#### Brunson et al. v. Burnett et al.

"Writ os' error — appeal.— A writ of error, instead of an appeal, is the proper process for reviewing, in the supreme court, the proceedings of a district court on an appeal from the decision of a probate court.*

(1 *Ohand.*9.)

ERROR to tbe District Court for *Grant*County.

The proceedings in this case were originally commenced before the judge of probate of Grant county, the matter in controversy being the estate and an alleged nuncupative will of the late *Thomas P. Burnett.*From the decision of the probate judge an appeal was taken to the Grant county district court, the judge of which court (the late Territorial Chief Justice DuNN) affirmed the decision of the probate judge ; and, on this judgment or decree, a writ of error was brought to this court.

*LaMn <& Mills,*for the defendants in error,

moved to dismiss, on the ground that a writ of error did not lie on a proceeding of this character, the proper process of review being an appeal.

*S. Crawford,*for the plaintiffs in error.

*

 After tlie organization of the separate supreme court, in 1858, the decision of the circuit court for Dane county, on an appeal from the decision of the county court ibr that county, admitting to prohate the will of Edward JTisher, deceased, came before the supreme court by writ of error. Upon motion, the writ was quashed, the court holding that the proceedings could not be reviewed in that way, but only by *certio-rm'i.*A *certiorari*was accordingly issued, and the case was heard thereon and decided. *In re Edward*Fisher, 4 Wis. 254.

The supremo court thereupon adopted the following rule for reviewing such proceedings. Since the adoption of the provisions of the Code and the appeal act of I860, such proceedings have been, beyond doubt, reviewable by an appeal; yet this rule of the court has not been, in terms, revoked, and it is probable that the former method of review might still be adopted with safety:

Utile 26 told rules).

[Adopted December, 1853.]

In all cases appealed to the circuit court from the county court, and coming to this court by writ of certiorari, if the party applying for such writ shall execute to the adverse party a bond with sufficient sureties, in such sum as either of the justices of this court, or the clerk thereof, shall direct, conditioned to pay, satisfy and perform the order, decree or judgment of this court thereiu, in case the said order, judgment or decree of the circuit court shall be affirmed, the order, judgment or decree from which such appeal, is taken shall be superseded, aud all proceedings on such order, judgment or decree shall be stayed.

Rule 27.

The sufficiency of the sureties in the bond mentioned in the next preceding rule, shall be ascertained in the same manner as provided by section three of chapter one hundred and ibur of the Revised Statutes (1849).

Rule 28.

The said writ of *certioraH*shall be substantially in the following form:

STATE OE WISCONSIN,) M Supreme Court, j

*The State of Tffisconszn to the judge of the circuit court of the county*of-, *greeting:*

Whereas, it is alleged that a certain proceeding lately pending in the circuit court for the county-, before the judge thereof, in the matter of-, errors have intervened to the great damage of-; and we, being willing that justice should bo done in the premises, do command you, that you, without delay, do certify to us, under the seal of the said court, the proceeding aforesaid, together with all the orders, judgments or decrees made or rendered therein, and also that you cause to be transmitted to us all process, documents, pleadings, testimony and original papers in said proceedings. Hereof fail not.

Witness, the TIon. Edward V. WhitoN, chief justice of our said court, at Madison, this-day of-, A. D. 18 . [Seal.]

*Clerk of Supreme Court.*

*81Upon the service of such writ upon the clerk of the circuit court, the said clerk shall immediately transmit to this court a certified copy of the record in said cause, and also shall transmit all process, pleadings, documents, original papers and testi mony on file in the office of such clerk in said cause.

*80Stow, C. J.,

delivered an oral opinion denying the motion, remarking, that it was of no moment which proceeding, a writ of error or an appeal, was pursued ; that it was one of those cases where it was of more importance that the rule should be settled, than what that rule was ; and that, in the absence of authority or precedent, the court felt at liberty to adopt such a course as was deemed most expedient; and that, on the whole, a writ of error was preferable to an appeal.

Motion denied.