Main v. McLaughlin

Cole, O. J. This action was commenced in the justice’s court by the personal service of a warrant of attachment, and. was taken by appeal to the circuit court. After the action had been pending in the circuit court nearly two years, a motion was made to change the place of trial to Milwaukee county. The motion was founded on the affidavit of [629] defendant, in which he states- that at the time of the service of the warrant upon him in Ashland county he was a resident of the county of Milwaukee, and that he had ever since been a resident of the latter county: The circuit court ordered the place of trial ehangéd to- Milwaukee county, pursuant to sec. 2624, Ti. S.1 It does hot appear that the cause had ever been noticed for trial by either side. The order appealed from recites that the two terms of court succeeding the appeal lapsed, which was doubtless the reason why no action had been taken in the cause. Such being the history of the case, we think the court was-authorized to change the place of trial under the section above referred to. See Van Kleck v. Hanchett, 51 Wis., 398. It is true, that section provides that the change shall be made upon defendant’s motion, made at the first term at which the action shall be noticed, for trial. But, as we have said, it does not appear that it was ever noticed, for trial. ¥e infer from the language of the order that the place of trial was changed at the second term actually held in Ash-land county after the appeal was taken. It is possible the court might have been justified at that term in dismissing the appeal, on motion, under sec. 3166, It. S., because not brought to hearing before the end of the second term after the return of the justice was filed, unless the delay had been excused. Howe v. Elliott, 24 Wis., 677. Be this as it may, no such motion was made. ¥e cannot think it was essential that the cause should be noticed for trial as a condition to 'the right or power of the court to grant the motion for a [630] change, on a proper application. The plain object of the statute requiring the application to be made “ at the first term at which the action shall be noticed for trial,” is to prevent unnecessary delay in bringing appeals to a' hearing. The learned counsel for the plaintiff insists that sec. 2624 should be construed as requiring the defendant to move for the change at the first term, at which the action' might or could be noticed for trial. We are not disposed to adopt that construction, because it would be changing the meaning of the statute as enacted by the legislature. Therefore we think the order must be affirmed. By the Court.— Order affirmed. Footnotes [1] Sec. 2624, E. S., reads as follows:-“The circuit court shall change the place of trial of any action, commenced before a justice of the peace by process personally served, and pending upon appeal, to the county in which the defendant resides, upon his motion made at the first term at which the action shall he noticed for trial, if it shall he shown that he was, when so served with process, a resident of such county.” — Eep. -