#### Jones, Respondent, vs. Providence Washington Insurance Company and others, Appellants. Frankel, Respondent, vs. American Central Insurance Company and another, Appellants.

*November 22*

November *23, 1912.*

*Supreme court: Superintending control of inferior courts: Jurisdiction of circuit court after appeal: Motion for new trial.*

1. The power of “superintending control over all inferior courts,” vested in the supreme court by sec. 3, art. VII, Const., may properly be used in aid of the appellate power when, without its use, a serious miscarriage of justice may probably occur.

2. As <a general rule, after the supreme court has fully acquired jurisdiction by appeal from a final judgment, the trial court cannot take any action affecting in any way that judgment or the exclusive power of the supreme court to deal therewith.

3. Yet, after appeal and subject to the stay of proceedings imposed in aid thereof, there still remains in the circuit court a qualified jurisdiction at least, which may be called into activity by permission of the supreme court.

4. In a serious exigency, where justice seems to require it and no other remedy is adequate, the supreme court may properly, by virtue of its power of superintending control, suspend the operation of the stay for the time being and authorize a motion for a new trial to be made and decided in the circuit court, even though the result may be to set aside the judgment appealed from.

*275Appeals from judgments of tbe circuit court for Wauke-sha county: MabtiN L. Lubck, Circuit Judge.

Tbe appellants in each case, on November 22, 1912, moved' that tbe record therein be remitted to tbe trial court.

*A. B. Barry,*for tbe appellants.

*O. B. Arinin,*for tbe respondents.

Tbe motions were granted on November 23, 1912, and the following opinion was filed December 10, 1912:

WiNsnow, C. J.

These cases having come here by appeal from judgments in favor of tbe plaintiffs on fire insurance, policies, motions are now made by tbe appellants to remit the-records in both cases to tbe trial court for a limited time, in order that tbe appellants may make motions to set aside the-verdicts and judgments and to grant new trials in that court based on affidavits setting forth very fully tbe discovery of' evidence since tbe appeals were taken, showing that tbe insured buildings were destroyed by fire deliberately set by the-insured as tbe result of a conspiracy to defraud tbe defendant insurance companies. Tbe appellants resort to this method of procuring a return of tbe records to tbe trial court instead! of dismissing their own appeals, because tbe 'judgments-against them were rendered more than sixty days since and they fear that if they dismiss their appeals they will incur tbe heavy forfeitures prescribed by sec. 1974, Stats. (Supp. 1906), against any insurance company which continues to do business without paying a judgment against it, or prosecuting ■an appeal therefrom within sixty days after tbe rendition of tbe judgment.

Tbe defendants’ counsel interposed no objection to tbe motion *;*in fact be very properly consented that tbe order might be made at once. Eut as it seemed that there might be a question of jurisdiction involved we took tim¿ before making tbe order to consider that, subject. v

*276We do not now decide whether, in case of dismissal of the •appeals, there could be a conviction under the statute cited for ■doing business pending the hearing and decision of the motion for a new trial. If the statute be construed literally it seems that there could be, and at least it is clear that there might •easily be troublesome and expensive prosecutions brought which, if successful, might compel the payment of greater .sums by way of forfeitures than the judgments here involved. The affidavits filed make a strong *prima facie*case for a new trial, and clearly the defendants ought, if possible, to be given the privilege of making their motions in the trial court without incurring the risk of losing more than they could possibly gain. These considerations have led us to carefully examine •the question whether, after an appeal has been taken from a final judgment and the record transmitted to this court, the trial court has jurisdiction to make any order in the cause which may affect the judgment, even if this court transmits ■the record to the trial court so that the same is physically present when the order is made. This court has frequently remitted the record to the trial court after an appeal has been .■duly taken in order that the court below might, on motion, correct the bill of exceptions or make other minor but necessary additions to the record, and this court has for years recognized *sub silentio*the power of the trial court, after the appeal has been duly taken and the record sent here, to make an ■entire bill of exceptions and transmit the same to this court ■by supplemental return.

These matters, however, may well be considered as merely incidental or subsidiary proceedings and perhaps of a different nature from the order which is desired in the present case, namely, an order by which the judgment appealed from will be set aside and the subject matter of the appeal practically taken from the hands of this court after it has acquired full jurisdiction of the case, and that, too, by an inferior court.

*277Tbe exact question bere presented bas not been met before so far as our investigation shows. It bas been said by tbis. court tbat “tbe appeal removes tbe subject matter, and all matters connected therewith, to-tbis court, and is henceforth within its control” *(Waterman v. Raymond,*5 Wis. 185); also that “this court . . . cannot recognize the right of tbe lower court to dispose of cases tbat have been removed to tbis court in tbe way pointed out by statute” ( *Congregation,*etc. *v. Hellstern,*105 Wis. 632, 81 N. W. 988), and that “both courts cannot have jurisdiction over the cause” *(Ott v. Boring,*131 Wis. 472, 487, 110 N. W. 824, 111 N. W. 833).

While none of tbe cases cited attempt to pass authoritatively upon tbe question before us, tbe implication is quite clear tbat tbis court bas acted generally upon tbe assumption tbat after jurisdiction bad been fully obtained bere by appeal from a final judgment tbe trial court could not take any action affecting in any way tbat judgment .or tbe exclusive power of tbis court to deal therewith.

We see no necessity for questioning tbat proposition in tbis case. Here tbe trial court bas not attempted to take any action in tbe case, but application is made to tbis court for an order transmitting tbe records to tbe trial court and directing tbat court to bear and decide a motion for new trial; no other court having power to pass upon such a motion and a sufficient showing of diligence having been made to excuse tbe delay.

If tbis court bas power to make such an order it seems that it must be by virtue of tbe constitutional grant of “a general superintending control over all inferior courts.” Sec. 3, art. YU, Const. Tbis jurisdiction has been called “high and transcendent,” and said to be as “broad as the exigency of the case demands.” *State ex rel. Fourth Nat. Bank v.*Johnson, 103 Wis. 591, 79 N. W. 1081. It is ordinarily used to compel inferior courts to take action within their powers or to *278prevent them from taking action outside of tbeir powers where there is no other adequate remedy, the exigency grave, .and the application prompt. It was clearly given to this ■court with the intention of thereby clothing the court with the most ample power to do justice in every controversy which might legitimately be brought before it. When the proper showing is made, no reason is perceived why it may not properly be used in aid of the appellate power when without its use a serious miscarriage of justice may probably occur, as in the present case.

If it be said that this is an attempt by this court to confer jurisdiction upon the circuit court when it has none by law, •the reply is that, notwithstanding the positive language used in the cases cited, it has been recognized for many years that there is a qualified jurisdiction after appeal still remaining in the circuit court which may be called into activity by permission of this court. It may be said further that nowhere do the appeal statutes say expressly or by fair implication that the trial court entirely loses jurisdiction of an action after appeal. The implications are rather the other way. An appeal is fully perfected by the giving of the notice and bond for costs, but further proceedings are not stayed in the trial court unless an undertaking to stay them be given. Even when this last named undertaking is given the effect is to stay action on the judgment or order appealed from, and the court is at liberty to proceed “upon any other matter included in the action not affected by” such judgment or order. Sec. 3066, Stats. (1898). So it is clear that jurisdiction in a qualified sense at least remains in the trial court subject to the stay of proceedings imposed in aid of the appeal.

While the question is not free from difficulty, we reach the conclusion that in a serious exigency like the present, where justice seems to require it and no other remedy is adequate, this court may properly, by virtue of its power of superin*279tending control over inferior courts, suspend tbe operation of the stay in the inferior court for the time being, and authorize a motion for new trial to be made and decided, even though the result may be to set aside the judgment appealed from.

*By the Court.*— The motions are granted.

The records having been remitted to the circuit court, that court granted the motion for a new trial in each case; and thereafter, on December 10, 1912, the appeal in each case was dismissed by stipulation, with costs against the respondent.