Western Union Railroad v. Dickson

30 Wis. 389

• Court: Wisconsin Supreme Court
• Decided: June 15, 1872
• Status: Published

Opinion

LyoN, J.

It is stated in one of the briefs, and, doubtless, correctly stated, that the circuit court dismissed the appeal, because, in the opinion of that court, the order appointing commissioners, made by the county judge, is not appealable. If that opinion is correct, the order of the circuit court must, of course, be affirmed, and this without regard to the question as to whether the order of the county judge was lawfully made, or otherwise.

No provision is made in the charter of the Racine, Janes-ville and Mississippi Railroad Company — Pr. and Local Laws of 1854, ch. 16 — (of which company the appellant is the successor,) or in the laws of 1861, ch. 175, for an appeal from an order appointing commissioners to appraise damages to owners of lands taken by the company for the purposes of its railroad, but the right to such appeal is claimed under sec. 24 of ch. 117, R. S. (Taylor’s Statutes, 1813, § 24.) That section is as follows :

“In all cases, not otherwise provided for, any person aggrieved by any order, sentence, judgment or denial óf a judge of the county court, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of the county court, within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.”

The chapter of the revised statutes- which contains the above section, is entitled “ Of County Coubts,” and prescribes and regulates the jurisdiction of such courts, and their mode of procedure in matters of the probate of wills, of guardianship, and the settlement of estates of deceased persons. The power to appoint commissioners in cases like the present, is not given in that chapter, and is not conferred upon the county judge as a part of his ordinary judicial functions. Such power is conferred upon him by special enactment, which frilly prescribes and regulates the procedure in such cases. And, as before stated, such enactment gives no appeal from any order mads by him under its provisions. The power in question being special and statutory, and not being a part of the ordinary judicial functions of the county judge, nor given by the enactment which provides for an appeal from his judgments, orders, sentences and denials, we are of the opinion that the section above quoted is not applicable to thé order under consideration, and that there is no law authorizing an appeal therefrom to thé circuit court.

Should the county judge refuse to act upon it when a proper application is made to him for the appointment of such com-missiouers, or should lie mate such appointment without proper authority, the remedy in the former case would probably be by mandamus, and in the latter by common law certiorari; and on appeal from the award of commissioners appointed by him, doubtless it would be competent for the railroad company to show that the commissioners were not lawfully appointed, and thus defeat the whole proceeding. But an appeal is purely a statutory right, and unless given by the statute, the right does not exist.

Holding, as we do, that the order of the county judge is not within the purview of chap. 117 of the revised statutes, and is not reached by the provisions of that chapter relating to appeals from orders made by the county judge, we are not called upon to decide whether such order was legally made. I will, however, venture the suggestion, upon my own responsibility, that the safer course for the respondent will be to procure an appraisal of his alleged damages, to be made by the commissioners heretofore appointed by the circuit judge.

By the Court. — Order affirmed.