State ex rel. Turner v. Circuit Court for Ozaukee County ( 1888 )

Cole, C. J.

The town of Saukville was indicted for not repairing a bridge, and was found guilty. A motion was made to set aside the verdict and for a new trial, which motion was denied, and the defendant town was sentenced to pay a fine of $250. The cause was then brought to this court on a writ of error, and the judgment of the circuit court was affirmed. On the return of the record to the circuit court the defendant made a motion, founded upon a petition and affidavits, for a new trial, which motion was granted. A common-law writ of certiorari was then issued from this court to review the order of the circuit court granting a new trial. A motion is now made to quash the writ because it was improvidently granted, and that motion is the matter to be considered. The rule is well settled in this court that the only question arising on the motion is the question of jurisdiction. Where the writ issues to review the proceedings of a court, that is the only question which will be examined, though it is otherwise when it issues to review the proceedings of officers or bodies not proceeding according to the common law. It is not necessary to cite our decisions where these principles have been adjudicated and settled.

Had, then, the circuit court power or jurisdiction to grant a new trial in this cause? For the purposes of the case, jurisdiction may be defined to be the power to hear and determine the cause or controversy before the court, or the power to grant the motion for a new trial. See Wanzer v. Howland, 10 Wis. 16; Pollard v. Wegener, 13 Wis. 569; Arnold v. Booth, 14 Wis. 180; Hauser v. State, 33 Wis. 678. Sec. 4719, R. S., reads as follows: “ The circuit court may, at the term in which the trial of any indictment or information shall be had, or within one year thereafter, and in either case before or after judgment, on the petition or motion in writing of the defendant, grant a new trial for any cause for which, by law, a new trial may be granted, or when it shall appear to the court that justice has not been done, and on such terms as the court may direct.” It appears that a proper motion was made within one year from the judgment, upon the grounds addressed to the discretion of the circuit court, and a new trial was undoubtedly granted under the special authority conferred by the above statute; and the question now is, Had the court power to grant it? We can only consider the question of the power or jurisdiction of the court in the matter, not whether it exercised that power wisely, or granted the motion on insufficient grounds, for the court may have erred, but error does not affect its jurisdiction.

This statute was probably borrowed from Massachusetts. See Pub. Stats, of Mass. 1882, ch. 114, sec. 128; Comm. v. Peck, 1 Met. 428; Comm. v. McElhaney, 111 Mass. 439; Comm. v. Scott, 123 Mass. 418. Also Terr. Stats, of "Wis. (1839), p. 377, sec. 6; E. S. 1849, oh. 149, sec. 6; E. S. 1858, ch. 180, sec. 6. We do not 'well see upon what grounds the power of the court to grant the newr trial can be denied if the provision is valid. The fact that the judgment has been affirmed by this court furnishes no sufficient reason for denying that power. It is said by the affirmance of the judgment it became a finality, a final determination of the cause and sentence of the law. That view certainly would be correct had not the legislature conferred this special authority to grant a new trial upon a proper cause shown. On affirmance of a judgment in a civil case no new trial could be granted unless the statute authorized it. Only where the statute does authorize it can a new trial after af-firmance be granted, either in a civil or criminal cause. In actions of ejectment the circuit court can grant a new trial even after affirmance by this court, and this by virtue of a statute upon the subject. Haseltine v. Simpson, 61 Wis. 427. Consequently we can perceive no sufficient grounds or reasons for denying the validity of the statute to grant a new trial after judgment has been affirmed in this court, any more in a criminal than in a civil cause. So under sec. 2832, E. S., a large discretionary power is vested in the court to relieve a party within a year from a judgment through mistake or excusable neglect. In the McElhaney Case, it was held that a new trial might be granted in a capital case after sentence of death passed and exceptions had been overruled by the supreme court, 'which was equivalent to an af-firmance of the conviction. True, in that case a new trial was refused, but still the court distinctly affirm the point stated. It may be conceded that independently of the statute the court would have no power to grant a new trial after the affirmance of the judgment. But as the statute expressly authorizes it, the circuit court may, either before or after judgment, grant a new trial within a year. This right the legislature has seen fit to extendió the convicted party, and we do not see that the provision is obnoxious to any constitutional objection. The reason and policy of this statute are stated by Mr. Justice Tayloe. in Ohms v. State, 49 Wis. 421. Chief Justice Shaw, in Comm. v. Peck, 1 Met. 428, gives some reasons in vindication of the wisdom and necessity of the statute. He says: “It may sometimes occur that from the discovery of new evidence it would be perfectly in the power of the defendant to establish his innocence by plenary evidence, if he could avail himself of an opportunity to bring it before a jury. Between the trial and sentence it might be discovered that the conviction was the result of conspiracy and perjury, which could be fully demonstrated on another trial.” It was doubtless some such considerations which induced the legislature t© enact the provision, and effect should be given to it in a proper case.

Quite an elaborate argument is made on behalf of the relator to establish the position that the court ought not to have granted a new trial on the case presented. It may be that the court erred in its decision, but for the reasons before indicated we cannot consider that point. On this writ we do not review the decision for error, but merely the question whether the court had jurisdiction to make it. Upon that point we confess we are entirely clear that the 'court, in granting a new trial, did not exceed its jurisdiction, even though it may have erred in granting the trial upon the case presented. Hauser v. State, 33 Wis. 678; In re Semlar, 41 Wis. 517. It seems hardly necessary to add that the power of the court is rested exclusively upon the authority conferred by the statute, and not upon its general jurisdiction.

It follows from these views that the motion to quash the writ must be sustained.