Superior Court of Dane Cnty.

• Decision Date: 13 January 1920
• Citation: 170 Wis. 385,175 N.W. 927
• Parties: STATE EX REL. T. L. SMITH CO. v. SUPERIOR COURT OF DANE COUNTY ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 385

175 N.W. 927

STATE EX REL. T. L. SMITH CO.

v.SUPERIOR COURT OF DANE COUNTY ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Mandamus by the State, on the relation of the T. L. Smith Company, against the Superior Court of Dane County and August C. Hoppman, Judge of said court. From an order denying respondents' motion to quash the alternative writ, and also directing that a return be made to the writ, respondents appeal. Affirmed.

An action was begun by one Albrecht against the relator in the superior court of Dane county to recover the sum of $1,875, claimed to be due on contract. The relator moved for a change of venue to Milwaukee county on the ground that its residence was there. The motion was denied by the superior court, and the relator procured from the circuit court for Dane county an alternative writ of mandamus requiring the superior court and A. C. Hoppman, the judge thereof, to show cause why the venue should not be changed as demanded by the relator. The superior court moved to quash the alternative writ; but the motion was denied, and an order was entered accordingly which also directed the superior court to make a return to the writ. From such order the superior court appealed.J. J. McManamy, of Madison, for appellants.

John A. McCormick, of Milwaukee, for respondents.

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

[1] If the circuit court had supervisory control over the superior court as to the instant case, then mandamus was the proper remedy to test the validity of the order refusing a change of venue. State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421. Such had been the practice since the passage of chapter 212, Laws of 1895, rendering such orders nonappealable. Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432;Waukesha Co. Agr. Soc. v. Wis. Cent. Ry. Co., 117 Wis. 539, 94 N. W. 289;State ex rel. News Pub. Co. v. Park, 166 Wis. 386, 165 N. W. 289.

[2] That the superior court of Dane county as created by chapter 136, of the Laws of 1917, is an “inferior court” within the meaning of article 7, § 8, of the Constitution, giving circuit courts “appellate jurisdiction from all inferior courts and tribunals and a supervisory control over the same,” is established by the decision in American Loan & Trust Co. v. Bond, 91 Wis. 204, 64 N. W. 854, holding that the superior court of Douglas county, which has broader jurisdiction than that of the superior court of Dane county, is an inferior court.

[3] But section 21 of the act creating the superior court of Dane county provides that--

“All appeals in any action or proceeding tried or determined in the superior court of Dane county shall be taken to and reviewed by the Supreme Court in the same manner as appeals from orders and judgments of the circuit court, except that appeals in actions involving a breach of the charter or of any ordinance or by-laws of the city of Madison shall be taken to the circuit court for Dane county.”

It will be seen that the instant case does not fall within the exception, and therefore the circuit court for Dane county has no appellate jurisdiction thereof. The appeal lies directly to the Supreme Court. The power of the Legislature to take away the appellate jurisdiction of the circuit court was sustained by an early decision of this court. See Harrison v. Doyle, 11 Wis. 283, and previous unreported decision therein referred to. This ruling has been steadfastly adhered to (McNab v. Noonan, 28 Wis. 434;American Loan & Trust Co. v. Bond, 91 Wis. 204, 64 N. W. 854), and has become a rule of property which this court must now respect no matter what its view thereof might be as an original proposition. The precise question therefore presented by this appeal is whether a circuit court retains supervisory control over an inferior court in cases wherein its appellate jurisdiction has been taken away by the Legislature and vested in this court. An affirmative answer to the question is required by the decision in State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107, where it is said that the supervisory control of inferior courts cannot be taken away from the circuit courts.

[4] The decision, though apparently made without a consideration of the cases of Harrison v. Doyle, 11 Wis. 283,McNab v. Noonan, 28 Wis. 434, and American Loan & Trust Co. v. Bond, 91 Wis. 204, 64 N. W. 854, would no doubt have been the same had these cases been considered by the court, for the ground upon which they were decided has never been...