Schattschneider v. Johnson

LyoN; J. This appeal is from an order of the circuit court denying the motion of the plaintiff for a change of the place of trial of the action because of the alleged undue influence of the defendants over the people of the county in which the action is pending, and because of the prejudice of such people against the plaintiff. At a previous term of the court a similar motion had been made by the plaintiff, and denied. Affidavits were read in support of and against the last motion. These were quite voluminous, and it will serve no useful purpose to set them out at length, or to attempt to state the sub [389] stance of them. It is sufficient to saj, that, in our opinion, those read in support of the motion, considered alone, are entirely sufficient to justify, if not to require, a change of the place of trial. But the affidavits read in opposition to the motion materially weaken the force of those read to support it. Yet, considering all of the affidavits, we are inclined to think the place of trial ought to have keen changed. Certainly, had the motion been granted, this court would be slow to interfere with the ruling. It must be remembered, however, that this is a matter which rests in the sound discretion of the circuit court, and nothing short of an abuse of such discretion will justify our interposition. Ve cannot say that there was an abuse of discretion in the present case. In reaching the conclusion that the motion ought to be denied, the learned circuit judge may have been influenced by his personal observation' and knowledge, to which he might properly resort. Jackman Will Case, 27 Wis., 409; Lego v. Shaw, 38 id., 401. The former order denying a like motion is no bar to the last motion. This is one of the cases to which the doctrine of res adjuclieata is not applicable. The order refusing to change the place of trial is appealable, and it may also be reviewed on an appeal from the final judgment in the action. Haas v. Weinhagen, 30 Wis., 326. Hence the case is ruled by Hackett v. Carter, 38 id., 394. The motion may be renewed at the pleasure of the plaintiff. By the Court. — Order affirmed.