State ex rel. Velie v. Morgan

• Decision Date: 08 January 1907
• Citation: 110 N.W. 245,130 Wis. 293
• Parties: STATE EX REL. VELIE v. MORGAN.
• Court: Wisconsin Supreme Court

130 Wis. 293

110 N.W. 245

STATE EX REL. VELIE

v.MORGAN.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Waupaca County; Chas. M. Webb, Judge.

Certiorari by the state, on the relation of John Velie, against David Morgan to review proceedings to compel a public officer to deliver the books, papers, and money in his custody as such officer to his successor. From a judgment affirming the decision in such proceedings, the relator appeals. Reversed and remanded, with directions.

Complaint was made by David Morgan, the present respondent, to the county judge of Waupaca county, under section 978 et seq., Rev. St. 1898, alleging that the relator, Velie, having been removed from the office of treasurer of a certain school district, and the petitioner having been duly appointed thereto, the former retained, and against the latter's demand refuses to deliver, the books, papers, and money in his custody as such treasurer. After notice and hearing the county judge entered an order, reciting such proceedings and the failure of Velie to make affidavit of delivering over all books and papers, and ordering and commanding the sheriff to take the body of said John Velie and imprison him in the county jail “until he shall deliver the books and papers aforesaid, and pay a fine of $25 for violation of section 977, Rev. St. 1898, Wisconsin. or be otherwise discharged according to law.” Velie sued out from the circuit court of Waupaca county a writ of certiorari, addressed to the county judge, to review these proceedings, alleging that meanwhile he had delivered over all the books and papers in his possession. Upon return disclosing such record, the circuit court entered judgment affirming the order of the county judge and awarding Morgan costs, from which judgment the relator, Velie, brings this appeal.John C. Hart, for appellant.

E. L. & E. E. Browne, for respondent.

DODGE, J. (after stating the facts).

Sections 978, 979, 980, Rev. St. 1898, provide generally that, if any person vacating an office refuse or neglect to deliver to his successor the books and papers of his office, complaint may be made by the successor to any judge of a court of record for the circuit or county where the person refusing resides, whereupon, after order to show cause, he shall be brought before such magistrate, and, unless he make affidavit that he has delivered over all such books and papers, the judge shall, by warrant, commit him to jail, to remain “until he shall deliver such books and papers or be otherwise discharged according to law.” This is not a special proceeding in court, but one before a special statutory tribunal not proceeding according to the course of the common law, nor as a court. Prince v. McCarty, 61 Wis. 3, 20 N. W. 655. No method of direct review is provided either by appeal or by application to the court from which such magistrate derives his power. Section 2815, Rev. St. 1898, which generally confers such right of review upon the court, is, by its terms, confined to orders made in actions or proceedings in courts of record. Since no such method of appeal or other direct review has been provided, the action...