State ex rel. Holz v. Wolski

Dodge, J. Tbe record before us seems to present an extremely anomalous proceeding, involving tbe utmost confu [73] sion as to tbe proper practice in mandamus. Tbe relation baying been filed, and tbe alternative writ issued, all matters going to tbe merits, whether by way of denial of the facts asserted in tbe relation, or of other defensive matter, should have been tried upon due and proper .pleadings, consisting of a return and an answer or demurrer thereto. Apparently the parties sought to try them by the ^filing of affidavits which might have been admissible in response to a motion for the issuance of the alternative writ. The more serious difficulty, however, is whether the record (for only the record is before us and can be considered) suffices to show error in entering the judgment appealed from. That record consists merely of the relation and alternative writ, the order for judgment dismissing such application, and judgment entered thereon. All other papers transmitted to us are mere surplusage, and of no authenticity or use. Error must be made to affirmatively appear, and all presumptions not negatived by the record must be indulged in favor of the correctness of the court’s action. Glover v. Wells & M. G. Co. 93 Wis. 13, 66 N. W. 799; In re Ogle’s Estate, 97 Wis. 56, 72 N. W. 389. It is, of course, possible that some facts might have been disclosed to the court upon affidavit to warrant the dismissal of the application and the alternative writ. Facts going to the jurisdiction of the court or the capacity of the relator might, perhaps, have been thus made to appear, and to warrant such action without putting the parties to the further steps of pleading. This being so, and there being neither bill of exceptions nor certificate of either court or. clerk excluding the possibility of such showing, we must assume that the motion to dismiss, recited in the order mentioned in the statement of facts, was made upon and was supported by something not brought before us. In other words, since circumstances might exist to warrant the court in making that order, and since there is no authoritative showing that they did not so exist, we must presume that they did, and that the court properly [74] ordered a dismissal of the application. If that order was rightly made, the judgment properly follows, and is supported thereby; hence no error affirmatively appears. By the Court. — Judgment affirmed.