Booth v. Ableman , 18 Wis. 495 ( 1864 )

By the Court,

DixoN, O. J.

I know not what I can say to make the former opinion more clear or certain.’ We there said that a doctrine so anomalous as that the court had no power to inquire into and correct an abuse of its own process, could be sustained only upon the clearest authority. We also said that we had attentively examined the decisions upon which it was rested, and that we were satisfied that it was unsustained. We say so now, and furthermore that we do not hesitate about the power of the court, not only to order a return of the property, but to give judgment for its value in case a return cannot be had. It seems almost absurd to us, that the court, in such a case, should be without the power to make reparation for injuries caused by the improvident or wrongful issue or execution of its process. To make such reparation is to advance the remedy and suppress the mischief. It tends directly to discourage any improper interference with property over which the courts of another jurisdiction or sovereignty have acquired control. I do not think the making of such reparation involves any question of jurisdiction, strictly so called. Regarding it in the light of a breach of that comity, or good behaviour, which should be maintained between the courts of the two governments towards each other, I think they should always have the power of making at least a respectable apology for wrongs inadvertently committed. I am in favor of such power. It is true tbe federal supreme court has decided that the state courts have no power to persist in the wrong, when once ascertained: but that is a very different thing from deciding that they have no power to retract. Until this has been decided also, I shall hold that the state courts can retract, and not that only, but that it is their duty to do so in every instance, by placing the aggrieved party in statu quo, so far as their general jurisdiction and usual modes of proceeding will enable them. I think that the defendant’s motion for judgment for the value of the property, in case a return could not be had, should have been granted, and that the judgment or order, by which ever name it may be known, should be reversed.

Ordered accordingly, and that the cause be remanded for further proceedings according to law.