History: Unity Twp. Incorporation, 1907 ?

 

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----Source: Wisconsin Supreme Court Records

 

 

SALTER v. COOK et al.

 

(Supreme Court of Wisconsin. Feb. 19. 1907.)

 

Courts — Co-obdinate Jurisdiction — Authority To Annul Order Of Another Court.

 

Where the circuit court of one county made an order for the incorporation of a village, the territory of which was partly in that county and partly In another, the circuit court of the latter county had no authority in a separate action commenced thereafter to declare the order and proceedings thereunder void, and to enjoin the election inspectors appointed under the order from holding an election to determine whether the electors in the village assented to the incorporation.

 

[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 1279.]

 

Appeal from Circuit Court Clark County; E. Ray Stevens, Judge.

 

Action by John W. Salter against L. H. Cook and others. From an order overruling a demurrer, defendants appeal. Reversed and remanded.

 

It appears from the record, and Is undisputed, that pursuant to the requisite application made to the circuit court of Marathon county In 1904 for the Incorporation of the village of Unity, comprising the territory therein described, the same being partly In the county of Marathon and partly In the county of Clark, proceedings were had therein, and, after hearing the matter, the circuit court for Marathon county, on March 14, 1905, found, as matters of fact, that such territory contained a population of more than 400 inhabitants who were residents In good faith therein, and that said territory had an area of one square mile, and that no territory was Improperly included in said village. And as conclusions of law that court determined and concluded that the proceedings for such Incorporation were legal and valid, and that the court had jurisdiction to make the order for such incorporation, and that an order should be made declaring such territory so described to be an incorporated village by the name of the "Village of Unity" if the electors therein should assent thereto In the manner provided in said order and as required by law, and therefore the court thereby directed such order to be made. Thereupon and on May 20, 100.", the circuit court of Marathon county upon proceedings

 

In said matter and due notice ordered that the territory therein described be, and the same was, thereby incorporated as a village to be known as the "Village of Unity," if the electors therein assented thereto; that the lands therein constituted 640 acres and not less than one square mile In area, and therein appointed L. H. Cook, J. A. Pettet, and J. H. Clark, three residents and electors within said territory, and defendants herein, who should perform the duties of inspectors of election to determine whether the electors therein assented to such incorporation, and that such inspectors should give notice of the time and place of holding such election. Immediately after the making and entry of said order In the circuit court of Marathon county, the plaintiff herein applied to this court and obtained a writ of certiorari that upon the return to said writ and after hearing arguments of counsel this court on April 17, 1900, held that: "An order incorporating a village under sections 854-S66, Rev. St 1898, is "a final order made in a special proceeding, and hence appealable. An appeal from an order incorporating a village under" said sections "is an adequate remedy and hence certiorari will not lie to review such an order." In re Salter, 127 Wis. 077, 106 N. W. 684. On May 25, 1906, the plaintiff commenced this action In the circuit court for Clark county against the said L. H. Cook, J. A. Pettet, and J. H. Clark, and others, to have the order of the circuit court for Marathon county dated May 20, 1905, and all subsequent proceedings thereunder declared utterly void and of no binding effect, and to perpetually enjoin the defendants from proceeding thereunder or attempting to hold such election which was noticed to be held May 26, 1906, and for a temporary Injunction and costs. To the complaint alleging such facts the defendants demurred on several grounds, among others that It appeared on the face of the complaint that the circuit court for Clark county had no Jurisdiction of the subject-matter of the action; that another action was pending between the same parties for the same cause; and that the complaint did not state facts sufficient to constitute a cause of action. From an order overruling such demurrer, the defendants bring this appeal.

 

Brown, Pradt & Genrlch (Kreutzer, Bird & Roseuberry, of counsel), for appellants. Geo. L. Jacques and Robert J. MacBride, for respondent

 

CASSODAY, C. J. (after stating the facts). Since the territory proposed to be incorporated into the vlllace of Unity was partly In the county of Marathon and partly In the county of Clark, the statute authorized the circuit court of either of these counties to take jurisdiction, and, upon proper proceedings, to order such incorporation. Section 857, Rev. St 1898. As Indicated In the foregoing statement such proceedings were instituted

 

in the circuit court for Marathon county and continued in that court until after the appointment of inspectors of election May 20, 1905, and until after the decision of this court, quashing the writ of certiorari, April 17, 1906. In re Salter, 127 Wis. 677, 100 N. W. 684.

 

The first question here presented is whether It was competent thereafter for the circuit court of Clark county In a separate action commenced May 25, 1906, to declare the order of the circuit court of Marathon county so made May 20, 1905, and all subsequent proceedings thereunder, utterly void and of no binding effect, and to perpetually enjoin the defendants from proceeding thereunder or attempting to hold such election. By a long line of decisions, commencing in 15 Wisconsin and ending only a few weeks ago, it has been repeatedly held, In effect that a Judgment or order of one circuit court will not be set aside nor restrained by another circuit court of co-ordinate jurisdiction upon a suit subsequently commenced therein. Parish v. Marvin, 15 Wis. 247; Platto v. Deuster, 22 Wis. 482; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388; Coon v. Seymour, 71 Wis. 340, 37 N. W. 243; Cardinal v. Eau Claire L. Co., 75 Wis. 404, 44 N. W. 761; Stein v. Benedict, 83 Wis. 603, 63 N. W. 891; Jackson Milling Co. v. Scott (Wis.) 110 N. W. 184, 1S6; Pleshek v. McDonnell (Wis.) 110 N. W. 269. The remedy, If any, is to be sought In the original action. In the case of proceeding for the incorporation of villages, the statute expressly provides, that "any question of the validity of such Incorporation and proceedings therefor may be tested by certiorari or by any other proper action or proceedings brought directly for the purpose of vacating or setting aside the same" within the time prescribed. Chapter 39, p. 43, Laws 1901. Of course, such remedy is to be sought in the court where the proceedings were instituted or upon appeal. It is unnecessary to consider any other question In the case.

 

The order of the circuit court Is reversed, and the cause Is remanded with direction to dismiss the complaint

 

 


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