#### Ætna Accident & Liability Company, Appellant, vs. Lyman, Respondent.

*October 28*

December *9, 1913.*

*Appeal.and error: Constitutional law: What courts may issue writs of error.*

1. A writ of error from the circuit court for Milwaukee county will not lie to review a judgment of the civil court of said county. ,

2. Sec. 21, art. I, Const., providing that “writs of error shall never he prohibited by law,” was intended merely to preserve the right to issue the writ as it existed in the territory of Wisconsin when the constitution was adopted, and hence continues such right in the supreme coúrt only.

3. Neither the grant of appellate jurisdiction to the circuit courts nor. the grant of power to issue certain specified writs “and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions” (.sec. 8, art. VII, Const.), confers the right to issue a writ of error.

Appeal from an order of tbe circuit court for Milwaukee county: Laweence W. Halsey, Circuit Judge.

*Affirmed.*

The plaintiff in error petitioned the circuit court for Milwaukee county for a writ of error. The petition showed that on the 18th day of December, 1911, a judgment' was entered in the civil court of Milwaukee 'County in the city of Milwaukee against the petitioner in an action in which *Thomas T. Lyman*was plaintiff and the petitioner herein defendant, in which it was adjudged that the plaintiff recover of the petitioner $366.85 damages and $22.23 costs; that the judgment was rendered in an action at law; that the court in which said judgment was rendered committed error to the prejudice of the petitioner, setting forth the error and praying that a writ of error might issue to the civil couit of Milwaukee county for the correction of the errors complained of. A writ of error was issued accordingly, and afterwards on motion of *136tbe defendant in error tbe writ was dismissed. Tbe court made tbe following order:

“It is ordered that tbe writ of error heretofore issued out of tbis court and now pending, sued out by tbe *Mina, Accident & Liability Company,*plaintiff in error, on tbe 18tli day of October, 1012, against the defendant above named, *Thomas T. Lyman,*for the purpose of reviewing a judgment of tbe civil court of Milwaukee county rendered in an action wherein said *Thomas T. Lyman*was plaintiff and *Mina Accident <& Liability Company*was defendant, be and tbe same hereby is dismissed for want of jurisdiction to issue a writ of error to tbe civil court of Milwaukee county; and that tbe defendant in error have $10, tbe costs of tbis motion.”

Tbe plaintiff in error appealed from tbis order.

Eor tbe appellant there were briefs by *Quarles, Spence & Quarles,*attorneys, and *Irving A. Fish,*of counsel, and oral argument by *Mr. Fish.*

For tbe respondent there was a brief by *Lenichech, Robinson, Fairchild & Boesel,*and oral argument by *Nathaniel W. Robinson.*

Keewiw, J.

Conceding that tbe civil court of Milwaukee county is a court of record with general limited jurisdiction, we approach tbe main question here, namely, whether a writ of error from tbe circuit court for Milwaukee county will lie to review a judgment of tbe civil court.

While tbe civil court within its jurisdiction proceeds according to tbe course of tbe common law and a jury trial may be bad therein, a new trial may be awarded in tbe circuit court' on appeal from tbe civil court in a proper caso. The civil court is inferior to tbe circuit court and its proceedings may be reviewed in tbe circuit court on appeal. Cb. 549, Laws of 1909; *Eder v. Grifka,*149 Wis. 606, 136 N. W. 154; *Milwaukee v. Simons,*93 Wis. 576, 67 N. W. 922.

It is contended by appellant' that tbe judgments of tbe civil court in actions at law are such as were under tbe territorial • *137organization reviewed by writ, of error, and therefore it is argued that under onr constitution and statutes a writ of error will lie from the circuit court for Milwaukee county to the civil court of said county, the circuit court being the only court which has appellate jurisdiction over the civil court.

The argument of counsel for appellant is able and ingenious, and doubtless is as strong a showing as can be made in.support of their position. W'e are however of opinion that' the contention cannot be sustained. We are cited by appellant to some authorities in England showing the' condition of the law there before the organization of our territory. But we are not bound,by the law of England except in so far as we have adopted it as a part of. our judicial system. Sec. 13, art. XIV, Const.; *Webster v. Morris,*66 Wis. 366, 28 N. W. 353.

Sec. 21, art. I, of the constitution of Wisc.onsin provides that “writs of error shall never be prohibited by law.” This provision manifestly was intended to preserve the right to issue the writ as it existed in the territory-of Wisconsin when the constitution was adopted. *Jackson v. State,*92 Wis. 422, 66 N. W. *393; Crocker v. State,*60 Wis. 553, 19 N. W. *435; Bumbalek v. Peehl,*95 Wis. 127, 70 N. W. 71; *Buttrick v. Roy,*72 Wis. 164, 39 N. W. 345. In *Jackson v. State, supra,*this court said:

> “By the organic law of the 'territory at the time of the ádoption of the state constitution, a writ of error was allowed only from final judgments or orders in the nature of final judgment's; and this right was preserved and secured by art. I, sec. 21, of the constitution, which provides as follows: ‘Writs of error shall never be prohibited by law.’ As said by Mr. Justice LyoN in *Buttrick v. Roy,*72 Wis. 164, 39 N. W. 345, in effect, this constitutional provision renders the writ inviolate, as it existed when the constitution was adopted. . . . Such is the measure of the constitutional right to the writ, and see. 3048 is merely declaratory of the constitutional right, neither extending nor attempting to restrict it.”

*138And in *Bumbalek v. Peehl, supra,*it is said:

> “While our constitution prevents tbe legislature from prohibiting writs of error, yet that provision did not enlarge the scope of the writ' as it existed when the constitution was adopted, nor prevent the legislature from making reasonable regulations in respect to its use.”

See, also, *Gaston v. Babcock,*6 Wis. 503; *Stilwell v. Kellogg,*14 Wis. 461; *Connecticut Mut. L. Ins. Co. v. Cross,*18 Wis. 109; *Mead v. Walker, 17*Wis. 189; *Lombard v. Cowham,*34 Wis. 300; *O’Donnell v. State,*126 Wis. 599, 106 N. W. 18.

' In view *of*the foregoing adjudications in this state it is necessary to consider what the law was on the subject at the time the constitution of this, state was adopted in order to determine what writs of error “shall never be prohibited by law.”

The organic law of Wisconsin, passed in 1836, provides that the judicial power of 'the territory shall be vested in a supreme court,' district courts, probate courts, and in justices of the peace; that the supreme court shall consist of a chief justice and two associate judges; that the district courts shall be held in each of the three districts by one of the judges of the supreme „ourt, at such times and places as may be prescribed by law; that the jurisdiction of the several courts shall be as limited by law. Sec. 9. This section further provides that the supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction, and “writs of error, bills of exception, and appeals in chancery causes shall be allowed in all cases from the final decisions of the said district courts to the supreme court, under such regulations as may be prescribed by law.” It will be seen that the organic law provicjes for writs of error from the supreme court to the district court of the territory only, unless the legislature of the territory provides otherwise.

*139Territorial Taws of 1839, sec. 1, p. 196, fixes the jurisdiction of the supreme court of the territory, and provides that “the supreme court of-the territory shall have and exercise an appellate jurisdiction only, which shall extend to all matters of appeal, error or complaint • from the decisions, judgments or decrees of any of .the district courts in all matters of law or equity. . . .”

Sec. 2 provides:

> “The supreme court shall have power to issue writ's of *mandamus, quo warranto,*prohibition, error, *supersedeas, pro-cedendo,' certiorari, scire facias,*and all other writs and process -not specially provided for by statute, which may be necessary to enforce |the due administration of right and justice throughout the territory.”

Sec. 6 prescribes the jurisdiction of the district court and provides:

> “The district courts shall have original jurisdiction within their respective districts in all civil actions at law. or in equity, and appellate jurisdiction in all cases in their several districts from the probate courts, and the decisions of justices of the peace, and the judges of said courts shall be conservators of the peace; and the said courts in term time, and the judges thereof in vacation, shall have power to award throughout the territory, returnable in the proper county, writs of injunction, *ne exeat,*and all other writs and process which may be necessary to the due execution of the powers -with which they are vested; and the said courts shall respectively have power and authority to hear and determine all cases of crimes and misdemeanors of whatever kind, not cognizable by a justice of the peace, which may be committed within any county or place within their respective districts.”

So it will be seen that no power is conferred upon the district courts to issue writs of error, such writs not being “neces.sary” to the “due execution of the powers with which they are vested.”

The supreme court and circuit courts established by the *140constitution correspond to the supreme and district courts in territorial times in so far as the question of the right to issue the writ of error is concerned, therefore sec. 21, art. I, of the state constitution, which provides that writs of error shall never be prohibited by law, continues the right to issue the writ in the supreme court only. At the time of the adoption of the constitution the judicial method by which the supreme court reviewed judgments in actions at law was by writ of error, and the only method by which the district court reviewed judgments of, inferior courts was by appeal. So it seems plain that the framers of the constitution referred by sec. 21, art. I, to writs issued from the supreme court.

Counsel for appellant contends that, appellate power being conferred by the constitution on circuit courts, they have by virtue of such power authority to issue writs of error, and insists that sec. 8, art. VII, includes the power to issue writs of error, and r'elies upon *Milwaukee v. Simons,*93 Wis. 576, 67 N. W. 922, where it is said that “where the appellate jurisdiction is so vested the judgment may be reviewed on writ of error,” and *Att’y Gen. v. Railroad Cos. 35*Wis. 425, 515, where the court said: “ The framers of the constitution appear to have well understood that, with appellate jurisdiction, the court took all common-law writs applicable to it.” It will be observed, however, that in these cases the court was considering the appellate jurisdiction of the supremo court.

It is quite significant that the constitution does not in express terms grant power to the circuit court to issue a writ of error. Sec. 8, art. VII, provides:

> “The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of *habeas corpus; mandamus,*injunction, *■quo warranto, certiorari,*and all other writs necessary to carry into effect their orders, judgments and de*141crees, and give them a general control over inferior courts and jurisdictions.”

The writ of error is not mentioned in the grant' of power to the circuit courts, while other common-law writs are. “All other writs necessary t'o carry into effect their orders, judgments and decrees,” obviously .does not include writs of error. The grant of appellate jurisdiction to the circuit courts does not of itself grant the right to issue a writ of error. *State ex rel. Milwaukee Med. College v.*Chittenden, 127 Wis. 468, 107 N. W. 500; *State ex rel. Tewalt v. Pollard,*112 Wis. 232, 87 N. W. 1107; *State ex rel. McGovern v. Williams,*136 Wis. 1, 116 N. W. 225.

- In Michigan, under constitutional provisions similar to ours on' the subject, it has been held that circuit courts cannot' issue writs of error to inferior courts. Const. Mich, art. VI; Compiled Laws Mich. 1897, p. 226; *Swift v. Wayne Circuit. Judges,*64 Mich. 479, 31 N. W. 434.

In *Teller v.*Wetherell, 6 Mich. 46, at page 48 the court said: “As to the jurisdiction of the circuit court. The constitution and statutes defining and limiting its jurisdiction do not give it power in any case to issue a writ of error, and without this power a writ of error *coram vobis,*issued by that court, would be void. 20 Johns. 22; 14 id. 422.”

Counsel for appellant also cites us to the practice in New York at the time of the adoption of our constitution to the effect that writ's of error were issued by the supreme court of New York to inferior courts. But, as pointed out by the learnéd counsel .for respondent in their brief, the supreme court' of New York is what was formerly the supreme court of the colony of New York, and the first constitution of New York, adopted in 1777, did not prescribe the powers of the supreme court but recognized it' with its colonial powers. *Kanouse v.*Martin, 3 Sandf. 653; Const. N. Y. 1777, secs. 35, 41; Const. N. Y. 1822, art. V, sec. 4; Const. N. Y. 1846, art. VI, sec. 7.

*142Counsel for appellant says that in *Second Ward Bank v.*Upman, 14 Wis. 596, the right .of the circuit court to use the writ of error in a proper case was conceded by all. We do not so understand the decision. On the part of the appellant' it was contended that the county court of Milwaukee county had power to issue the writ of error *coram nobis;*•while on the part of the* respondent it was insisted that the writ of error *coram nobis*or *coram vobis*does not lie in this state. The point was left undecided.

So far as we are advised; the writ of error to remove cases from inferior courts to the circuit court for review has never been used in this state although frequent opportunities have arisen for the use of the writ. This would seem to indicate that the bar of the state has not considered that the circuit courts have such power.

The legislature established the civil court, inferior to the circuit court, and provided for an appeal to the circuit court, and review therein, in substantially the same manner as judgments of justices’ courts are reviewed. *Fred Miller B. Co. v. Milwaukee,*150 Wis. 336, 136 N. W. 151; *Milwaukee v. Simons,*93 Wis. 576, 67 N. W. 922.

The judgment of the circuit court on appeal from the civil court becomes the same as if originally entered in the circuit court and “shall thereupon become, for all purposes, the judgment of said circuit court.” Hence it could be reviewed on writ of erior by the supreme court. Ch. 549, Laws of 1909.

We are convinced that the circuit court' has no power to issue the writ, therefore the order dismissing the writ was right.

*By the Court.*— The order appealed from is affirmed.

Mabshall, J.

(concurring). This case seems to be a simple one. The vital question is plainly answered by familiar decisions of this court and of the supreme court of Michigan, by sixty years and more of practical construction *143and by tbe very language of tlie constitutional grant of power to circuit courts. Therefore I am moved to make an effort to eliminate that which seems unnecessary and may be diverting and confusing, and point out the conclusive reasons upon which I understand the decision here rests.

*Jackson v. State,*92 Wis. 422, 66 N. W. 393; *Buttrick v.*Roy, 72 Wis. 164, 39 N. W. 345, and similar cases are cited, holding that the scope of the writ of error, denial of which was prohibited by the constitution, is the same as at common law.

Why trouble ourselves about whether territorial courts which had trial jurisdiction, somewhat similar to that of our circuit courts, had authority to issue writs of error *%*It is the. prohibition of the writ which the constitution deals with, not prohibition as to any particular court. The cited cases deal with the scope of the writ, of which there is no question here, and concern only the writ as issued by this court. So, much discussion in the briefs of counsel and in the main opinion might' well have been .omitted. It rather tends to divert and confuse than enlighten.

It is said the language granting authority to circuit courts to issue writs does not mention the one in question. That is rather misleading without a companion suggestion that there is the same omission in the grant to this court, though power of the latter to issue such writs is unquestioned. It seems evident that the omission, by itself, has no significance. The general language, common to both grants, is appropriate to exclude or include writs of error, according to the function of the grant. Eliminating the environment of the two unimportant matters stated, this case comes down to a very narrow compass.

The constitutional provision that the writ of error shall not be prohibited, is a limitation on legislative power, and no infraction of it is involved here.

Can the writ of error be issued by any other court than *144this, — or even from tliis in case of the right of appeal existing, — to secure a retrial or other review ? is a different question. In respect to the major part of the question suggested, from an original standpoint, there might be some uncertainty; but the circumstance of our judicial system having been in existence upwards of sixty years without the writ of error having been considered an instrumentality of circuit courts, may well be taken, as conclusive in the negative, by practical construction, and that' the constitutional prohibition refers to use by this court and legislation to prevent it.

Since the grant to this court, by necessary implication, as has always been held, includes the right to use the writ of error in its ancient field, it must be seen that it' was such power the prohibition ivas designed to guard. As the grant of power t'o the circuit court was evidently intended to be comprehensive, including all authority to be exercised and excluding all other power, unless the defined measure of it includes, to issue “writs and t'o hear and determine the same,” in the words of the grant to this court, the power does not exist. The power is thus defined:

> “The circuit courts shall have . . . appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issiie writs of *habeas corpus, mandamus,*injunction, *quo warranto, certiorari,*and all other writs necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts and jurisdictions.” Sec. 8, art. VII, Const.

That no instrumentality was -given this court, by the constitution for exercising appellate jurisdiction was decided in *Att'y Gen. v. Railroad Cos.*35 Wis. 425, 521, and *State ex rel. Milwaukee Med. College v. Chittenden,*127 Wis. 468, 508, 107 N. W. 500, in harmony with early adjudications in Michigan, holding that sugIi jurisdiction must wait upon legislative action giving the right of appeal and providing-machinery for its exercise.

*145In *Sullivan v. Haug,*82 Mich. 548, 557, 46 N. W. 795, the Michigan court decided, as it had many times before commencing with *People ex rel. Jeschly v. Police Justice,*7 Mich. 456, that

> “When . . . the constitution clothed the circuit courts with appellate jurisdiction, it used that term in its known signification. It referred to such cases as the legislature should provide for appealing and retrial in the circuit court. As there is no writ of appeal, or process by which the circuit court can bring the cause up from the inferior court for a retrial, it is evident that this provision of the constitution contemplated legislative action in order to bring the cause within the jurisdiction of the circuit court to retry.”

Now the question of whether the constitutional grant, in general language, to use writs, includes that of error, or any other in aid of appellate jurisdiction, is ruled in the negative -by the very language of the grant, by *Att’y Gen. v. Railroad Cos.,*supra, and *State ex rel. Milwaukee Med. College v.*Chittenden, *supra.*The grant to circuit courts was to issue writs “to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions,” in other words, as said in *Att’y Gen. v. Railroad Cos.,*as an “appurtenance to their original jurisdiction.” . ’The grant to this court' was to issue writs “and to hear and determine the same.” Note that the grant to the former was for the purpose of exercising original jurisdiction while the grant to the latter is general, no use being mentioned. Thus, in the one, the use is defined and excludes appellate jurisdiction, while in the other it is not defined except by the scope of the writ. In *Att’y Gen. v. Railroad*Cos., *supra,*speaking of the distinction between the grant to circuit and that to this court, it was said that the grant to the former was for the purpose of affording instrumentalities for exercising original jurisdiction, while the grant to the latter was for jurisdiction. Note the language: “The writs are given to the circuit court as an appurtenance to their general *146original jurisdiction, to this court for jurisdiction. Those courts take the writ's with unlimited jurisdiction of them, because they have otherwise general original jurisdiction.”

To recapitulate, laying aside what might be held, if the question presented were new, that the framers of the constitution olid not intend to confer or recognize the existence of power in the circuit courts to use the writ of error, is ruled in the affirmative by more than sixty years of practical construction ; that they did not intend to grant to circuit courts power to use the writ of error as an incident of appellate jurisdiction, is ruled by the express words of the constitution limiting the use of writs to that of instrumentalities for the exercise of original jurisdiction, by the previous decisions of this court referred to, declaring and applying the law, and the decisions of the state from which our constitutional provisions on the subject were taken.

WiNSLow, O. J. I concur in the opinion of Mr. Justice MARSHALL.