State ex rel. Graff v. Everett

79 N.W. 421, 103 Wis. 269, 1899 Wisc. LEXIS 207

Opinion

Maeshall, J.

It has been repeatedly held by this court that, except in particular cases of necessity, as where the board or body whose acts are sought to be reviewed is not a continuing body or has ceased to exist, a writ of certiora/ri cannot properly go to a mere ministerial officer because he is the legal custodian of the records showing the facts in regard to the action to be reviewed, but that the writ must go to the board, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing such board; and that a return by a person who is not competent to receive service of the writ and make return thereto is a nullity. State ex rel. Tibbits v. Milwaukee, 86 Wis. 376; State ex rel. Ollinger v. Manitowoc, 92 Wis. 546; State ex rel. Clancy v. McGovern, 100 Wis. 666; State ex rel. Flint v. Common Council of Fond du Lac, 42 Wis. 287. That rule governs this case. The town board was a permanent body. The writ should have been directed to the members thereof as such board. The issuance of the writ and service of it upon the clerk, and his return thereto, gave the court no jurisdiction and therefore it was properly quashed. If the court had proceeded to dispose of the matter complained of on the merits, the judgment would have been a nullity. State ex rel. Ollinger v. Manitowoc, supra.

By the Cowrt.— The order appealed from is affirmed.