State ex rel. Cazier v. Turner

Timlin, J. The relator is plaintiff in an action against Elmer W. Hart and others pending in the circuit court for Racine county before Judge William J. Tuenee. The action so pending is a suit in equity to set aside certain written instruments on the ground of fraud and for an accounting. The defendant Elmer W. Hart is a nonresident of this state and was in attendance upon said circuit court at Racine for the purpose of defending in that cause. The relator moved the circuit court to issue a writ of ne exeat, and that court on January 31, 1911, after hearing, by order denied the application for the writ. The application was renewed later and again denied on its merits. The circuit judge filed an opinion in writing stating the grounds in fact and in law for his decision. [485] Tbe record is voluminous and tbe arguments and briefs of counsel cover a wide and interesting legal field. One objection lying at tbe threshold of the proceeding in tbis court is fatal to tbe application and only that will be noticed. Tbe circuit court bas by statute (secs. 2784, 2785, Stats. 1898) and by its authority as a court of general equity jurisdiction power to issue tbis writ. It follows that it bas jurisdiction to deny tbe writ. Tbe power to issue includes tbe power to refuse to issue. A writ of ne exeat is a provisional remedy under our statute, because it is to be issued in an action at tbe time of issuing tbe summons or at any time afterward before judgment. Tbe writ of ne exeat is in tbe nature of equitable bail, issued only by tbe special order of tbe court when tbe party is about to leave its jurisdiction and make its decree ineffectual. Dean v. Smith, 23 Wis. 483. It is ancillary to tbe action in wbicb it is issued. It is analogous to an order of arrest in an action at law, wbicb is also held to be a provisional remedy. Pratt v. Page, 18 Wis. 337; Waterhouse v. Freeman, 13 Wis. 339; Jarvis v. Barrett, 14 Wis. 591; Chase v. Hill, 13 Wis. 222; Bell v. Olmsted, 18 Wis. 69. See, also, Witter v. Lyon, 34 Wis. 564, 575, and Thompson on Provisional Remedies, there referred to, cb. 6. It is neither an action nor a special proceeding. Sec. 2594, Stats. (1898). An order refusing a provisional remedy is appealable. Sec. 3069, subd. 3. Other serious objections to tbe issue of tbe writ in tbe instant case might be put forward, but tbis is enough. By the Court. — Tbe peremptory writ of mandamus is denied to tbe relator.