
    McCormick Harvesting Machine Company, Appellant, vs. Reed, Respondent.
    
      April 17
    
    May 2, 1893.
    
    
      Garnishment: Certiorari: Appeal.
    
    An appeal cannot be taken by the main defendent in a garnishee action after the garnishee defendant has sued out and served a common-law writ of certiorari in the same action.
    APPEAL from the Circuit Court for Booh County.
    This was a garnishee proceeding in justice’s court against S. L. James in aid of an execution upon a judgment in favor of the McCormick Harvesting Machine Company against Mantrice Reed. Judgment was rendered in the garnishee proceedings against the garnishee, January 5, 1892, for $178.46 and costs. On the 23d day of January, 1892, the garnishee defendant, James, sued out a writ of certiorari from the circuit court, in the usual form, alleging loss of jurisdiction by the justice. The writ was served upon the justice on the same day, and thereafter on said day the defendant Reed filed a notice of appeal with the justice. The plaintiff moved to dismiss the appeal in the circuit court on the ground that no appeal could be taken after the writ of certiorari had been served. The motion was overruled, and from the order overruling the motion plaintiff appeals.
    The certiorari action was heard in the circuit court, and judgment rendered affirming the justice’s judgment, but upon appeal to this court, at the present term, that judgment was reversed on the ground that the justice had lost jurisdiction, and the cause was remanded to the circuit court with directions to reverse the judgment of the justice. McCormick H. M. Co. v. James, 84 Wis. 600.
    
      For the appellant there was a brief by Doe db Sutherland, and oral argument by J. B. Doe.
    
    
      F. G. Burpee,, for the respondent.
   Winslow, J.

The exact question presented is whether an appeal can be taken by the main defendant in a garnishee action after the garnishee defendant has sued out and served a common-law writ of certiorari in the same action. We think this question must be answered in the negative.

The issuance and service of the writ at once removed the entire record of the garnishee action from the justice’s court to the circuit court. Neuman v. State, 76 Wis. 112. There was nothing left for the appeal to act upon. How could the justice make a return upon the appeal of the “ testimony, proceedings, and judgment,” when the entire record of the cause had already, by the operation of the writ of certiorari, been removed from his tribunal? Again, the difficulties attending the splitting up of the action into two separate actions, one of which may be pending in one court and one in another, and in which contradictory judgments may be rendered, seem insurmountable. Legislation might, perhaps, remedy the difficulty, but until it does we think such an appeal must be held inoperative.

By the Court.— Order reversed, and cause remanded with directions to dismiss the appeal.  