Ullman v. State

WiNsnow, J. The writ of error in this action recited the rendition of judgment below, and was in the form customarily used for the purpose of reviewing final judgments. As matter of fact, no judgment had been rendered below at the time of its issuance, nor was it expected to review the judgment thereby, but simply the order denying the motion for a new trial. Upon this ground, among others, the state moves to quash the writ, and the plaintiff in error meets the objection by moving to amend the writ so as to show that its purpose is simply to review the said order. Under the broad powers of amendment now possessed and exercised by the courts, even in criminal cases, we have no serious doubt of the power of this court to amend the writ as suggested (sec. 4706, Stats. 1898), but under the view we have taken of the case the amendment would be of no avail even if it were allowed. The writ of error, as guaranteed by the constitution of this state (art. I, sec. 21), lies only to a final judgment, or to an order in the nature of a final judgment. Jackson v. State, 92 Wis. 422, 66 N. W. 393. In this action a motion for a new trial was made under sec. 4719, ft. S. 18?>8, and denied, and a writ of error issued out of this court to review the order of denial. Upon motion the writ was dismissed, because the order was not a «final judgment nor an order in the nature of a final judgment. At the session of the legislature following this decision an act was passed amending sec. 4719, aforesaid, so as to allow the issuance of a writ of error to review such an order, provided the writ be applied for within two years after the date of the order. Oh. 9, 172, Laws of 1897. This amendment passed with the section into the Statutes of 1898, and is now the undoubted law. There can be little doubt, from the history [450] of the act last mentioned, that it was passed for the simple purpose of allowing a writ of error to be issued to review orders refusing a new trial which are made after judgment. That was the Jaclcson Casej and, furthermore, if the motion for new trial and the order of denial were made before judgment, the order could be reviewed upon writ of error directed to the judgment itself; hence there was no necessity for any enlargement of the power to issue the writ in this regard. However, no exception was made in the amendment. As originally passed, and as it now stands upon the statute book, it provides that “when an application for a new trial under this section shall be refused a writ of error shall ... be issued.” The previous clauses of the section provide that the motion may be made either “before or after judgment;” hence the order denying may be made before judgment. It necessarily follows that under the words of the law, which are so plain as to preclude construction, the writ may be issued to'review an order refusing a new trial when made before judgment. The absurdity of issuing the writ to review such an order when judgment has already passed at the time of the hearing in the appellate court is very apparent. Suppose the order be found erroneous arid be reversed upon the writ of error, the judgment below still stands intact and is unaffected by the reversal of the order while a new trial has been granted. The possibility of any such absurd situation arising in the course of legal proceedings should be avoided, if possible, and we are satisfied that it can be very easily avoided upon familiar principles. In case'the circuit or trial court stays proceedings after the entry of the order until a writ of error can be obtained and heard, there is no reason why the writ should not issue and be given full effect according to the language of the statute. In case, however, the final judgment is passed in the trial court before the issuance of the writ, or [451] before judgment thereon, there is abundant reason, from the very absurdity of the possible results, "why the writ should not be prosecuted to effect. The case is quite analogous to that of an appeal from an intermediate order in a civil case. It is well settled by the decisions that the right to appeal from such an order ceases •on the entry of final judgment, and this notwithstanding the statutory time has not expired. American B. H., O. & S. M. Co. v. Gurnee, 38 Wis. 533; Drake v. Scheunemann, 103 Wis. 458, 79 U. W. 749. Some of the same reasons given for this holding apply with equal or'greater force to the present case. Undoubtedly every question and exception which can be urged upon the writ of error to the order can equally be urged upon a writ of error to the final judgment. The orderly administration of justice seems to require such a limitation in the use of the writ. In case the plaintiff in ■error can prevail upon the trial court to stay proceedings until he can test the order by writ of error, he will be entitled to prosecute it just as the statute provides; in case, however, the trial court enters judgment, as it may, this -court will require the plaintiff in error to prosecute his writ 4o the judgment to the end that all questions be settled at •once and that there be no opportunity for unfortunate and unseemly complications. In either case, by this construction of the law the plaintiff in error is secured every substantial right granted by the amendment to sec. 4719'. It appearing in the present case, therefore, that judgment has been entered in the trial court, this court will not allow the present writ to be further prosecuted, blit will require the plaintiff in •error, if he desires to prosecute his exceptions in this court, to sue out a writ directed to the final judgment. By the Court. — Writ dismissed.