Schuetze v. Continental Life Insurance Co. of Hartford

Lyon, J. Counsel for the defendant company seeks the reversal of the order appealed from on two grounds. These are: (1) That upon presentation of the affidavits of the prejudice of the judge, and the demand that the place of trial be changed, the circuit court lost jurisdiction of the case, and hence that the order thereafter made requiring delivery of sworn copies of the papers therein named, is void. (2) That the affidavit of Mr. Clawson is insufficient to justify the making of the order. 1. The application or demand for a change of venue was thrust upon the attention of the court when it was engaged in hearing the motion of Mr. Clawson. It -was entirely out of order at that time, and the court properly refused to entertain it. This is settled by the cases of Grobman v. Hahn, 59 Wis. 93, and Allis v. M. S. Distilling Co. 67 Wis. 16. In those cases it was held that such a demand comes too late when made after the trial has commenced. The principle of the rule applies here. The demand not being made until after the healing commenced, could not properly be made until such hearing was concluded by the making of the order in question. Hence the court properly refused leave to file the affidavits of prejudice, and disregarded such demand, and the same did not interfere with the jurisdiction of the court to make the order. 2. The affidavit of Mr. Clawson, upon which the order in question was made, states that the averments in the complaint, that duly verified proofs of the death of the insured, required by the policy, had been delivered to the company, and payment demanded, were put in issue by the answer; that no copies of the same were retained; and that the originals were not in the possession of affiant or the plaintiff, but were in the possession of the defendant. We think this affidavit substantially complies with the' requirements of the statute and rule of the circuit court, governing the proceeding. R. S. sec. 4183; Circuit Court [255] Rule XIX. It sufficiently appears- therefrom, as required by sec. 2 of the rule, that the required documents are not in the possession or under the control of the plaintiff or her attorney, and that the same are necessary to enable her to prepare for trial. Also, the facts relied upon to obtain the relief sought are sufficiently stated. The necessity of the discovery sought is not directly stated in the affidavit, but it sufficiently appears from the other averments thereof. We are also of the opinion that it is competent for the attorney of the moving party to make the affidavit, in which case it is unnecessary to swear to the advice of counsel, or to state the reason why the same is not made by the party. This being purely a proceeding in the action, the attorney may be presumed to have a better knowledge than has his client of the facts necessary to be stated in the affidavit. The prayer of the affidavit is that the defendant be required to deliver to the plaintiff -sworn copies of the documents called for, and the order, in that respect, follows the petition. It is urged against the affidavit that it fails to follow the statute and rule, in that it fails to ask for an inspection and copies, or permission to take copies, of such documents. Sec. 4 of rule XIX, supra, provides two modes by which such inspection and copy, or permission to take a copy, may be accomplished. One mode is by delivering a sworn copy; the other by depositing the document with the clerk of the court. Hence the prayer for sworn copies is, in substance and effect, a prayer for an inspection and copies, or permission to take copies. This is sufficient. By the Court.— The order of the circuit court is affirmed.