McCormick Harvesting Machine Co. v. Reed

Winslow, J. The exact question presented is whether an appeal can be taken by the main defendant in a garnishee action after the garnishee defendant has sued out and served a common-law writ of certiorari in the same action. We think this question must be answered in the negative. The issuance and service of the writ at once removed the entire record of the garnishee action from the justice’s court to the circuit court. Neuman v. State, 76 Wis. 112. There was nothing left for the appeal to act upon. How could the justice make a return upon the appeal of the “ testimony, proceedings, and judgment,” when the entire record of the cause had already, by the operation of the writ of certiorari, been removed from his tribunal? Again, the difficulties attending the splitting up of the action into two separate actions, one of which may be pending in one court and one in another, and in which contradictory judgments may be rendered, seem insurmountable. Legislation might, perhaps, remedy the difficulty, but until it does we think such an appeal must be held inoperative. By the Court.— Order reversed, and cause remanded with directions to dismiss the appeal.