State ex rel. Weismann v. Kemen

• Decision Date: 25 November 1884
• Citation: 61 Wis. 494,21 N.W. 530
• Parties: STATE EX REL. WEISMANN v. KEMEN AND ANOTHER.
• Court: Wisconsin Supreme Court

61 Wis. 494

21 N.W. 530

STATE EX REL. WEISMANN

v.KEMEN AND ANOTHER.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Kenosha county.

Henry Weismann, for respondent.

Quarles & Paddock, for appellants.

TAYLOR, J.

In this case a writ of certiorari was issued out of the circuit court of Kenosha county upon the petition of the respondent, directed to the appellants, as district clerk and district treasurer of joint school-district No. 7 of the towns of Brighton and Paris, in said county of Kenosha. The object of the proceeding is set out fully in the petition for the writ, and is to set aside a sale of the school-house and fixtures alleged to be owned by said district, and which, it is alleged, the said Kemen and Thom had unlawfully, and without authority, wrongfully and fraudulently sold to one Joseph Jockley and another, and that the said purchasers had, upon such wrongful and fraudulent sale, taken possession of said school-house and fixtures, and removed the same upon lands owned by said Jockley. The petition contains a long statement of alleged facts; and the return of the appellants to the writ, and their amended return, contain many statements of facts by which they justify the sale of said school-house and fixtures to the said Jockley and others; all of which matters we deem unnecessary to consider upon this appeal. On the returns being made to the writ, the appellants appeared in court and moved to quash said writ upon the following grounds: “(1) That the said writ was misdirected; and (2) that the petition for said writ did not state facts sufficient to constitute a cause of action.” Without considering the exceptions to the findings of fact and conclusions of law made by the learned circuit judge upon the hearing of the case, we are very clear that the judgment should be reversed on the ground that the petition made no case for the allowance of the writ. What was attempted to be inquired into by the proceedings in this case was an alleged wrongful and fraudulent sale of a school-house and fixtures, belonging to a school-district, by two of the district officers. This sale was in no sense a judicial or quasi judicial proceeding, but simply, according to the allegations of the petition, a wrongful and fraudulent act of the appellants.

It is well settled that the writ of certiorari at common law can only be issued to inferior courts or bodies acting in a judicial or quasi judicial character, and not for the purpose of reversing ministerial or unlawful acts not done in the discharge of some judicial or quasi judicial duty. 1 Cary, N. Y. Pr. 152; Wood, Mand. 184. “It is only acts of a judicial nature that can be reviewed on certiorari; and this, too, whether the act is that of a judicial officer or a municipal corporation or otherwise.” People v. Van Slyk, 4 Cow. 297;Pugsley v. Anderson, 3 Wend. 468;Pearsall v. Commissioners, 17 Wend. 15;People v. Mayor, 2 Hill, 9;In re Mount Morris, 2 Hill, 14;People v. Mayor, 5 Barb. 43;People v. Board Health, 33 Barb. 344;People v. Board Sup'rs, 43 Barb. 232.

“It is also a rule of law that, before allowing or acting upon the writ of certiorari, it must be made satisfactorily to appear to the court that a wrong has been done, and that the error is of a nature that can be corrected by the issuing of the writ.” People v. Mayor, 5 Barb. 44;In re Conover v. Devlin, 24 Barb. 641;In re Commissioners v. Devlin, 15 Wend. 198. It would be useless to multiply authorities to show...