McNab v. Noonan

28 Wis. 434

• Court: Wisconsin Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Tbe following opinion was filed at tbe January term, 1871:

LyoN, J.

Tbe action was commenced in tbe circuit court for Milwaukee county, for tbe purpose of a dissolution of a co-partnership between tbe parties, and an adjustment and settlement of tbe copartnership business. Tbe pleadings are in the usual form of pleadings in sucb actions; and tbe parties therein, as is quite common in sucb cases, mutually charge each other with having done the things which they ought not to have done, and left undone the things which they ought to have done, in respect to the business of the firm; and each claims that on a fair adjustment of them accounts the other will be found largely indebted to the firm. The value of the property or the amount of money in controversy in the action does not appear from the pleadings.

In the progress of the action, and before any account of the partnership business had been taken, the defendant made and filed an affidavit of the prejudice of the circuit judge, in the usual form, and in addition, stated therein that the action involved accounts between him and the firm of Noonan and McNab to the amount of over one hundred thousand dollars, and that the accounts to be investigated and passed upon therein amounted to over two hundred thousand dollars. The plaintiff thereupon filed an affidavit made by himself, in which he states that the aggregate value of all the property which has come, or which is liable to come, to the hands of the receiver in the action, is less than one hundred thousand dollars, and that his claim against the defendant is less than one hundred thousand dollars. The circuit court changed the place of trial to the Milwaukee county court. After the action reached the county court, the plaintiff, by leave of court, amended his complaint by adding thereto an averment, as follows: “that the amount of money which he claims to recover in this action from the defendant is less than one hundred thousand dollars, and that the amount of money in controversy does not exceed one hundred thousand dollars, and that the aggregate value of the property which has come, or is liable to come to the hands of the receiver, does not exceed that sum.”

The defendant answered the amended complaint, or rather such amendment, by denying that the amount of money in controversy does not éxeeed one hundred thousand dollars, and by alleging tbat bis account witb tbe firm was over $700,000 on tbe debit side, and over $700,000 on tbe credit side thereof; tbat tbe final balance bad never been determined; tbat tbe account of tbe plaintiff witb tbe firm is over $53,000, and be is credited witb only about $6,000; tbat tbe balance of tbe plaintiff’s account bas never been agreed upon; tbat tbe firm owes about $20,000; and tbat Mr. Orton claims tbat it owes bim $40,000 more. Tbe correctness of tbis last demand is not admitted, however, but on tbe contrary tbe answer claims tbat tbe true balance of accounts is tbe other way.

Tbe original complaint charged tbat tbe defendant bolds tbe legal title to certain real estate in tbe city of Milwaukee; tbat be acquired tbe greater part thereof, and erected a block of stores therein, known as Noonan’s Block, during tbe continuance of tbe co-partnership; and tbat in making such purchase and erecting such block be fraudulently used large amounts of tbe money and property of tbe firm. It also avers “ that tbe same is actually partnership property by reason of having been bought and erected witb co-partnership funds, and tbis plaintiff claims an interest therein, and tbat said Noonan bolds tbe same in trust for. said Noonan and McNab,” and prays, among other things, “ tbat said defendant may be decreed to convey to such receiver tbe said real estate hereinbefore described, on which said Noonan block is situated.”

Tbe answer to tbe amendment to tbe complaint alleges tbat such real estate is worth one hundred and five thousand dollars.

On tbe filing, of such answer, certain affidavits were read tending to show tbat such real estate was worth considerably over one hundred thousand dollars.

Tbe court allowed tbe plaintiff further to amend bis complaint by striking out tbat portion of tbe original complaint in relation to tbe Noonan block above quoted, but leaving tbe averment therein tbat tbe defendant bad fraudulently used tbe property and money of tbe firm in pmchasing tbe lots and erecting tbe block.

Tbis amendment was allowed on the first day of December, 1870, and on the next day the county court made an order directing the receiver, who had been previously appointed, to sell the real estate of the firm of Noonan & McNab. This order was made on the application of the plaintiff, and the defendant has appealed therefrom to this court. The argument in this court has been addressed mainly to these two questions :

1st. Is the statute which directs a change of venue in certain cases from the circuit court for Milwaukee county to the Milwaukee county court, a constitutional, and valid enactment? And if so,

2nd. Does it sufficiently appear in this action that the value of the property or the amount of money in controversy is within the jurisdiction of the county court?

I. It is claimed that the statute which authorizes and directs such change of the place of trial from the circuit to the county court (General Laws of 1868, ch. 87, see. 2), is in violation of art. TIL, sec. 8, of our state constitution. That section of the constitution is as follows: “ The circuit courts shall have original jurisdiction in all matters, civil and criminal, within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus., injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.”

As I understand the argument, it is, that this constitutional provision gives the circuit courts appellate jurisdiction from all inferior courts and tribunals; that the Milwaukee county court is' an inferior court or tribunal, over which the circuit court for that county must necessarily have a supervisory control, and from which it must also have appellate jurisdiction, by virtue of such provision of the constitution; and that it is absurd to Bay that tbe place of trial of an. action may be changed from the circuit court to the county court, when, upon appeal or cer-tiorari, the same action must be finally disposed of in such circuit court.

Were the premises correct, there would be much force in the argument. But the premises are not correct. In civil actions the circuit court for Milwaukee county has not appellate jurisdiction from the county court. It was so adjudged in Harrison vs. Doyle, 11 Wis., 283. It was there held that, although the legislature may provide by law for the removal of all causes by appeal from the county to the circuit court, yet the constitution does not require absolutely that it shall do so in all cases, and that a statute which authorizes appeals to be taken directly to this court from the county court, without requiring the action to pass through the circuit court, is a constitutional and valid enactment. It was stated in that case, in the opinion, which was delivered by Justice Cole, that at an earlier day, and in some case or motion, the decision of which seems not to have been reported, this court held the same doctrine, and the decision in Harrison vs. Doyle was made partly on that ground. The court thought it a proper case for the application of the rule stare decisis. If that rule was then applicable, how much stronger is the reason for its application now, after the lapse of eleven years since the last decision, during which time the principle asserted by the court has been constantly acted upon, both as a basis of legislation and as a rule of property throughout the state, to such an extent that to overrule it now would greatly disorganize our judicial system, and would seriously unsettle, and perhaps destroy, immense property rights acquired on the faith thereof.

Placing its decision in some measure upon the rule stare decisis, as before stated, the court, in Harrison v. Doyle, did not deem it necessary to discuss the principle decided, to any considerable extent; and as we have no report of the original decision to which reference has- been made, we are not fully advised of the grounds upon which the court rested' its decision in either case.

I may be permitted, therefore, in view of the importance of tbe question, and for the purpose of tbe inquiry as to whether this is a case to which the rule stare decisis ought to be applied, to present a few suggestions on the subject.

It will be observed that sec. 8 of art. YII of the constitution, above quoted, gives the circuit courts “ original jurisdiction in all matters, civil and criminal, within this state, not excepted in this constitution, and not hereafter prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same.” The remainder of the section provides the means and agencies by and through which such jurisdiction is to be exercised and enforced.

There can be no question that the legislature has the power, under this section, to restrict the original jurisdiction of the circuit courts. Such jurisdiction is given in all matters, civil and criminal, not thereafter prohibited by law. The irresistible conclusion from this language is, that, if prohibited by law, the jurisdiction, to the extent prohibited, may be taken away.

Would it be a strained construction of the language of the section to say that it permits the legislature to restrict the appellate jurisdiction of the circuit courts, as well as their original jurisdiction ? There are two methods by which such original jurisdiction may be restricted. One is where the restriction is contained in the constitution, and the other where it is imposed by law. Did the constitution, in some other portion of it, contain a restriction upon the appellate jurisdiction of the circuit courts, could it be doubted that the exception contained in sec. 8 would be held applicable to the appellate jurisdiction of those Courts, and that the restriction would be operative? Suppose a section had been inserted in the bill of rights to the effect that appeals from the judgments of justices of the peace should be taken directly to the supreme court, and it should be argued that Jhe section was repugnant to that portion of section 8 of art. YII., which provides that the circuit courts “ shall have appellate jurisdiction from all inferior courts: ” would it not be beld that the words “ not excepted in this constitution,” apply to the appellate as well as to the original jurisdiction of those-courts, and that the two provisions were not repugnant? If then the words “not excepted in this constitution” are applicable to and may operate as a restriction upon such appellate jurisdiction, why may not also the words “ not hereafter prohibited by law,” which are inserted in precisely the same connection, operate in the same manner and to the same extent ?

If the rule of construction here suggested be correct, this provision of the constitution has the same force and effect that it would have were the qualifying words transposed therein, so that the section would read as follows: “ The circuit courts shall have original jurisdiction in all matters civil and criminal, within this state, and appellate jurisdiction from all inferior courts and tribunals, not excepted in this constitution, and not hereafter prohibited by law, and a supervisory control over the same.” And if such is the true interpretation of that provision, the former decisions by this court of the questions under consideration, are manifestly correct. In that case there can be no doubt that the legislature may restrict the appellate jurisdiction of the circuit courts.

While I do not say that this is the true interpretation of the constitutional provision, I submit that the arguments in support of it are too strong to warrant us- in -overturning former decisions of this court which may have been, and probably were, based upon such interpretation. The rule stare decisis should be applied, unless the former determination is most evidently contrary to reason and law. Broom’s Legal Maxims, *112.

It must be again held, therefore, that the law which takes from the circuit court for Milwaukee county appellate jurisdiction from the Milwaukee county court in civil causes, is not in contravention of the constitution.

This disposes of the only argument which has been suggested, or which occurs to our minds,, against the validity of tbe law wbicb provides for changing tbe place of trial of certain civil actions from tbe circuit-to the county court. I know of no good reason why tbe legislature may not, in its discretion, provide by law for a change of tbe place of trial of an action from a superior to an inferior court, in any case where such superior court has not appellate jurisdiction from such inferior court of tbe same action. And even in tbe latter case, it is not entirely clear that such law would be unconstitutional. If tbe circuit court for Milwaukee county bad appellate jurisdiction from tbe county court in all civil actions, tbe law wbicb provides for changing tbe place of trial of certain civil actions from tbe circuit to tbe county court might be an unwise law, and might fail to accomplish all that it was intended to accomplish ; yet we are not prepared to say that it would, in such case, be a violation of any fundamental principle, and therefore void. But we do not decide this question.

It must be held, therefore, that tbe act wbicb provides for a change of tbe place of trial of certain civil actions from tbe circuit court for Milwaukee county to tbe Milwaukee county court, is a valid law.

II. We now come to tbe consideration of tbe other question above stated, as to whether it sufficiently appears that tbe value of tbe property or tbe amount of money in controversy in tbe action is within tbe jurisdiction of tbe county court?

This question has become of much„less importance by reason of'the enactment of chap. 152, General Laws of 1871, increasing such jurisdiction of tbe county court from one hundred thousand dollars to five millions of dollars, in all civil actions commenced after tbe passage of tbe act; provided that act is a valid law, a question wbicb we are not required to decide on this appeal, and wbicb we do not decide.

Tbe law applicable to this action, limiting tbe jurisdiction of tbe county court, is contained in tbe proviso to sec. 1 of chap. 37 of tbe General Laws of 1868, wbicb is as follows: uProvided, that tbe value of tbe property or tbe amount of money in controversy in any action in said county 'court, exclusive of costs, do not exceed' one hundred thousand dollars.” As before stated, the pleadings do not show the value of the property or the amount of money in controversy in the action; and, for the purposes of an action in the circuit court, it was not necessary that these facts should be stated in the pleadings, nor would it be reasonable to require parties to an action in that court to insert averments in their pleadings with reference to a possible application for a change of the place of trial to the county court. It may be true, as claimed by counsel for the respondent, that the abuse of the act which directs a change of the place of trial whenever a party to the action presents to the court, in which such action is pending, an affidavit of the prejudice of the judge thereof, is a public scandal, and tends to bring judicial proceedings into contempt; and it is doubtless true that much perjury is committed in making such affidavits, and judges are frequently most grievously insulted and wronged by them; yet the practice of making such applications has not yet become so common as to raise a presumption that it will be made in any given case, and to require a party to shape his pleadings with reference to the law of some other tribunal.

So, when the application was made in this case for a change of the place of trial, the pleadings did not inform the circuit court whether the county court had or had not jurisdiction of the action. The parties presented to the court their own affidavits on the subject, the plaintiff deposing to a state of facts which he claims brings the case within the jurisdiction of the county court, and the defendant deposing to a state of facts which he claims excludes such jurisdiction. The circuit court, without making a formal decision of the question of jurisdiction, sent the case to the county court, and the parties, in the manner already stated, attempted to raise and perhaps to settle the question, by amended and additional pleadings.

I do not think that the mere fact that the circuit court sent the case to the county court, is an adjudication that the county court bad jurisdiction thereof; and I think; that where the question of the jurisdiction of the county court is not settled or presented by the pleadings as they stand at the time the change of the place of trial is awarded (and such was the case here), it is correct practice to raise such question by amendment, or by additional pleadings in the county court.

. Conceding, for the purpose of this case, that the amendment to the complaint shows affirmatively that the action is within the jurisdiction of the county court (a proposition of the correctness of which I have great doubt), the amended or additional an- ■ swer of the defendant certainly states facts which, if proved, would demonstrate that the amount and value involved in the action are beyond the jurisdiction of that court to investigate and adjudicate. This additional answer, therefore, is in the nature of a plea to the jurisdiction of the court, and presents an issue which has not yet been tried, but which must be tried before the question of jurisdiction can be definitely settled.

The only question remaining to be disposed of is, whether, until such issue is tried, and until it is definitely settled that the county court has jurisdiction of the action, that court ought to make an order directing the sale of all the real estate of the firm. We are all of the opinion that the question must be resolved in the negative. Should the sale be made, and the property conveyed, and the proceeds thereof collected and applied, as it is fair to presume would be the case, and should it after-wards, upon the trial of such issue, be determined that the court had no jurisdiction of the action, the effects which might follow such determination might, and probably would, be far more disastrous than could possibly result if such sale be postponed until the question of jurisdiction is tried and determined.

We are of the opinion, therefore, that the order of the county court directing such sale should be reversed.

By the Court— So ordered.

The respondent, in person, moved for- rehearing, upon the ground tbat tbe question of jurisdiction bad been adjudicated by tbe circuit court wben it made tbe order sending tbe cause to tbe county court; and bad also been twice adjudicated by tbe county court itself, in allowing tbe amendments to tbe complaint, before tbe order bere appealed from was made.

Lyoít, J.

After a careful review of our decision upon tbis appeal, we are confirmed in tbe opinion tbat sucb decision is correct. It is proper to remark, however, tbat wben we said tbat tbe mere fact tbat tbe circuit court sent tbe case to tbe county court was not an adjudication that tbe county court bad jurisdiction thereof, we only intended to bold tbat tbis was not a final adjudication upon tbat point. It is doubtless a universal rule, tbat whenever, in tbe progress of an action, it appears tbat tbe court in which tbe same is pending has not jurisdiction of tbe subject matter thereof, sucb court can proceed no farther in tbe action. And tbis is tbe case whether tbe want of jurisdiction appears by tbe pleadings or is demonstrated by tbe evidence. Hence, although tbe circuit court may have adjudicated tbat tbe record did not show tbat tbe county court bad no jurisdiction of tbe action wben tbe application was made for a change of tbe pla.ce of trial, yet tbat could not be an adjudication tbat tbe county court bad absolute jurisdiction of tbe action.

"We are asked to give a construction to tbe clause in sec. 1, chap. 37, Laws of 1868, limiting tbe jurisdiction of tbe Milwaukee county court, and to indicate tbe correct practice in case sucb court finds tbat it has no jurisdiction of tbis action.

These points have been quite fully argued, and, although, for tbe purposes of tbe decision of tbis appeal, it was not absolutely necessary tbat tbe court should pass upon them, yet, under the circumstances of tbe case, we have concluded tbat it is proper to give an opinion thereupon. "We do not deem it necessary to enter into a discussion of these subjects, but will simply state' tbe conclusions at which we have arrived.

1st. As to tbe construction of tbe statute before mentioned,, wben applied to this action. We are of tbe opinion tbat tbe amount of tbe unadjusted accounts of tbe respective partners witb tbe firm is, “money in controversy ” in tbe action, witbin tbe meaning of tbe law, and tbat if tbe amount of sucb accounts exceeds tbe sum of one hundred thousand dollars, the county court has no jurisdiction. And in sucb case we are of tbe opinion,

2nd. Tbat sucb want of jurisdiction may be? ascertained either by tbe admission of tbe plaintiff, to be spread upon tbe record, tbat sucb accounts do exceed tbat sum, or by proofs taken before tbe court or a referee; and wben it is thus made to appear tbat tbe county court has not jurisdiction thereof, tbat court should remand tbe cause to tbe circuit court for Milwaukee county, stating in its order remanding tbe same tbe reasons therefor. Sucb adjudication will be binding upon tbe circuit court, and it will thereupon be tbe duty of tbat court to vacate its order, changing tbe place of trial to tbe county court, and to send tbe case to some other circuit court, pursuant to tbe statutes relating to tbe change of venue for tbe cause set forth in tbe affidavit of tbe defendant therefor.

Tbe motion for a rehearing must be denied.

By the Court.— Motion denied.