State ex rel. Winchell v. Circuit Court for Waukesha County

93 N.W. 16, 116 Wis. 253, 1903 Wisc. LEXIS 193

• Court: Wisconsin Supreme Court
• Decided: January 13, 1903
• Status: Published

Opinion

Dodge, J.

That tbe order of tbe county court changing the -venue of the action of Winchell v. Waukesha, 110 Wis. 101, 85 N. W. 668, was made after the trial had commenced, and while it was not yet fully completed, seems too obvious for debate, in the light of the decisions. Swineford v. Pomeroy, 16 Wis. 553; Cairns v. O’Bleness, 40 Wis. 469; Grobman v. Hahn, 59 Wis. 93, 11 N. W. 545; Duffy v. Hickey, 68 Wis. 380, 32 N. W. 54; Peterson v. Daniel Shaw L. Co. 93 Wis. 500, 67 N. W. 1118. Hence, of course, that order, when made, was beyond the jurisdiction of the county court and void, and, had it been called to the attention of this court by certiorari, must have been reversed. State ex rel. W. G. Taylor Co. v. Elliott, 108 Wis. 163, 84 N. W. 149. That, how'ever, was not done, but the record was allowed to be physically -transmitted to, and entered in, the circuit court, so that affirmative action became necessary to secure its remand to the •court from which it had been improperly sent. In that situation, application for such affirmative action was made, and was simply refused by the circuit court; The present writ seeks merely to review the action of the circuit court in refusing such application. That must be denied, for two entirely sufficient reasons: Eirst. That the only relief possible to accord on certiorari, namely, reversal of the order complained of, would be futile and ineffectual, and this court will not allow litigants to invoke its superintending power over inferior courts when nothing practical can be accomplished thereby. Clearly, the only act by the circuit court which can yield relator practical relief is an affirmative order remanding the record. The only process by which this court can compel •the granting of any such order is mandamus. The situation here presented is tbe converse of tbat in State ex rel. W. G. Taylor Co. v. Elliott, supra. There tbe record bad not gone from tbe proper court, and tbe reversal of an affirmative order prevented it from going, and preserved tbe status quo. Here, on tbe contrary, reversal of tbe order complained of will still leave tbe record in tbe wrong court, and tbe relator in tbe same predicament as now. Further, however, it is apparent tbat since this record cannot pass out of tbe circuit court, and! back to tbe county court, without action by tbe circuit court, such action is within its jurisdiction. In other words, tbe circuit court bad jurisdiction to entertain relator’s motion to-remand, and to consider and decide thereon. This constitutes jurisdiction. State v. Ludwig, 106 Wis. 226, 233, 82 N. W. 158. Hence tbe order denying relator’s application, now complained of, was within tbe jurisdiction of tbe circuit court, and cannot be reviewed upon certiorari. Tbat process, when addressed to other courts, reaches only tbe question of their jurisdiction. Hauser v. State, 33 Wis. 618; State ex rel. Barteau v. Circuit Court, 101 Wis. 422, 77 N. W. 745.

For these reasons, it is apparent no practical relief is obtainable upon tbe present writ, and tbe same should be quashed.

By the Court. — So ordered.