Bonnell v. Esterly

Cole, J. A motion was made to dismiss tbe appeal herein before tbe cause was reached for argument. That motion not having been decided, tbe cause was submitted in its order on tbe calendar, but without prejudice to tbe motion to dismiss. This motion, therefore, is tbe first matter we have to consider. Tbe ground of tbe motion is, that no proper undertaking has been executed and filed on tbe appeal. Tbe specific and only objection taken to tbe undertaking is, that there was no proper justification of tbe sureties therein. Tbe action was commenced in tbe circuit court of Milwaukee county, and tbe defendant and sureties reside at Whitewater, in Walworth county. Tbe sufficiency of tbe sureties was excepted to by tbe plaintiff, and thereupon after due notice thereof, tbe sureties attended and justified before tbe county judge of Jefferson county. It is claimed by the counsel making tbe motion, that tbe justification before that officer was wholly unauthorized. Our statute provides that a party may except to the sufficiency of the sureties in an undertaking on appeal, within ten days after notice of the appeal, and that “ unless they or other sureties justify before a judge of the court below or a county judge, as' prescribed for the justification of bail in case of arrest, the appeal shall be regarded as if no undertaking bad been given. § 22, chap. 139, R. S., Taylor’s Ed., p. 1643. It [551] will be seen that the language of the statute is quite general, and does not necessarily restrict the residence or localize the “ county judge ” before whom the sureties may justify. His residence is not clearly and expressly given. Is it the county judge of the county where the action is pending; or the county judge of the county where the defendant resides, or of the county where the sureties reside; or may the justification be made before any county judge in the State ? It is said the words “ a county judge ” should beconstrued to mean the county judge of the county where the action is pending; or the county judge of the county where the defendant or sureties reside; and that unless this construction is placed upon the language, the party excepting to the sufficiency of sureties, might be required to attend the justification before a county judge in some distant part of the State. But as the statute now stands, it is quite indefinite and does not expressly fix the residence of the county judge before whom the justification may be made. Tbe statute is substantially the same as the corresponding provision of the code of New York, § 841 Yoorbees Annotated Code. Butin that State the matter is regulated by a rule of court which requires the bail to justify within the county where the defendant shall have been arrested or where the bail reside. Rule 5 of Sup. Court; Voorhees Code, supra., p. 696. And we think it is competent for this court in the same way to regulate the practice by rule, inasmuch as the statute does not itself prescribe the particular county judge before whom the sureties must go to justify. We shall therefore bold the justification in the present case sufficient, since-the statute does not expressly determine the county judge with reference to bis location, and adopt a rule to regulate the practice in future. Tbe motion to dismiss the appeal is denied. Tbe appeal is from an order denying the defendant’s motion to change the place of trial to Walworth county, where the defendant resided. Before the time for answering bad expired, and before issue joined in the action, the defendant served [552] upon tbe plaintiff's attorney a demand in writing, that the place of trial should be changed to the proper county. The plaintiff not consenting to such change, application was made to the court. And on the hearing of the motion in court, the plaintiff, by way of cross-motion, moved the court to retain the cause for trial in Milwaukee county, on the ground that the convenience of his witnesses would be better served by retaining the cause for trial in that county, where the plaintiff resided, and where the principal transactions occurred, out of which the cause of action arose, and supported this motion by a number of affidavits. The defendant objected to the court’s hearing the plaintiff’s motion at that stage of the cause, and it seems to us it was irregular to do so. Eor, until the answer came in, it was impossible for the plaintiff to know what the defense would be, and what witnesses he would need. The statute gave the defendant the right to have the venue changed — section 6, chapter 123, R. S., Taylor’s Ed., p. 1424 — and he made the necessary and proper demand therefor. Issue had not been joined, and it seems to us manifestly improper, in the condition the cause was in, for the court to go into inquiry, whether the convenience of witnesses required that the trial should be had in Milwaukee county. How the plaintiff could have known what witnesses he would want to sustain his action before the defendant answered, we cannot imagine. It is very true that the defendant himself introduced his own affidavit in opposition to the motion of the plaintiff, in which he stated, that he required a large number of witnesses to prove his defense, who were business men residing at Whitewater, and that the convenience of these witnesses and the ends of justice would be subserved by the trial of the cause in Walworth county, but still, the nature and character of the defense were not disclosed. But it seems to us, that this whole matter was improperly gone into at that stage of the cause, before the defendant answered, and before it could possibly be known what issues would be for trial in the action. At most, the plaintiff could only con [553] jecture as to tbe nature of tbe defense and wbat facts be would be required to prove. He certainly could not know wbat witnesses be would want until tbe nature of tbe defense was disclosed. After tbe issues are joined, then if it should appear tbat tbe convenience of witnesses and ends of justice would be promoted by tbe trial of the cause in Milwaukee county, it could be sent to tbat county for trial. Couillard v. Johnson, 24 Wis., 533. But at this stage of the cause it was irregular to go into tbat inquiry. Tbe statute above referred to gave defendant tbe right to have tbe place of trial changed on bis demand, and stayed all proceedings in tbe action until bis application was disposed of. By the Court. — Tbe order of tbe circuit court, refusing to change tbe place of trial, is reversed, and tbe cause is remanded with directions to grant tbe application. bule adopted. Whenever bail are required to justify, they shall justify within tbe county where tbe defendant shall have been arrested, or where tbe action is pending, or where tbe bail reside. This rule shall also apply to tbe justification of sureties in an undertaking on appeal or otherwise.