State ex rel. Wisconsin Power & Light Co. v. Zimmerman

Eschweiler, J. The respondent’s motion to quash the alternative writ was properly made, should be granted, and the proceedings by relator in this court dismissed. From an early time it has been recognized by this court that alternative writs of mandamus, such as here, being often hurriedly applied for and in seeming emergencies, without notice to other parties or persons interested and without argument, are generally issued unless they clearly show upon [196] their face that there is no support whatever for such writ. State ex rel. Cothren v. Lean, 9 Wis. 279, 281, the same case holding that under such situation a motion by respondent to quash the writ and proceedings because of want of proper grounds is an approved method of presenting the question and serves in the nature of a demurrer to such petition. Such a motion was entertained in State ex rel. Board of Education v. Haben, 22 Wis. 660, 662. We do not reach and shall not consider the questions here argued as to whether, under the procedural statutes, such as sec. 260.19 (1), (3), (4), regulating interpleader, and sec. 263.15 (1), (2), as to relief between codefendants and interpleaded parties, a defendant situated as was the relator here towards the city of Columbus can insist upon the granting of such an application as an absolute duty imposed on the court, or whether it merely calls for the exercise of judicial discretion. Whether absolute or discretionary, a right or a privilege, delay in applying for such relief may be sufficient reason for the denial of such application on the ground that by such delay there has been a waiver of such right or privilege. Especially is this so in such an application as here, for it is only when the duty is absolute and imposed by law upon a respondent that such writ should issue. State ex rel. Fire & Rust Proof C. Co. v. Icke, 136 Wis. 583, 585, 586, 118 N. W. 196, 20 L. R. A. n. s. 800. That delay to the injury of another party may be sufficient of itself to require a refusal of the. writ is suggested with apparent approval in State ex rel. Green Bay & M. R. Co. v. Jennings, 48 Wis. 549, 553, 4 N. W. 641. Promptness in applying for such relief is stated to be one of the required conditions for its allowance in State ex rel. Southern C. Co. v. Circuit Court, 187 Wis. 1, 4, 203 N. W. 923, 48 A. L. R. 894, citing State ex rel. Milwaukee E. R. & L. Co. v. Circuit Court, 133 Wis. 442, 113 N. W. 722. The right to such writ being entirely a discretionary one, [197] that its present issuance may lead to inequitable results is also sufficient reason for its denial. State ex rel. Horton v. Brechler, 185 Wis. 599, 608, 202 N. W. 144. All this is in accord with other authorities. U. S. ex rel. Arant v. Lane, 249 U. S. 367, 371, 39 Sup. Ct. 293; 38 Corp. Jur. 831; 18 Ruling Case Law, 335. Furthermore, even.were we to overlook the matter of delay, there would be a serious and doubtful question presented whether any proper showing is made for the issuing by us of the writ of mandamus, inasmuch as the court below, having jurisdiction to act in the matter, and having acted promptly, even though erroneously, still the writ of mandamus is not to take the place of error or appeal. State ex rel. Southern C. Co. v. Circuit Court, 187 Wis. 1, 203 N. W. 923, supra; State ex rel. Kratche v. Civil Court, 179 Wis. 270, 191 N. W. 507. See, also, State ex rel. Cooper v. Brazee, 139 Wis. 538, 541, 121 N. W. 247; State ex rel. Cazier v. Turner, 145 Wis. 484, 130 N. W. 510; State ex rel. Pfeiffer v. Taylor, Judge, 19 Wis. 566. The situation is entirely different from that presented in State ex rel. McGovern v. Williams, Circuit Judge, 136 Wis. 1, 116 N. W. 225, where the ruling of the inferior court was against’ its jurisdiction, and based upon such error there was a refusal to proceed at all in the matter there pending, and mandamus was allowed. Here there was ample opportunity for such an application after the commencement of the action in the circuit court against relator in April, the serving of its answer on May 21st, specifically setting forth the precise situation as to the city of Columbus upon which is now based the relator’s assertion that such city should be made a party, and all long prior to the case being subject to the call of the calendar and for possible immediate trial on September 19th. The matter might therefore have been properly disposed of upon prompt action and without any consequent possible or probable adjournment over the September term. For clearly, [198] in the orderly course of procedure, the city of Columbus, if made a party, would have to be allowed a reasonable time to interpose any appropriate pleading. The delay, therefore, in making application to the court in which the action was pending, to the evident detriment or injury of the plaintiff in inevitably postponing her right to a speedy trial, was sufficient justification for the respondent’s denial of the application' as and when made to him, and for our refusal to further interfere. By the Court. — Motion to quash the alternative writ of mandamus is granted, and the proceedings herein dismissed.