State ex rel. Wischstadt v. Olson

Supreme Court of Minnesota

State ex rel. Wischstadt v. Olson

57 N.W. 477, 56 Minn. 210, 1894 Minn. LEXIS 27

CourtSupreme Court of Minnesota

DecidedJanuary 15, 1894

DocketNo. 8235

StatusPublished

Cited by5 cases

This text of 57 N.W. 477 (State ex rel. Wischstadt v. Olson) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Wischstadt v. Olson, 57 N.W. 477, 56 Minn. 210, 1894 Minn. LEXIS 27 (Mich. 1894).

Pincite

Opinion

Buck, J.

When a petition is presented to a court for the issuance of a writ of certiorari, it should disclose a proper case upon its face. Russell v. Pickering, 17 Ill. 31; Lees v. Childs, 17 Mass. 351.

The law seems to be well settled that ordinarily a writ of certiorari will not be issued where the party may have adequate relief against the grievance of which he complains, and it should not be allowed or issued when there is a remedy by appeal, or some other mode of review [213]*213is given by law. State ex rel. v. Hanft, 32 Minn. 403, (23 N. W. 308;) Fall v. Moore, 45 Minn. 517, (48 N. W. 404.)

In this case the record does not show affirmatively that the relator is unable to perfect an appeal to the District Court, where he could have the question of jurisdiction and the irregularity of the anterior proceedings tried and determined. Gorman v. Supervisors, 20 Minn. 392, (Gil. 343.)

So far as the facts appear in the record, we see no reason why he could not appeal to the District Court. He refuses to accept the damages awarded him, evidently claiming more if the road is laid out legally; and, if so, why not allege the amount of such damages positively, so that the court could see whether he claimed more or less than $100 ? If he claims more than that sum as damages, then he ■certainly had the right of appeal. Instead of making this point clear by the allegation of material facts upon which he must predicate his right to the writ, he asserts his right to have it issued without regard to the amount of damages involved. Now, as he would have had this right of appeal to the District Court in case he claimed damages exceeding $100, then, if the issuance of this writ is sustained, he would have two remedies, — one by appeal and one by writ of ■certiorari, — which the law does not permit. The burden was upon him to show by sufficient facts that he had no right of appeal or other remedy given by law, and failing to do so, the writ must be quashed. As the writ was improperly allowed and issued, we do not deem it advisable, under such circumstances, to review or determine the other questions presented in the record.

Order reversed.

(Opinion published 57 N. W. Rep. 477.)

Free access — add to your briefcase to read the full text and ask questions with AI

Buck, J.

When a petition is presented to a court for the issuance of a writ of certiorari, it should disclose a proper case upon its face. Russell v. Pickering, 17 Ill. 31; Lees v. Childs, 17 Mass. 351.

The law seems to be well settled that ordinarily a writ of certiorari will not be issued where the party may have adequate relief against the grievance of which he complains, and it should not be allowed or issued when there is a remedy by appeal, or some other mode of review [213]*213is given by law. State ex rel. v. Hanft, 32 Minn. 403, (23 N. W. 308;) Fall v. Moore, 45 Minn. 517, (48 N. W. 404.)

In this case the record does not show affirmatively that the relator is unable to perfect an appeal to the District Court, where he could have the question of jurisdiction and the irregularity of the anterior proceedings tried and determined. Gorman v. Supervisors, 20 Minn. 392, (Gil. 343.)

So far as the facts appear in the record, we see no reason why he could not appeal to the District Court. He refuses to accept the damages awarded him, evidently claiming more if the road is laid out legally; and, if so, why not allege the amount of such damages positively, so that the court could see whether he claimed more or less than $100 ? If he claims more than that sum as damages, then he ■certainly had the right of appeal. Instead of making this point clear by the allegation of material facts upon which he must predicate his right to the writ, he asserts his right to have it issued without regard to the amount of damages involved. Now, as he would have had this right of appeal to the District Court in case he claimed damages exceeding $100, then, if the issuance of this writ is sustained, he would have two remedies, — one by appeal and one by writ of ■certiorari, — which the law does not permit. The burden was upon him to show by sufficient facts that he had no right of appeal or other remedy given by law, and failing to do so, the writ must be quashed. As the writ was improperly allowed and issued, we do not deem it advisable, under such circumstances, to review or determine the other questions presented in the record.

Order reversed.

(Opinion published 57 N. W. Rep. 477.)

Cite This Page — Counsel Stack

Bluebook (online)

57 N.W. 477, 56 Minn. 210, 1894 Minn. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-wischstadt-v-olson-minn-1894.

Opinion

Related

Cite This Page — Counsel Stack