State ex rel. Spritka v. Parsons

The following opinion was filed January 28, 1918: Kerwin, J. The questions raised by the assignments of error are (1) whether the county court had jurisdiction; (2) error in denying appellant’s motion for postponement of trial and hearing; and (3) that the findings, order, and judgment of the county court as affirmed by the circuit court are neither warranted nor supported by the evidence. The appellant has favored us with a very exhaustive brief upon the different subjects discussed, but since the points raised have been determined by this court we need not go elsewhere for adjudication. The proceedings taken are under sec. 573/, Stats. (1898), as amended by ch. 82, Laws of 1907, which provides that, before any child shall be sent to the school in question, any relative or friend of such child shall present to the county judge of the county within which said child may be an application in writing, signed by the person presenting it, which shall state that the child named therein is dependent upon the public for support or that said child is neglected, and that it shall be the duty of the petitioner to cause the child named to be brought before such judge.for examination as to his alleged dependence. The law further provides that the judge shall investigate the facts and ascertain whether the child is dependent, its age, the names and residence of its parents, if living, and that the judge may compel the attendance of witnesses, and may re [22] quest the district attorney to attend on such examination, and that it shall be his duty to comply with such request, and that the parents or any friend of the child may appear on its behalf. The law also provides for examination of the child by a physician, and contains other provisions respecting the proceeding. It is contended under the first assignment of error that the proceeding was before the county court and that it should have been before the county judge under the law. It is true the law provides that the proceeding shall be before the county judge, and it is by no means clear from the record that it was not before the county judge. The record shows that the original petition was addressed to the county judge of Langlade county. The order committing the children does not appear to be made “by the court,” but is simply signed by the county judge. The writ of certiorari is not addressed to the county court of Langlade county, but to “John W. Parsons, County Judge of Langlade- County.” The petition of the relator for the writ of certiora/ri recites that John W. Parsons, a county judge, sitting as a magistrate, rendered the order in question. So the record seems to show that some of the proceedings were before the county judge and were so understood to be by the appellant. On the other hand, some parts of the record would indicate that some of the proceedings were before the county court. But however this may be, we are of the opinion that had the proceedings been before the county judge sitting as a court they would have been valid. It is settled in this state that the county judge has jurisdiction of such proceedings. Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W. 422. This case also settles the question that the granting of such power to the county judge is not unconstitutional. Practically the same points were raised in the Ciarle County Case as by the appellant here and were determined by this court contrary to.the appellant’s [23] contention. See Wis. Ind. School v. Clark Co., supra, pp. 662-665 inclusive. See also, on this point, 1 Wharton, Crim. Law (11th ed.) ch. XII. Counsel for appellant also contends that sec. 573/ of the statute referred to, as amended, violates certain provisions of the constitution respecting due process of law, and that it confers judicial powers upon a county judge contrary to the constitution. On this point we may also add that the questions are not new in this state, but have been determined by this court against the contention of the appellant. Milwaukee Ind. School v. Milwaukee Co. 40 Wis. 328; In re Stittgen, 110 Wis. 625, 86 N. W. 563; Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W. 422; Guardianship of Klein, 95 Wis. 246, 70 N. W. 64. It is further contended that the court erred in denying the appellant’s motion for continuance. Under this head quite a lengthy argument is made by counsel for appellant to the effect, as we understand it, that the denial of the motion for continuance was jurisdictional and unconstitutional, on the ground that the appellant was entitled to reasonable notice and an opportunity to be heard, which were denied him. Little need be said upon this subject. Whether error was committed or not in denying the application for continuance cannot be considered here. On certiorari the circuit court could only consider jurisdictional matters, and the denial of a postponement does not reach the question of jurisdiction. Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147; Estate of McCormick, 108 Wis. 234, 84 N. W. 148; Longstaff v. State, 120 Wis. 346, 97 N. W. 900; Milwaukee Ind. School v. Milwaukee Co., supra; 6 Cyc. 820. It is also urged as error that the findings and order of the county judge are neither warranted nor supported by the evidence. There is evidence to support the findings made by the county judge. The weight or credibility of this evidence cannot be reviewed on certiorañ. It is sufficient that the [24] county judge had jurisdiction to make the findings and order. Parsons v. Parsons, supra; Longstaff v. State, supra. It follows that the judgment appealed from must be affirmed. By the Court. — The judgment is affirmed. A motion for a rehearing was denied, with $25 costs, on April 8, 1913.