Couillard v. Johnson

Dixox, 0. J. The question supposed to have been involved, but which was not, and so not decided, on the application for a mandamus in State ex rel. Johnson v. Washburn (22 Wis. 99), is now presented and must be determined. It is, whether the court erred in refusing to change the place of trial of the action from Oconto county, in which the action was commenced, to Milwaukee county, in which all of the defendants resided, and where they were served with the summons and complaint. Before the time for answering expired, the defendants demanded in writing, that the trial be had in the proper county, to wit, the county of Milwaukee. The plaintiff’s attorney having refused to change the place of trial as demanded, the defendants -thereupon answered, and afterward moved the court for an order changing it. The motion was resisted by the plaintiff, on the ground, shown by affidavit, that the cause of action arose in Oconto county, and that the convenience of witnesses and ends of justice required that it should be tried in that county. The court denied the motion, and compelled the defendants to go to trial in Oconto county. Whether this action of the court was correct or not, depends on the — 538 — construction to be given to section 6, chap. 123, R. S., which reads as follows: £ ‘ The court may change the place of trial in the following cases: ££ 1. Where the county designated for that purpose in the complaint is not the proper county. “2. Where there is reason to believe that an impartial trial cannot be had therein. ££3. When the convenience of witnesses and the ends of justice would be promoted by the change. ££4. When the parties or their attorneys shall stipulate in writing to change the place of trial.” If it is understood that, upon an application under one of these clauses, the court is limited to an examination of the facts shown in support of such application, and cannot hear evidence or inquire into the propriety of the proposed change with reference to the requirements of any of the other clauses, then the action of the court below was wrong. But if, on the other hand, it is not so understood, and the proper construction is that the court may, on motion for a change for one of the causes, hear other proofs oifered, and examine and ascertain whether there. exists any other and opposing cause of equal or greater force under . the statute, and so deny the motion, then the court below was right. The statute contains no words expressly limiting the court to an investigation of the facts stated in support of a motion made under one clause, or. prohibiting it from receiving counter affidavits, or listening at the same time to an opposing motion, made under some other clause. In New York, where they have the same statute, it has been held in some cases that a motion to change the place of trial, for the reason that the county designated in the complaint is not the proper county, cannot be opposed by the plaintiff on the ground of the convenience of witnesses. 3 Code Rep. 224; 5 How. 343. In others, the contrary doctrine has been held. Mason v. Brown, 6 How. 481. In the latter case, where the motion — 539 — was made after issue joined in the action, Judge Hab-éis decided that it could be so opposed, for the reason that “it would be an idle ceremony to change the venue to the proper county upon the application of one party, when it is made to appear by the other party that.the convenience of witnesses requires that the trial should be had in some other county.” In the present case the issue was joined before the motion was made, so that it was competent for the plaintiff to oppose the motion, or move himself, on the ground of the convenience of witnesses ; and, on mature deliberation, it seems to us that the construction put upon the statute by Judge Habéis is the true and proper one. It is a construction which, at one and the same time, gives effect to all of its provisions, and fully satisfies the reason and spirit of its requirements. It is obvious, from a reading of the statute, that the several causes for changing the place of trial are not of equal weight or importance. Some are preferred above others, and must take precedence. The place where the witnesses reside, and their convenience, is preferred to the place of residence and convenience of the defendants ; and so the latter must give way to the former. If this action had been commenced in Milwaukee county, where the defendants reside, the-place of. trial might have been, and, on application of either the plaintiff or defendants showing the same state of facts now shown in opposition to the motion, would have been changed to Oconto county, where the convenience of witnesses required. A construction of the statute by. which its provisions are thus directly carried into effect, and the action retained and trial had in the county where the statute requires, cannot, in our judgment, be very far wrong; and we are satisfied it was no error for the court below to overrule the defendants’ motion. The other errors assigned present less difficulty. As to that with respect to the question allowed to be asked of the witness. Farnsworth, whether he released any — 540 — claim lie liad, or any riglit of action lie Rad, against Jolmson (the defendant) for the logs, though it may have been strictly erroneous to allow the question in that form, yet the error was cured by the facts stated by witness in answer. He answered that he gave up to the plaintiff all his right, title and interest in the logs. Now, although a mere right of action for a tort is not in law assignable, yet personal property or chattels in possession of another, whether before or after conversion by the person possessed, may be assigned by the rightful owner. This principle is well settled. Hall v. Robinson, 4 Coms. 293; The Brig Sarah Ann, 2 Sumner, 206, 211; Robinson v. Weeks, 6 How. Pr. 161; Root v. Bonnema, 22 Wis. 539, 543. Inasmuch, therefore, as the witness answered that he released the logs themselves, and not any claim or right of action he had against the defendants for taking the logs, the form of the question becomes immaterial. Another error assigned is the instruction of the court, that it was not necessary that the plaintiff should demand the logs from the defendants. This instruction, we think, was correct. There was no conflict of evidence as to the fact that the defendants sawed, sold and disposed of the logs after the resale or transfer by Farns-worth, Mears & Co. to the plaintiff. This was a conversion by the defendants of the property of the plaintiff, and no demand was necessary. If such conversion had taken place before the resale or transfer to the plaintiff, then a demand on his part might have been necessary. Root v. Bonnema, supra. Another objection is founded on the statute of frauds, and the instruction of the court that no bill of sale was necessary, if the logs were given up by Farnsworth, Mears & Co. to the plaintiff, and charged to him on account. This instruction also, we think, was correct. The logs had not, at that time, been separated and delivered to Farnsworth, Mears & Co., under their pur — 541 — chase, and it may be a matter of some doubt, whether their title was yet complete or not. Bnt if it was, still, as the plaintiff was engaged in running the logs for the purpose of delivery when they were taken by the defendants, the possession, as between the plaintiff and Farnsworth, Mears & Co., was in the plaintiff, and no further delivery was practicable or necessary in order to take the transaction out of the statute. Another and the last objection is, that the court refused the request of the defendants to charge the jury, that if they found, from the evidence in the action, that the logs sued for were cut on lands belonging to the defendants, under an agreement with the plaintiff that he should put them in the river for the defendants, and not otherwise, then they should find for the defendants. This instruction was inapplicable to the evidence. There was no evidence of any suoh special agreement with regard to the cutting of the logs, as that assumed in the instruction. The defendant Johnson, to whom the land had been conveyed, does not so testify. And, assuming his statement of the affair, with regard to the conveyance of the land to him, to have been correct, but which was positively contradicted by the plaintiff, Couillard, he still held the land only as security for the payment of the purchase-money by Couillard to him; and whether CovAUard owed him any thing or not, was one of the questions in controversy, about which the evidence was very conflicting. The jury may have found, and probably did, that Couillard was not indebted to him, and that the purchase-money was paid without the credit of the logs in dispute, upon the account of Couil-lard with the defendants, as claimed by them ; and if this was so, then it is very clear that the defendants could not show title to the logs, and defeat the action upon this ground. After payment of the purchase-money, the logs, as well as the land, belonged to Couil-lardand the defendants were no more justified in taking — 542 — the logs than an entire stranger would, have been. The instruction was therefore wrong for this additional reason, that it assumed that the title shown by the defendants was' absolute, whereas it was conditional only, and the circumstances under which the jury were authorized to find, and might have found, that such condition had been fulfilled, and that the title of the defendants had ceased and become inoperative, were entirely omitted and withdrawn from their consideration. Such are the objections taken by the defendants to the proceedings and judgment, and such the views of this court with respect to them. We can discover no error for which the judgment should be reversed, and consequently it must be affirmed. By the Court. —Judgment affirmed.