Lynes v. Eldred

Cole, J. This is an appeal from an order denying an application to change the place of trial of this action from Milwaukee to Oconto county, on the ground that the convenience of witnesses and the ends of justice would be promoted by the change. A motion for a change on this ground was first made in March, 1878, when the motion was denied, but without prejudice to the plaintiffs’ right to renew it. In October following the motion was renewed, when it was denied, “ on the [427] ground of laches in the plaintiffs in not moving sooner, upon defendant filing with the clerk of this court the stipulation offered relative to the defendant paying the fees of plaintiffs’ witnesses mentioned in the affidavit of plaintiffs used on said motion.” The affidavits upon which the respective motions were founded, state essentially the same grounds for the change. In opposition to the last motion the defendant filed his affidavit, wherein he states that several witnesses, whose names are mentioned, were necessary and material witnesses, without whose testimony he could not safely proceed to trial; “that all of said witnesses are ready and willing to attend the trial of the cause in Milwaukee county; and that the defendant intends to procure their attendance; ” further, that he could not obtain a fair and impartial trial of the cause in Oconto county, for reasons which he gives. We have thus alluded to the various proceedings in this case for the purpose of showing that we would not be justified by anything appearing in the record, in reversing the order, even if we thought that the court below denied the change for a wrong reason. We are by no means clear that the second motion was not properly denied on account of the plaintiffs’ delay in making it. But we shall not go into that question. It is sufficient to say that the granting or denying of the motion was a matter resting largely in the discretion of the court below, and we cannot say that that discretion was abused under the circumstances. We attach no importance to the stipulation relative to paying the expenses of securing the attendance of plaintiffs’ witnesses, upon which the court below seems to have laid some stress. The learned counsel for the defendant insisted that the order was not appealable. Without, however, discussing the point at this time, we remark that appeals from such orders have heretofore been entertained without question. By the Court. — The order of the circuit court is affirmed.