Opinion
January 14, 1947. —
February 25, 1947.
ORIGINAL PROCEEDING in this court. Mandamus. Writ denied.
For the plaintiff there was a brief by Cavanagh, Stephenson, Mittelstaed Sheldon of Kenosha, attorneys, and R. Stanley Kelly of Burlington, attorney for Louise Hamm, administratrix of the estate of John Hamm, and oral argument by William A. Sheldon.
For the defendant there was a brief by Godfrey Pfeil of Elkhorn, and oral argument by Alfred L. Godfrey.
On November 19, 1946, an order was issued requiring the Hon. ARTHUR W. KOPP, circuit judge, to show cause before this court on the 14th day of January, 1947, why leave should not be granted to institute mandamus proceedings upon the petition of the relator. The order was duly served, and on the return day the parties appeared by counsel.
Upon consideration of the petition, and having heard counsel for the relator and respondent, the court was of the view that jurisdiction should be taken, whereupon it was stipulated that the petition for leave to commence the suit should stand as and for the petition in the action. Pleadings were to be filed by the respondent, briefs submitted upon both sides, and if after consideration of the arguments presented in the briefs, the court was of the view that oral argument was required, it should be ordered. If not so ordered, the matter was to be determined upon the briefs. Briefs have been filed and considered by the court.
The question for determination here is whether the judgment entered by the trial court was entered in conformity with the mandate of this court filed on the 4th day of December, 1945, in the case of Illges v. Congdon, reported in 248 Wis. 85, 20 N.W.2d 722, 21 N.W.2d 647.
Upon consideration of the mandate, which is as follows: "Judgment reversed, and cause remanded for further proceedings in accordance with this opinion," and the judgment entered by the trial court on October 7, 1946, it is held that the judgment entered complied with the mandate of this court. However, subsequent proceedings are subject to review on a second appeal. The issues which were determined in the course of the subsequent proceedings cannot be reviewed or modified on an application for writ of mandamus to compel the circuit court to enter the proper judgment. Such matters can only be considered on the second appeal. The judgment of the trial court having been entered in conformity with the mandate, the petition of the relator must be dismissed.
The judgment is not set out in full because of its length, and for the further reason that it will be considered upon the second appeal now pending in this court.
The relator argues, in support of his contention that the judgment entered by the trial court was not in conformity with the mandate, that this court in considering the evidence upon the appeal in the case of Illges v. Congdon, supra, violated the due-process clause of the Fourteenth amendment to the constitution of the United States for the reason that this court is without power to make findings of fact. This contention cannot be sustained and raises no question either under the constitution of the state of Wisconsin or the constitution of the United States.
By the Court. — The petition for writ of mandamus is denied upon the merits.