State ex rel. Turner v. Circuit Court of Ozaukee Cnty.

• Decision Date: 12 May 1888
• Citation: 71 Wis. 595,38 N.W. 192
• Parties: STATE EX REL. TURNER v. CIRCUIT COURT OF OZAUKEE COUNTY.
• Court: Wisconsin Supreme Court

71 Wis. 595

38 N.W. 192

STATE EX REL. TURNER

v.CIRCUIT COURT OF OZAUKEE COUNTY.

Supreme Court of Wisconsin.

May 12, 1888.

Motion to quash a writ of certiorari granted on the relation of E. S. Turner against the circuit court of Ozaukee county, as improvidently awarded.G. W. Foster and C. E. Estabrook, Atty. Gen., for relator.

Turner & Timlin, for respondent.

COLE, C. J.

The town of Saukville was indicted for not repairing a bridge, and was found guilty. A motion was made to set aside the verdict, and for a new trial, which motion was denied, and the defendant town was sentenced to pay a fine of $250. The cause was then brought to this court on a writ of error, and the judgment of the circuit court was affirmed. On the return of the record to the circuit court, the defendant made a motion, founded upon a petition and affidavits for a new trial, which motion was granted. A common-law writ of certiorari was then issued from this court to review the order of the circuit court granting a new trial. A motion is now made to quash the writ because it was improvidently granted, and that motion is the matter to be considered. The rule is well settled in this court that the only question arising on the motion is the question of jurisdiction. Where the writ issues to review the proceedings of a court, that is the only question which will be examined, though it is otherwise when it issues to review the proceedings of officers or bodies not proceeding according to the common law. It is not necessary to cite our decisions where these principles have been adjudicated and settled. Had, then, the circuit court power or jurisdiction to grant a new trial in this cause? For the purposes of the case, jurisdiction may be defined to be the power to hear and determine the cause or controversy before the court, or the power to grant the motion for a new trial. See Wanzer v. Howland, 10 Wis. 16;Pollard v. Wegener, 13 Wis. 510; Arnold v. Booth, 14 Wis. 180;Hauser v. State, 33 Wis. 678. Section 4719, Rev. St., reads as follows: “The circuit court may at the term in which the trial of any indictment or information shall be had, or within one year thereafter, and in either case, before or after judgment, on the petition or motion in writing of the defendant, grant a new trial for any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms as the court may direct.” It appears that a proper motion was made within one year from the judgment, upon the grounds addressed to the discretion of the circuit court, and a new trial was undoubtedly granted under the special authority conferred by the above statute; and the question now is, had the court power to grant it? We can only consider the question of the power or jurisdiction of the court in the matter, not whether it exercised that power wisely or granted the motion on insufficient grounds, for the court may have erred, but error does not affect its jurisdiction. This statute was probably borrowed from Massachusetts. See Rev. St. Mass. 1882, c. 114, § 128; Com. v. Peck, 1 Metc. 428; Com. v. McElhaney, 111 Mass. 439;Com. v. Scott, 123 Mass. 418. Also Ter. St. Wis. p. 377, § 6; Rev. St. 1849, § 6, c. 149; Rev. St. 1858, § 6, c. 180. We do not well see upon what grounds the power of the court to grant the new trial can be denied if the provision is valid. The fact that the judgment has been affirmed by this court furnishes no sufficient reason for denying that power. It is said by the affirmance of the judgment it became a finality, a final determination of the cause and sentence of the law. That view certainly would be correct had not the legislature conferred this special authority to grant a new trial upon a proper cause shown. On affirmance of a judgment in a civil case no new trial could be granted unless the statute authorized it. It is only where the statute does authorize it can a new trial after affirmance be granted, either in a civil or criminal cause. In actions of ejectment the circuit court can grant a new trial even after affirmance by this court, and this by virtue of a statute upon the subject. Haseltine v. Simpson, 61 Wis. 427, 21 N. W. Rep. 299. Consequently we can perceive of no sufficient grounds or reasons for denying the validity of the statute to grant a new trial after judgment has been affirmed in this court, any more in a criminal than in a civil cause. So, under section 2832, a large discretionary power is vested in the court to relieve a party within a year from a judgment through mistake or excusable neglect. In the McElhaney Case, it was held that a new trial might be granted in a capital case after sentence of death passed, and exceptions had been overruled by the supreme court, which was equivalent to an affirmance of the conviction. True, in that case a new trial was refused, but still the court distinctly affirm the point stated. It may be conceded that independently of the statute the court would have no power to grant a new trial after the affirmance of the judgment. But as the statute expressly authorizes it, the circuit court may, either before or after judgment, grant a new trial within a year. This right the legislature has seen fit to extend to the convicted party, and we do not see that the provision is obnoxious to any constitutional objection. The reason and policy of this statute are stated by Mr. Justice TAYLOR in Ohms v. State, 49 Wis. 421, 5 N. W. Rep. 827. Chief Justice SHAW, in Com. v. Peck, gives some reasons in vindication of the wisdom and necessity of the statute. He says: “It may sometimes occur that from the discovery of new evidence it would be perfectly in the power of the defendant to establish his innocence by plenary evidence, if he could avail himself of an opportunity to bring it before a jury. Between the trial and sentence it might be discovered that the conviction was the result of conspiracy and perjury, which could be fully demonstrated on another trial.” It was doubtless some such considerations which induced the legislature to enact the provision, and effect should be given to it in a proper case. Quite an elaborate argument is made on behalf of the relator to establish the position that the court ought not to have granted a new trial on the case presented. It may be that the court erred in its decision, but for the reasons before indicated we cannot consider that point. On this writ we do not review the decision for error, but merely the question whether the court had jurisdiction to make it. Upon that point we confess we are entirely clear that the court, in granting a new trial, did not exceed its jurisdiction, even though it may have erred in granting the trial upon the case presented. Hauser v. State, supra; In re Semler, 41 Wis. 517. It seems hardly necessary to add that the power of the court rested exclusively upon the authority conferred by the statute, and not upon its general jurisdiction.

It follows from these views that the motion to quash the writ must be sustained.

ORTON, J., ( dissenting.)

The undersigned most respectfully hereby dissents from the decision of the motion in this case. The cause of State v. Town of Saukville had been tried before a jury on a plea of not guilty on its merits. The jury found the defendant guilty, and the court sentenced it to pay a fine of $250 and costs. In due time the defendant made a motion to set aside the verdict and to grant a new trial in the cause, which was overruled,and the defendant excepted. On writ of error to this court and bill of exceptions said judgment was affirmed, absolutely, and without any reservation. After the remittitur, the circuit court granted a new trial in the cause ostensibly on the ground that certain evidence which had been given and considered at the trial did not appear in the bill of exceptions in this court, and for other reasons. This was done, as claimed, by virtue of section 4719, Rev. St., which provides that the circuit court may, at the “term in which the trial of any indictment or information shall be had, or within one year thereafter, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice has not been done.” The new trial was evidently granted under the power given by this last clause of the section, for the cause stated was not sufficient as the ordinary ground of a new trial. This proceeding was brought to this court by certiorari. The defendant moved in this court to quash the writ, on the ground that the circuit court had the power and jurisdiction under the above statute to grant such new trial. This court sustained the motion, holding that the circuit court had such power and jurisdiction under said statute, notwithstanding the affirmance of the judgment on the writ of error. The motion was submitted on the brief of the defendant's counsel, and on a brief of an attorney for the state, the attorney general for some reason omitting to file any brief or cite any authorities on behalf of the state. In my opinion this motion involved, and the decision has disposed of, the most important question of jurisdiction ever presented to this court. The constitutional jurisdiction of this court not only embraces its power to hear and determine causes coming before it within its appellate jurisdiction and general control over inferior courts, but it embraces also the legal effect of its judgments as res adjudicata. The legislature, in carrying out the provision of the constitution conferring its jurisdiction, provided that it “may reverse, affirm, or modify the judgment, etc., and may, if necessary or proper, order a new trial,” and “shall remit its judgment or decision to the court from which the appeal or writ of error was taken, to be enforced accordingly.” Section 3071, Rev. St. This statute does not confer any jurisdiction upon the court, but it is an...