Tourville v. S. D. Seavey Co.
| Decision Date | 31 January 1905 |
| Citation | 124 Wis. 56,102 N.W. 352 |
| Parties | TOURVILLE v. S. D. SEAVEY CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.
Action by John B. Tourville against the S. D. Seavey Company. From a judgment for plaintiff, defendant appeals. Affirmed.
In response to a writ of certiorari to review a judgment of the municipal court of the city of Superior, Douglas county, Wis., the proceedings in regard thereto were returned to the circuit court for such county. The petition assigned as the sole jurisdictional defect that upon the return day of the summons there was no appearance by the defendant and the cause was adjourned for one week, no entry being made in the docket as to the place to which it was adjourned; that on the return day, though the defendant did not appear and the court had lost jurisdiction of the cause, plaintiff was permitted to make proof of his claim and take judgment for $86.71, damages and costs. The result of the hearing in the circuit court was a judgment of affirmation, from which defendant appeals.D. E. Roberts, for appellant.
H. V. Gard, for respondent.
MARSHALL, J. (after stating the facts).
As indicated in the statement, the only jurisdictional defect mentioned in the petition is the omission to enter upon the court docket the place to which the trial of the cause was adjourned. We agree with respondent's counsel that proper practice requires the applicant in such cases to state in his petition specifically the jurisdictional defects relied upon, the court issuing the writ to regard all others, if any there be, waived, and to affirm or reverse the judgment or other final decision involved according to the effect thereon thereof. There is no definite declaration to that effect in our decided cases, neither is the practice regulated by statute. It is wholly of judicial origin and came to us with the common-law writ which was preserved in our judicial system. In like situations elsewhere courts in reviewing proceedings as to jurisdictional defects when challenged by such a writ, universally regard those not specified as relied upon in the petition as waived.
The writ of certiorari is not one of strict right. Whether it shall or shall not issue in any given case rests in the sound discretion of the court. Knapp et al. v. Heller, Town Clerk, etc., 32 Wis. 467;State ex rel. Schintgen v. Mayor and Common Council of La Crosse, 101 Wis. 208, 77 N. W. 167. Hence the propriety of requiring every jurisdictional defect, upon which the petitioner intends to rely, to be plainly pointed out and brought to the attention of the court in order that its discretion may be intelligently exercised in passing upon the application for the writ, and the propriety also of examining the return only as it responds to the points of challenge. The return on such points when it fully presents the record, is conclusive and furnishes the sole basis for answering the question of whether the judgment should be reversed or affirmed. The statement in Enc. of P. & P. vol. 4, p. 293, to which respondent's counsel refers, voices the rule in that regard correctly, thus:
“The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered...
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State v. Ellison
...upon the same subject consists, and any matter not so set forth will be taken as waived and will not be considered. Tourville v. S. D. Seavey Co., 124 Wis. 56, 102 N. W. 352; State ex rel. v. Schweitzer, 131 Wis. 138, 111 N. W. 219. Although this petition is very indefinite, we have conside......
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State ex rel. Badtke v. School Bd. of Joint Common School Dist. No. 1, City of Ripon
...will be considered except such as are pointed out therein, although they are apparent of record." Tourville v. S. D. Seavey Co., 1905, 124 Wis. 56, 58, 102 N.W. 352, 353; State ex rel. A. Hynek & Sons Co. v. Board of Appeals, 1954, 267 Wis. 309, 315b, 64 N.W.2d 741, 66 N.W.2d 623. The motio......
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State v. Sullivan
...v. DNR, 94 Wis. 2d 309, 312, 287 N.W.2d 841 (Ct. App. 1979), aff'd, 100 Wis. 2d 234, 301 N.W.2d 437 (1981); Tourville v. S.D. Seavey Co., 124 Wis. 56, 58, 102 N.W. 352 (1905). 12. Third, Skenandore claims his due process and equal protection rights were violated by the failure of the commis......
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Snyder v. Malone
...appellant must be denied, for these provisions do not apply to actions and proceedings of a court of record. John B. Tourville v. S. D. Seavey Co. (decided herewith) 102 N. W. 352;State ex rel. Le Clair v. Wright, 80 Wis. 648, 50 N. W. 894;Falkner v. Guild, 10 Wis. 563;In re Marchant's Esta......