State ex rel. Chicago & Northwestern Railway Co. v. Burnell

78 N.W. 425, 102 Wis. 232, 1899 Wisc. LEXIS 35

• Court: Wisconsin Supreme Court
• Decided: February 21, 1899
• Status: Published

Opinion

Marshall, J.

A writ of certiorari suspends the execution of the judgment or order challenged thereby. It does not vacate such judgment or order. Pending the hearing, such order or judgment remains in full force the same as in case of an appeal where the statute regarding a stay of proceedings has been complied with. In case of an appeal, the record may be retained in the court below and a certified copy be sent to this court; in case of a writ of certiorari the same course may be pursued, in fact is required to be pursued, unless an order be entered to the contrary. See Supreme Court Rule IY. The idea that a supersedeas vacates the order or judgment of the lower court pending the hearing in the court above, has no place in our system. The sole effect of it is to prevent any act being done to enforce the judgment or order affected by the stay. Notwithstanding the supersedeas or stay, the judgment or order may be pleaded or given in evidence in bar or as an estoppel, or the judgment debtor may be garnished, or any other proceedings be taken not inconsistent with the dormant status of the judgment so far as its enforcement is concerned. Neuman v. State, 76 Wis. 112; Richter v. Leiby, 99 Wis. 512; State v. Madison, 63 Me. 546.

It follows that the giving of a notice of the entry of a judgment or order, so as to set the time running within which to settle a bill of exceptions, is not a proceeding to enforce such order or judgment, and is not prevented by the issuance and service of a writ of certiorari to test the validity of snob order or judgment. That is ruled by Sexton v. Pickett, 24 Wis. 346. The circuit judge relied upon the decision in that case in refusing to sign the bill of exceptions. No reason is perceived why the decision in that case, and the facts alleged in the return, are not a complete answer to the alternative writ of mandamus. They are so considered.

The result is that the demurrer to the return to the alternative writ must be overruled, and judgment be entered dismissing such writ and for costs to be taxed against the relator.

By the Court. — ■ It is so ordered.