State ex rel. Gaster v. Whitcher

Mahshaul, J. Tbe question before us for decision is not whether tbe examining magistrate committed jurisdictional error in deciding that a proper case was presented to him upon tbe complaint and tbe evidence for bolding tbe accused for trial, but whether tbe court commissioner, in tbe habeas corpus action, committed jurisdictional error in deciding that tbe examining magistrate did not commit such error. That is a situation evidently not comprehended by counsel upon either side, who probably shaped their course in tbe light of State ex rel. McCaslin v. Smith, 65 Wis. 93, 26 N. W. 258, and Wright v. Wright, 74 Wis. 439, 43 N. W. 145. A writ of certiorari reaches only jurisdictional errors, when sued out [672] to test the validity of some judicial or quasi-judicial proceeding. It has no other use, except to bring before the court a' record'material to be considered in exercising jurisdiction in deciding a matter presented by some other writ. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081. But in the case before us it was so used. A writ of hateas corpus reaches the body but not the record; it also reaches jurisdictional matters, but it does not reach the record. A writ of ceHiorari reaches the record but not the body. So when jurisdiction is obtained by the issuance of a writ of habeas corpus to bring the body of the person whose liberty is involved into court, if it be necessary to produce the record upon which his detention is based, that may be accomplished by using the writ of certiorari as an ancillary proceeding. When it is used as the foundation for jurisdiction to bring up and decide upon the validity of a judicial determination by any body or officer, jurisdictional questions only are reached, and such questions pertaining to the determination made by the officer or body particularly complained of Barnes v. Schmitz, 44 Wis. 482; Alford v. Jacobson, 46 Wis. 574, 1 N. W. 233; Slate ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; State ex rel. Augusta v. Losby, 115 Wis. 57, 67, 90 N. W. 188. The practice of testing the validity of decisions of circuit court commissioners in habeas corpus proceedings by writ of certiorari, m> question being raised other than that the commissioner did not decide right upon the merits of the application, grew up apparently unchallenged from the ancient rule, having now no place in our jurisprudence, that a person illegally restrained of his liberty may have successive writs of habeas corpus till he finally vindicates his right; that the decision upon one writ is not res judicata upon a subsequent writ involving the same matter; and that failure to decide favorably to the right to- be set at liberty, if error at all, is jurisdictional error. It must now be considered that where [673] there is jurisdiction to bear the proceedings upon the writ, error in deciding the questions involved is judicial error. In short, a judicial officer, in such a matter, has the same jurisdiction to commit error as he has in deciding a question presented in any other action. Therefore, the proceedings to obtain a review thereof must necessarily be appropriate to reach judicial, not jurisdictional errors. The last relic of the practice that all errors committed in habeas corpus proceedings are jurisdictional errors and therefore that in case of a challenge of a decision upon writ of error or certiorari a decision relievably wrong at all may properly be regarded as jurisdietionally wrong, was swept away by the statutory change giving the state as well as the accused the benefit of a writ of error to obtain a review of a judgment in a habeas corpus action before this court. Now the suing out of a writ of habeas corpus is in effect the commencement of an action wherein there is a plaintiff and defendant. The conclusion reached in the first instance, whether it be by a judge at chambers or a circuit court commissioner exercising the powers of a judge at chambers, within the jurisdiction of the officer to decide at all, is res judicata till set aside by some subsequent proceeding in the same matter according to the legal procedure for reviewing judicial errors. State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046. It is well understood, generally speaking, that a circuit court commissioner, in deciding questions which he has jurisdiction to decide, does not commit jurisdictional error merely because of reaching a wrong conclusion. A decision in a habeas corpus action now stands in no different position than one in any other proceeding. If it be desired to review it upon the merits a motion should be made in the ordinary way for a review before the circuit court. In re Hammer, 113 Wis. 96, 89 N. W. 111. If it be desired thereafter to present the question of whether the decision rendered is right, a writ of error may be sued out of this court for that purpose. [674] As no question was brought before the circuit court upon the writ of certiorari except as to whether the court commissioner committed jurisdictional error, and it is not claimed that he exceeded his jurisdiction but only that he decided wrong upon the merits in acting within such jurisdiction, manifestly-the circuit court could not legitimately have acted otherwise than to confirm his order. By the Court. — The order and judgment are affirmed.