State ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm

243 N.W. 763, 208 Wis. 366, 1932 Wisc. LEXIS 406
CourtWisconsin Supreme Court
DecidedJune 20, 1932
StatusPublished
Cited by25 cases

This text of 243 N.W. 763 (State ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Hustisford Light, Power & Manufacturing Co. v. Grimm, 243 N.W. 763, 208 Wis. 366, 1932 Wisc. LEXIS 406 (Wis. 1932).

Opinion

Wickhem, J.

Respondent first contends that the instant case is not a proper one for the exercise of the superintend[369]*369ing power of this court, for several reasons. While denying that error was committed in ordering a compulsory reference, the gist of respondent’s contention is that the most that could be claimed is that the order for reference is erroneous, and that the superintending power should not be permitted to serve the office'of an appeal or writ of error. The order for reference'is not appealable, and it is contended that for this court to review such an order under its superintending power will be virtually to make the order appealable in a situation where the remedy by appeal from the final judgment i^ not inadequate. It is claimed that this court should not intervene, thereby suspending the trial of a cause, in order to determine the correctness of interlocutory rulings, which may be reviewed upon appeal from final judgment, and that' to do so will disorganize the judicial process in the lower courts, impair the dignity and independence of the lower courts,- and the public confidence in them. To this petitioner replies that the error complained of is something more than an' ordinary error in that it consists of a denial to defendant of its right of jury trial, and further that the order complained of, if .erroneous, as it is contended to be, will necessarily impose great hardship upon petitioner, in that it will compel petitioner in advance of a ruling by this court to submit to a long and expensive reference, thus rendering the appeal inadequate. It is contended that superintending power should be exercised in cases where a serious error will result in hardship' so great as' to make the appeal inadequate.

These contentions raise an issue of great importance. On the one hand, it is evident that this court cannot, without causing the disorganization and breakdown of the judicial machinery of the state, ■ permit trials to be suspended in every case where error on the part of the trial court is claimed, while it determines theííprópriety of the ruling. On the other hand, great burdens in the form of expense and delay, and amounting to a denial of justice, may occasion[370]*370ally be imposed upon parties should this court take the position that its superintending power will never be exercised to review the interlocutory ruling of a trial court unless the error is jurisdictional in character.

It hardly needs to be repeated that the question presented is one of judicial policy rather than one relating to the power of this court. It must be regarded as settled that by the constitutional grant of a “general superintending control over all inferior courts,” this court was endowed with a separate and independent jurisdiction, which enables and requires it, in a proper case, to control the course of ordinary litigation in such inferior courts. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 612, 79 N. W. 1081; State ex rel. Fourth Nat. Bank v. Johnson, 105 Wis. 164, 83 N. W. 320; State ex rel. Meggett v. O’Neill, 104 Wis. 227, 80 N. W. 447; State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158; State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107.

It is further established that the superintending power of this court will not be used lightly. This policy has been variously expressed. It will not be exercised where the remedy by appeal or writ of error is adequate; it will not be permitted to perform the office of an appeal; it will only be used to prevent irreparable mischief. State ex rel. Meggett v. O’Neill, supra; State ex rel. Fourth Nat. Bank v. Johnson, supra; State ex rel. Milwaukee v. Ludwig, supra; State ex rel. Tewalt v. Pollard, supra; State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N. W. 158; Petition of Pierce-Arrow Motor Car Co. 143 Wis. 282, 127 N. W. 998; State ex rel. Southern C. Co. v. Circuit Court, 187 Wis. 1, 203 N. W. 923. Neither the power nor the exercise of it as a matter of policy is limited to keeping the lower court within its jurisdiction or compelling it to act. It has been exercised in cases where the ruling of the lower court [371]*371was merely erroneous. State ex rel. Fourth Nat. Bank v. Johnson, supra; State ex rel. Brownell v. McArthur, 13 Wis. 407; State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421.

In the event that the attempt is made to invoke the superintending power to correct an error of the trial court, it is necessary to establish that an appeal from a final judgment is inadequate, and that grave hardship will follow a refusal to exercise the power. It was said in Petition of Pierce-Arrow Motor Car Co., supra, that the lower court’s duty must be plain — so plain that hardly more than a statement of facts is necessary to convince the legal mind as to the duty of the court. However, this court, in Petition of Inland Steel Co. 174 Wis. 140, 182 N. W. 917, while disavowing any intention of repudiating the Pierce-Arrow Case, as applied to the facts there present, expressed the opinion “that jurisdiction may properly be exercised though the duty of the court below may not be so plain as to permit of but one conclusion, if a careful consideration of all the facts shows that a valid service has not been made.” Hence it is concluded that the fact that the duty of the trial court in the “premises can only be determined by a careful consideration of the facts and the law applicable to the situation, is no barrier to the exercise of this power. The mere fact that the trial court’s position falls within the field of reasonable debate cannot preclude the exercise of the power unless, indeed, the matter is one within the trial court’s discretion.

Upon the question as to whether a compulsory reference erroneously ordered creates such a hardship as will warrant exercise-of the supervisory control, no categorical answer may be given, and each case must be judged upon the facts that it presents. It must be apparent that the hardship involved in rulings of the trial court must vary according to the circumstances of each case, and that no comprehensive [372]*372ruling can be made and no further guide given than that the hardship must be so great as to render the remedy by appeal or writ of error wholly inadequate. It is our conclusion that such is the situation here. , .

Assuming the ruling to be erroneous, it will not merely deprive petitioner of a jury trial, but will subject it to an unusually long, expensive, and futile trial before a referee. It is considered that there is a sufficient showing of great and irreparable hardship, and that this court may, without violating its traditional policy of intervening only upon very substantial grounds, entertain the alternative writ for the purpose of considering the propriety of the ruling. This is especially true where the question involved is in substance a preliminary question, and where the trial of the cause is not interrupted by these proceedings, in the sense that it would be had the trial court commenced to take evidence in the cause. This being the court’s view upon the propriety of issuing "the writ, it becomes necessary to consider whether the court committed error in ordering a compulsory reference.

The power of the court to order a compulsory reference is given by sec. 270.34, Stats.

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Bluebook (online)
243 N.W. 763, 208 Wis. 366, 1932 Wisc. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hustisford-light-power-manufacturing-co-v-grimm-wis-1932.