American Loan & Trust Co. v. Bond

Oassoday, O. J. This action was brought by the plaintiff in the superior court'of Douglas county to foreclose a mortgage- on lands in that county executed by the appellant and his wife, to secure a note for $12,500 executed by the appellant. The summons and complaint are in' the usual form, and were personally served on Bond and wife at Minong, Washburn county, in this state, June 18, 1894. The defendant Josiah Bond, Jt., appeared specially, and moved to set aside such service on the ground that said superior court had no jurisdiction outside of Douglas county, nor of the action. Erom an .order denying such motion the said Josiah Bond, Jr., appeals. The land covered by the mortgage being situated in Douglas county, there can be 'no question but that ■ the circuit court for that countymight have taken jurisdiction of such foreclosure. The act creating and establishing said superior court provides, among other things, that “ such court shall have and exercise powers and jurisdiction in all civil actions and proceedings in law and equity, except as to actions and proceedings under chapter 151 of these statutes, concurrent with and equal to the jurisdiction of the circuit court of Douglas county, when the value of the property'in controversy . . . shall not exceed five million dollars.” Laws of 1893, ch. 33, sec. 2. _ The exception mentioned does' not affect this case. The same act makes the general provisions of law relating to circuit courts ánd to civil actions and proceedings therein, and the rules • of practice therein, applicable to said superior court. Id. sec. 6. Circuit courts have power to issue all writs, process,- and coriitnissions necessary to the due execution of the powers Vested in them, and as may be “ necessary to the full and complete jurisdiction of the causes and partiesand such courts and the judges thereof “ have [206] power to award all such writs, processes and commissions, throughout the state, returnable in the proper county.” N. S. sec. 2420. If the act creating and establishing the superior court of Douglas county is valid, then the statute so applicable to circuit courts is equally applicable to that court; and, since the mortgage might have been foreclosed in the circuit court, it can also be foreclosed in the superior court. But counsel contend that the act is repugnant to the constitution. They seem to rely upon sec. 2, art. VII, of the constitution, which, among other things, provides that “the legislature . . . shall have power to establish- inferior courts iu the several counties, with limited civil and criminal jurisdiction; . . . and that the legislature shall provide . . . for the election ... of the judges of inferior courts, by the qualified electors of the respective jurisdictions.” But the size of the district which elects a judge does not necessarily limit the jurisdiction of the court over which he presides. It is true the same section of the constitution expressly provides that the jurisdiction “ vested in municipal courts shall not exceed, in their respective municipalities, that of circuit courts, in their 'respective circuits.” Such municipalities undoubtedly refer to cities which may embrace only a part of the territory of a county, or, it may be, parts of the territory of two counties, as is the case with certain cities in this state. But the section studiously avoids the application of this limitation to such inferior courts. The superior court in question is an “ inferior court . . . with limited civil and criminal jurisdiction,” within the meaning of the clause of the constitution quoted. True, the constitution further provides that “ the circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law.” Art. VII, sec. 8. • Since the legislature is thus expressly authorized to cut down the original jurisdiction of the circuit courts, or any of them, it neces [207] sarily follows that it may, if nowhere prohibited by the constitution, vest some pf such original jurisdiction in .such inferior courts. In support of this, see the reasdning. of this court in Bookhout v. State, 66 Wis. 415; State v. Carpenter, 68 Wis. 165. It is to be .remembered that the constitution of this state is not so much a grant of power as. a limitation of power;' and hence the popular branch of the state government possesses all legislative powers not prohibited' hór restricted by the fundamental law. True, the same séction óf the constitution provides that the circuit courts shall have “■ appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same.” . Art. YII, sec. 8. Under this it may be claimed that‘the legislature coukhnot take away from the circuit courts such appellate jurisdiction from such- inferior courts, But the constitution also provides that, except in certain cases, the supreme court “ shall have -; appellate jurisdiction only, which shall be coextensive ivith the state,” and -“.a-general superintending control over all inferior courts.” Art. VII, sec. 3. ■ A county court is manifestly an inferior court (art.. YII, sec. 14); • and yet it has b,een held that the legislature has power to- authorize appeals in civil .causes directly from -county courts to this court. MoNal v. Noonan, 28 Wis. 434; Harrison v. Doyle, 11 Wis. 283. s We must hold that the superior court of Douglas county had jurisdiction, and hence the oi’der of that court is affirmed. ’ By the Court.— Order affirmed.