Ætna Accident & Liab. Co. v. Lyman

• Citation: 155 Wis. 135,144 N.W. 278
• Parties: ÆTNA ACCIDENT & LIABILITY CO. v. LYMAN.
• Decision Date: 10 December 1913
• Court: Wisconsin Supreme Court

155 Wis. 135

144 N.W. 278

ÆTNA ACCIDENT & LIABILITY CO.

v.LYMAN.

Supreme Court of Wisconsin.

Dec. 9, 1913.

Concurring Opinion, Dec. 10, 1913.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Thomas T. Lyman against the Ætna Accident & Liability Company. There was a judgment for plaintiff in the Milwaukee Civil Court, and defendant petitioned in the Circuit Court for a writ of error. From an order dismissing the writ of error, defendant appeals. Affirmed.

The plaintiff in error petitioned the circuit court for Milwaukee county for a writ of error. The petition showed that on the 18th day of December, 1911, a judgment was entered in the civil court of Milwaukee county in the city of Milwaukee against the petitioner in an action in which Thomas T. Lyman was plaintiff and the petitioner herein defendant, in which it was adjudged that the plaintiff recover of the petitioner $366.85 damages and $22.23 costs; that the judgment was rendered in an action at law; that the court in which said judgment was rendered committed error to the prejudice of the petitioner, setting forth the error and praying that a writ of error might issue to the civil court of Milwaukee county for the correction of the errors complained of. A writ of error was issued accordingly, and afterwards on motion of the defendant in error the writ was dismissed. The court made the following order: “It is ordered that the writ of error heretofore issued out of this court and now pending, sued out by the Ætna Accident & Liability Company, plaintiff in error, on the 18th day of October, 1912, against the defendant above named, Thomas T. Lyman, for the purpose of reviewing a judgment of the civil court of Milwaukee county rendered in an action wherein said Thomas T. Lyman was plaintiff and Ætna Accident & Liability Company was defendant, be and the same hereby is dismissed for want of jurisdiction to issue a writ of error to the civil court of Milwaukee county; and that the defendant in error have $10.00, the costs of this motion.” The plaintiff in error appealed from this order.Quarles, Spence & Quarles, of Milwaukee (J. A. Fish, of Milwaukee, of counsel), for appellant.

Lenicheck, Robinson, Fairchild & Boesel, of Milwaukee, for respondent.

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

Conceding that the civil court of Milwaukee county is a court of record with general limited jurisdiction, we approach the main question here, namely, whether a writ of error from the circuit court for Milwaukee county will lie to review a judgment of the civil court.

[1] While the civil court within its jurisdiction proceeds according to the course of the common law and a jury trial may be had therein, a new trial may be awarded in the circuit court on appeal from the civil court in a proper case. The civil court is inferior to the circuit court, and its proceedings may be reviewed in the circuit court on appeal. Chapter 549, Laws of 1909; Eder v. Grifka, 149 Wis. 606, 136 N. W. 154;Milwaukee v. Simons et al., 93 Wis. 576, 67 N. W. 922.

It is contended by appellant that the judgments of the civil court in actions at law are such as were under the territorial organization reviewed by writ of error, and therefore it is argued that under our Constitution and statutes a writ of error will lie from the circuit court of Milwaukee to the civil court of said county; the circuit court being the only court which has appellate jurisdiction over the civil court.

[2] The argument of counsel for appellant is able and ingenious, and doubtless is as strong a showing as can be made in support of their position. We are, however, of opinion that the contention cannot be sustained. We are cited by appellant to some authorities in England showing the condition of the law there before the organization of our territory. But we are not bound by the law of England except in so far as we have adopted it as a part of our judicial system. Section 13, art. 14, Constitution of Wisconsin; Webster v. Morris, 66 Wis. 376, 28 N. W. 353, 57 Am. Rep. 278.

[3]Section 21, art. 1, of the Constitution of Wisconsin, provides that “writs of error shall never be prohibited by law.” This provision manifestly was intended to preserve the right to issue the writ as it existed in the territory of Wisconsin when the Constitution was adopted. Jackson v. State, 92 Wis. 422, 66 N. W. 393;Crocker v. State, 60 Wis. 553, 19 N. W. 435;Bumbalek et al. v. Peehl, 95 Wis. 127, 70 N. W. 71;Buttrick v. Roy, 72 Wis. 164, 39 N. W. 345. In Jackson v. State, supra, this court said: “By the Organic Law of the territory at the time of the adoption of the state Constitution, a writ of error was allowed only from final judgments or orders in the nature of final judgments; * * * and this right was preserved and secured by article 1, § 21, of the Constitution, which provides as follows, ‘Writs of error shall never be prohibited by law.’ As said by Mr. Justice Lyon in Buttrick v. Roy, 72 Wis. 164 , in effect, this constitutional provision renders the writ inviolate, as it existed when the Constitution was adopted. * * * Such is the measure of the constitutional right to the writ, and section 3043 is merely declaratory of the constitutional right, neither extending nor attempting to restrict it.” And in Bumbalek v. Peehl, supra, it is said: “While our Constitution prevents the Legislature from prohibiting writs of error, yet that provision did not enlarge the scope of the writ as it existed when the Constitution was adopted, nor prevent the Legislature from making reasonable regulations in respect to its use.” See, also, Gaston v. Babcock, 6 Wis. 503;Stilwell v. Kellogg, 14 Wis. 461;Connecticut M. L. Ins. Co. v. Cross, 18 Wis. 109;Mead v. Walker, 17 Wis. 189;Lombard v. Cowham, 34 Wis. 300;O'Donnell v. State, 126 Wis. 599, 106 N. W. 18.

[4] In view of the foregoing adjudications in this state, it is necessary to consider what the law was on the subject at the time the Constitution of this state was adopted in order to determine what writs of error “shall never be prohibited by law.”

The organic law of Wisconsin, passed in 1836, provides that the judicial power of the territory shall be vested in a Supreme Court, district courts, probate courts, and in justices of the peace; that the Supreme Court shall consist of a chief justice and two associate judges; that the district courts shall be held in each of the three districts by one of the judges of the Supreme Court, at such times and places as may be prescribed by law; that the jurisdiction of the several courts shall be as limited by law. Section 9. This section further provides that the Supreme and districts courts, respectively, shall possess chancery as well as common-law jurisdiction and “writs of error, bills of exception, and appeals in chancery causes shall be allowed in all cases from the final decision of said district courts to the Supreme Court under such regulations as may be prescribed by law.” It will be seen that the organic law provides for writs of error from the Supreme Court to the district court of the territory only, unless the Legislature of the territory provides otherwise.

Territorial Laws of 1839, § 1, p. 196, fixes the jurisdiction of the Supreme Court of the territory, and provides “that the Supreme Court of the territory shall have and exercise an appellate jurisdiction only, which shall extend to all matters of appeal, error or complaint, from the decisions, judgments or decrees of any of the district courts, in all matters of law or equity. * * *” Section 2 provides: “The Supreme Court shall have power to issue writs of mandamus, quo warranto, prohibition, error, supersedeas, procedendo, certiorari and scire facias, and all other writs and process not specially provided for by statute, which may be necessary to enforce the due administration of right and justice throughout the territory.” Section 6 prescribes the jurisdiction of the district court, and provides: “The district courts shall have original jurisdiction within their respective districts in all civil actions at law or in equity, and appellate jurisdiction in all cases in their several districts from the probate courts, and the decisions of justices of the peace, and the judges of said courts shall be conservators of the peace; and the said courts in term time, and the judges thereof in vacation, shall have power to award throughout the territory, returnable in the proper county, writs of injunction, ne exeat, and all other writs and process which may be necessary to the due execution of the powers with which they are vested; and the said courts shall respectively have power and authority to hear and determine all cases of crimes and misdemeanors of whatever kind, not cognizable by a justice of the peace, which may be committed within any county or place within their respective districts.”

So it will be seen that no power is conferred upon the district courts to issue writs of error; such writs not being “necessary” to the “due execution of the powers with which they are vested.”

The Supreme Court and circuit courts established by the Constitution correspond to the Supreme and district courts in territorial times in so far as the question of the right to issue the writ of error is concerned; therefore section 21, art. 1, of the state Constitution, which provides that writs of error shall never be prohibited by law, continues the right to issue the writ in the Supreme Court only. At the time of the adoption of the Constitution, the judicial method by which the Supreme Court reviewed judgments in actions at law was by writ of error, and the only method by which the district court reviewed judgments of inferior courts was by appeal. So it seems plain that the framers of the Constitution referred by section 21, art. 1, to writs issued from the Supreme Court.

Counsel for appellant contends that, appellate power being conferred by the Constitution on ...