State ex rel. Wis. Power & Light Co. v. Zimmermann

• Decision Date: 08 November 1927
• Citation: 215 N.W. 887,194 Wis. 193
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. WISCONSIN POWER & LIGHT CO. v. ZIMMERMANN, JUDGE.

194 Wis. 193

215 N.W. 887

STATE EX REL. WISCONSIN POWER & LIGHT CO.

v.ZIMMERMANN, JUDGE.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Original proceedings by alternative writ of mandamus in this court. Motion to quash granted.

Original proceeding by the State, on the relation of the Wisconsin Power & Light Company, for mandamus to be directed to A. G. Zimmerman, Judge of the Ninth Judicial Circuit, in which an alternative writ of mandamus was issued. On respondent's motion to quash. Motion granted, and proceedings dismissed.--[By Editorial Staff.]

April 30, 1926, one E. J. Theby was injured by contact with electric wires causing his death on May 1st. A claim was asserted against the city of Columbus, in whose employ he was at the time, by his widow, and an award duly made to her by the Industrial Commission on July 1, 1926, of $5,600, with funeral expenses.

On April 20, 1927, an action was brought against the relator here, by the widow, also administratrix of the estate of said deceased, charging negligence on defendant's part, and demanding in one cause of action to recover for the pain, suffering, and consequent damages, and in another for the death loss.

On May 21st the relator served its answer, denying negligence on its part and alleging, as the proximate cause of said injury and death, negligence by the said city of Columbus. On May 25th the cause was duly noticed by plaintiff's attorneys for trial at the term of the circuit court for Dane county commencing September 12th. The customary call of the calendar of causes then pending was not taken up until the 19th, at which time there had been made returnable and then heard relator's order to show cause, due notice whereof had been given to the plaintiff's attorney and to the said city of Columbus to have the city of Columbus made a party defendant therein, so that questions properly presented as between the relator, on the one hand, and the city of Columbus, on the other, might be determined. On the hearing of said motion the city of Columbus appears to have made no objections to the entry of such order, but it was opposed by plaintiff.

The court on September 19th by oral order, in open court, denied the application, and on September 24th signed a written order so denying and therein reciting from the records the dates above set forth as to the commencement of the action, the serving of the answer, the notice for trial, and the call of the calendar.

On September 27th, upon a petition of relator in which were recited substantially all the above facts and including a copy of the complaint and the answer of relator setting out the grounds upon which it is claimed relief as against the city of Columbus, an alternative writ of mandamus directed to the respondent as such circuit judge was issued and duly served, commanding him to so make the city of Columbus a party defendant or show cause to the contrary. Upon the return day the respondent moved this court to quash said alternative writ.Schubring, Ryan, Clarke & Petersen, of Madison, and Eugene L. McIntyre, of Milwaukee, for plaintiff.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Albert K. Stebbins, of Milwaukee, of counsel), for defendant.

ESCHWEILER, J.

The respondent's motion to quash the alternative writ was properly made, should be granted, and the proceedings by relator in this court dismissed.

From an early time it has been recognized by this court that alternative writs of mandamus, such as here, being often hurriedly applied for and in seeming emergencies, withoutnotice to other parties or persons interested and without argument, are generally issued unless they clearly show upon their face that there is no support whatever for such writ. State ex rel. Cothren v. Lean, 9 Wis. 279, 281. The same case holding that under such situation a motion by respondent to quash the writ and proceedings because of want of proper grounds is an approved method of presenting the question and serves in the nature of a demurrer to such petition. Such a motion was entertained in State ex rel. v. Haben, 22 Wis. 660, 662.

We do not reach and shall not consider the questions here argued as to whether, under the procedural statutes, such as section 260.19 (1), (3), (4), regulating interpleader, and section 263.15 (1), (2), as to relief between codefendants and interpleaded parties, a defendant, situated as was the relator here towards the city of Columbus, can insist upon the granting of such an application as an absolute duty imposed on the court or whether it merely calls for the exercise...