United States ex rel. Smith v. District Court

Dunn, C. J. On this application all the preliminary steps are agreed to have been properly taken, and that the answer of the district court of Milwaukee county, as respondent, presents to the consideration of this court the question, whether it had and should have exercised jurisdiction in the case of The Territory of Wisconsin against James D. Doty, John P. O’Neill and Augustus A. Bird, in an action on the case, and from the district court of Walworth county to the said district court of Milwaukee county, on change of venue, allowed on application of the plaintiffs ; it appearing in the record of the case, that one change of venue had previously been granted in the same case, on application of defendants, by the district court of Iowa county to the said district court of Walworth county. This question involves the construction of the tenth section of the ‘ ‘Act to amend an act of the statutes of 1839, entitled ‘An act concerning the supreme and district courts,’ ” [570] providing for a change of venue in civil causes. This section provides: “If either party, in any civil cause, in law or equity, which maybe pending in any district court m this Territory, shall fear that he will not receive a fair trial in the county in which such cause is pending, on account that the judge is interested or prejudiced, or is related to, or shall have been of counsel for either party, or that the adverse party has an undue influence over the minds of the inhabitants of the county where the action is pending, or that the inhabitants of such county are prejudiced against the applicant, or that a large number of the inhabitants of such county have an interest in the question involved in such suit, adverse to the applicant, so that he cannot expect a fair trial, such party may apply to the court, in term time, or to any judge in vacation by petition, setting forth the cause of application, and praying a change of venue, accompanied by an affidavit verifying the facts in the petition stated; and such court or judge, reasonable notice of the application having been given to the opposite party or his attorney, shall, if satisfied of the truth of the allegations, award a change of venue to some county where the causes complained of do not exist; and in all cases where the judge is interested, or is related to, or has been of counsel for either party, the court in term time, may award a change of venue as aforesaid in their discretion, without any application from either party.” The eleventh section provides that: “ The district court of the county to which said cause or matter shall be sent for trial, shall proceed to trial in the same manner, and to give judgment and award execution, as though the said cause had not been removed.” The tenth section, and part of the eleventh section quoted, are all of the act which bear upon the question before the court. With these provisions of the statute before us, we ai-e called upon to decide whether more than one change of venue can be allowed in the same cause. It is clear that the number of changes is not limited in [571] express terms. Then, do the spirit, intent and meaning of the provisions referred to limit the number of changes ? We are of opinion that the change is only limited when the legal cause therefor ceases to exist. Whenever a party, in any cause, can satisfy the court, or judge in vacation in the manner prescribed by law, that one of the causes for change of venue expressed in the tenth section really exists, it becomes imperative on the court or judge in vacation to order a change of venue to a county where such cause does not exist. A construction, that only one change is allowed, makes the iaw unmeaning and odiously partial. All the benefits would be extended to one party, probably the more cunning, and the other would be entirely excluded, when the law expressly provides, that either party shall have the advantages of a change, upon making out satisfactorily to the court or judge, one or more of the causes specified in the tenth section. If we determine the changes by any other rule than the real existence of the causes designated in the law, then we make it, what the legislature certainly never intended, a partial and unequal law, giving to the cunning an advantage over the plain, unsuspecting party. The first applicant derives all the benefit of the law, and the other, for whose equal protection it was made, may be seriously injured by being compelled to submit the trial of his rights to a prejudiced or interested court and jury, without remedy or relief. A learned justice has said that “this power is discretionally exercised, so as to prevent, and not to cause, a defect of justice.” 8 Black. Com. 294. We will suppose that the plaintiff in a cause pending, applies for a change of venue to some other county, upon proper ground, made out to the satisfaction of the court or judge in vacation, and the venue is changed to another county; and when the cause is called for trial, the judge suggests that he is interested with the plaintiff in the cause, or is related to him, or has been of counsel for him, in the identical matter in dispute. The judge of the court cannot exercise the discretion vested in him [572] in. such, cases by the provisions of the tenth section, for this constrnction says there has been one change and yon must try the canse. The defendant cannot object, although the law says he may, for the same construction says there has been one change of venue, not on your application it is true, but there having been one in the cause, you must now submit to have your rights investigated and decided on principles of law expounded by a judge whose interest is adverse to yours, and identical with that of the plaintiff; or a judge who is related to the plaintiff, or a judge who has been of counsel for the plaintiff in the very matter now in litigation between you and the plaintiff. A construction which would operate so oppressively on one party, and impose upon an upright judge the necessity of trying a cause against every feeling of delicacy and propriety, is certainly not sustained by the spirit, intention and obvious meaning of the act. No change of venue can be allowed, without a sufficient legal cause, made to appear satisfactorily to the court or judge in vacation. The want of a cause known to the law is the only restriction which we can recognize in the provisions of the law referred to in this opinion. We think it would have been sound policy in the legislature to have restricted the changes to one in favor of each party, on application, leaving the change at the discretion of the judge (as we now understand it to be), without limit, when either of the causes enumerated exists. It is not the province of courts to legislate, however, but to pronounce what they understand to be the law. It is insisted that the provisions in the eleventh section required the judge of the district court of Walworth county imperatively to proceed and try the cause. We do not so understand this provision of the law. The district court of Walworth was “required to proceed to trial, in the same manner, and to give judgment and award executions, as though the said cause had hot been removed.” The obvious meaning of this provision [573] is to place the cause in the district court of the county to which the venue is changed, precisely as though it had originated there, to be proceeded in as other causes in the court, without restriction or limit upon any of the legal rights of either party. The court to which the application for a change of venue is made must be satisfied of the truth of the allegations upon which the application is based, and herein consists the security against abuse, or causeless change of venue. The application may be made too late, under the rules and practice of the court, for a party may waive his right, by taking other steps in his cause. These are matters of consideration for the court applied to, and after due consideration and an order of change to another county, jurisdiction of the cause immediately attaches to the district court of that county. We are therefore, of opinion that the said district court of Milwaukee county should have entertained jurisdiction of the said action on the case by the Territory of Wisconsin against James D. Doty, John P. O’Neill, and Augustus A. Bird; and do hereby order and direct that a peremptory writ of mandamus do issue from this court directed to the district court of said Milwaukee county, commanding said court to “ proceed to the trial of said cause in the same manner, and to give judgment and award execution as though the said cause had not been removed.”