Vilas County news. [volume] (Eagle River, Vilas County, Wis.) 1896-1927, 1899-07-10

and it requires Judge Johnson to allow
the examination of Mr.. Plankinton by
the attorneys for the creditors. Be-
sides deciding these points bearing di-
rectly on the case, the supreme court
holds that under the experimenting
power given the supreme court by the
constitution the supreme court may by
mandamus compel an inferior court to
perform duty imposed on the inferior
court by statute when the statute does
not leave the duty to the discretion of
the inferior court. This power of in
tervention is declared to exist even in
cases where the act is within the dis
erection of the lower court, when it ap-
pears that the discretion has not been
exercised, or where there is no remedy
by appeal, or where the appeal would
not remedy the wrong, and the case is
of such Importance and the emergency
warrants the intervention.
The decision in full is as follows:
''In this case it is decided: 1. That
the account filed by the assignee July
1, 1898, is not the final report and ac-
count contemplated and required by
section 1701 revised statutes.
CA final order settling an as
signees account, under section 1701
R. S., cannot properly be made until
the duties of the trust have been prop
erly performed. GO Wis, 219)
''3-Not only was the account which
was filed July 1, 1898, not in fact a
final account under section 1901, R. S.,
but it was not SO treated in the hear
ing by the circuit court; for it APP
pears by the return that upon said
hearing, August 10, 1898, the judge of
that court expressly recognized the
same as merely an interlocutory &C
count by stating that he reserved GER
tain matters until the rendition of a
future final account by the assignee
and the winding up of the assignment
prOceedings,' and the creditors there
after acted under the belief that final
account was thereafter to be filed until
the entry of the order of May 9, 1899
without notice, which purports to ap-
prove said account as a final account
''4-No final report and account
within the meaning of the statute hav-
ing been filed, the rights of the cred
itors to have an inspection of the
books of the assignor, and an exami-
nation Of the assignor and other wit
nesses, under section 1693b, were abso-
lutte and not discretionary.
''5-Aside from the statute, the right
Of tn howe nv9T1ina tiOn
Of the assignee under oath as to his
dealings with the estate, under reas-
enable restrictions, is absolute, and a
refusal to allow such examination prior
to the approval of the final account can
only be regarded as an abuse of dis
erection.
''6-Under the experimenting power
given by the constitution this court
may by mandamus compel an inferior
court to perform duty imposed by the
| statute which is not discretionary in
it's nature and may compel action even
in cases where discretion is to be ex-
ercised, or when it clearly appears
that such discretion has not in fact
been exercised, or that action has
| D6Gu Idh0u Ill IIIdu1ISSC u1O1 u VI
duty or without semblence of legal
powers, or where it further appears
that there is no remedy by
appeal or that such remedy
if existing is entirely Inadequate and
the exigency is of such an extreme ma
ture as to Justify the interposition OF
the extraordinary experimenting pow
er of this court.
! "7.-The refusal to allow the exam
nation Of the assignee and other wit
nesses being a violation of clear duty
and the same being within the power
of this court to summarily correct by
mandamus, the order of the court be-
low purporting to confirm the said &C
count and the orders thereafter made
which in any way interfere with the
making of a proper final report by the
assignee and the filing Of objections
| thereto by the creditors, and the eX-
animation of the assignor, assignee
and other witnesses (Which orders be-
ing unappealed from are not claimed &c
be res adiudacata, and to constitute in
superable objections to the effective ex-
ercise of the power of this court by
mandamus), cannot impair or defeat
the remedy by mandamus and the court
below will be directed by peremptory
writ to vacate all such orders.
"9.-The alternative writ heretofore
| issued will be made peremptory, with
specific directions to vacate the orders
referred to in the last paragraph, it be-
ing considered that the same are in
fact void and ineffective, and to consti-
tute apparent obstacles only to the full
effect of the writ.
can opinion will be prepared and
filed in the near future more fully eX-
pressing the views of this court.
I1p,r tho nnnrt. Indictment iS ordered