State ex rel. Johnson v. Washburn

Cole, J. This was a rule directed to tbe circuit judge of tbe tenth circuit, requiring him to appear and show cause why a peremptory writ of mandamus should- not be issued, commanding him to enter an order changing the place of trial' in an action therein mentioned. It appears from the papers upon which the rule was granted, that an action for the recovery of money was commenced against the relators in the circuit court of Oconto county. The relators are all residents of Milwaukee county, and service was had upon them in that county. Before the time for answering expired, the defendants demanded in writing that the trial be had in the county in which they resided. The plaintiff refusing to consent to a change of the place of trial, application was duly made to the circuit court for an order changing the place of trial to Milwaukee county. This application was denied by the circuit court, on the ground and for the reason stated by the judge, in answer to the rule to show cause, that it. appeared that all-the transactions out of which the cause of action arose occurred in Oconto county, and that the convenience of all the plaintiff’s witnesses, and probably of the defendants’ witnesses, as well as the ends of justice, would be best promoted by retaining the cause for trial in Oconto county. Whether 'the circuit court was right in refusing to change the place of trial upon these grounds, and in the view which [100] it took of tbe various provisions of chap. 123, R. S., is a point we shall not attempt to decide upon this application. We shall assume, however, for the purposes of this application, that the defendants were entitled, under the circumstances, to have the place of trial changed to Milwaukee county, where they resided. And then the question arises, whether this court should grant a writ of mandamus commanding the circuit court to change the place of trial ? .It is objected that the order denying the motion for a change of the place of trial is appealable, and that the remedy by mandamus is not proper. We think this position is sound, and that it furnishes a most conclusive reason for denying this application. In Western Bank of Scotland v. Tallman, 15 Wis., 92, an order refusing to change the place of trial on account of the prejudice of the judge, was held to be an appealable order. See also Oatman v. Bond, 15 Wis., 20; Foster v. Bacon, 9 id., 345, and The Supervisors of Jefferson Co. v. The Supervisors of Milwaukee, 20 id., 139. It is true, in the case of The State ex rel. Brownell v. McArthur, 13 Wis., 407, this court granted a writ of mandamus commanding the circuit judge to change the place of trial; but the question was not fully considered by the court, or argued by counsel, and we are satisfied that the practice there adopted was wrong, and should not be followed. And because an order improperly refusing to change the place of trial is an appealable order, we deny the application for the writ in this case. By the Court. — Motion for a peremptory writ of mandamus denied.