Tucker v. Grover

Tatlor, J. It is objected by the learned counsel for the respondent, that no appeal will lie from the order to this court. The motion to strike the cause from the calendar of the circuit court of Milwaukee county was based upon the ground that sueh court had no authority to fry such action. The decision was an adjudication by that court that it had authority to try the same, and was therefore an order involving the merits of the aetion, within the meaning of the statute, and an appeal will lie to this eourt. See Haas v. Weinhagen, 30 Wis., 326; McLeod v. Bertschy, id., 324; Lee v. Buckheit, 49 Wis., 54. That the plaee of trial in this aetion was changed from Milwaukee county to Dodge county by the demand of the defendant, and the written consent served by the plaintiff’s attorney upon the defendant’s attorney, after such demand was made, without any further act or proceeding by either of the parties, was expressly decided by this court in the cases of Woodward v. Hanchett and Stow v. Hanchett, 52 Wis., 482, [56] after a full argument of the questions involved. It is unnecessary to again discuss the questions involved in those decisions upon this appeal. The facts presented to the court by the defendant upon his motion sho.w that the circuit court of Milwaukee county had no authority to proceed to the trial of the action without the consent of the defendant, for the reason that the place of trial had been removed from said county. It would seem absurd to hold that the defendant, by moving to strike the cause from the calendar and asking the court to adjudicate that it had no jurisdiction to try the action, and to make an order changing the place of trial to Dodge county, consented to try the case in Milwaukee county. The las.t part óf the relief asked wras wholly unnecessary to the protection of the rights of the defendant; but certainly it was no waiver of his right to have the action tried in Dodge county, and to have the order of the court striking the same from the calendar of the circuit court of Milwaukee county. The question involved is .not whether the defendant had appeared generally in the action, so as to give the court jurisdiction of his person, but whether the defendant had waived his right to have the action tried in the county of Dodge, where it was in fact pending when his motion was made. We can see nothing in the action taken by the counsel for the defendant which can by any possibility be construed into a consent to try the action in Milwaukee county. The facts in this case are entirely different from those in the cases of Montgomery v. Town of Scott, 32 Wis., 249, and Carpenter v. Shepardson, 43 Wis., 406. By the Court. — The order of the circuit court is reversed, with costs, and the eause remanded for further proceedings according to law.