State ex rel. Cameron v. Roberts

Pinney, J. 1. There is no defect of substance or form in the writ of certiora7’i in this case, and it was properly [295] sewed. The petition upon which it was issued was, upon its face, entirely sufficient. The only ground upon which it can bo maintained that it ought to have been quashed is that the return shows that it was not issued in a proper case, and that the writ may be quashed on motion after return made, without waiting for a formal hearing at a subsequent term. In State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4, it was held that “ if the respondent is of the opinion that the writ was issued when it ought not to have been, or that it was not properly directed, or was defective, and he does not desire to have the proceedings reviewed upon their merits, he should regularly move the court to quash the writ, and not proceed to a hearing on the merits until such motion is disposed of.” In that case, where a writ of certiorari had been superseded after return and hearing on the merits, but without any motion to quash it, this court reversed the order superseding the writ, but passed upon the merits, and decided that, as the merits of the case were before the court below and had been fully discussed in this court, it would direct what judgment should be entered in the circuit court. The motion to quash in this case was based upon the return and other papers, and the merits of the case, as shown by the return, were necessarily brought under consideration. As a common-law writ of certiorari issues only in the discretion of the court, and not ex débito justitice, the writ may, after return, be quashed or withdrawn, when it is made manifest from the return that it was not issued in a proper case. 2 Burrill, Pr. 196; People v. New York, 2 Hill, 9, 11; People ex rel. Smith v. Comm’rs, 103 N. Y. 370. No objection appears to have been made in the circuit court to the consideration of the merits upon the order to show cause, and on this appeal the entire discussion was upon the merits as thus disclosed. If the return failed to show a want of [296] jurisdiction on the part of the justice, the writ should have been quashed or the judgment should have been affirmed. We are of the opinion that, in view of the manner in which the case came before the court, it might properly render judgment in either form. An order quashing or withdrawing the writ upon such motion would probably be considered a practical affirmance of the judgment. 2. The record of the justice on the question of jurisdiction involved imports absolute verity, notwithstanding contradictory statements made in the justice’s return. Cassidy v. Millerick, 52 Wis. 379; Smith v. Bahr, 62 Wis. 244. The paper returned with the transcript of the docket of the justice shows that both defendants applied for a removal of the case; but the transcript of the docket entry shows that only one of them so applied, and that the court refused the removal “ on the ground that the affidavit of prejudice is signed only by the defendant Mary E. Cameron,, and is made on her behalf only.” The entry of the appearance and answer of the defendant Mrs. R. L. Fatz-inger follows immediately after this entry. The record of the justice is made up with clearness and certainty, and shows that he was not deprived of jurisdiction by the application for removal. He makes no mention of the written demand of removal which appears among the papers, and it is possible that his attention was not particularly directed to it. We cannot indulge, however, in any presumption or inference against the record, drawn from loose papers now attached to the return. In the case of Hellriegel v. Truman, 60 Wis. 253, the defect of jurisdiction was plain, and it appeared clearly and decisively from the record that, although the affidavit was made by only a part of the defendants, all of them, five in number, demanded a removal; and the same remark is true of the other cases cited by respondent’s counsel. [297] ■ For these reasons, the order of the circuit court refusing to quash the writ must be reversed, and the cause remanded to that court with directions to affirm the judgment of the justice. By the Court.— Judgment is ordered accordingly.