Cook v. McDonnell

Tayloe, J. We think the circuit court erred in dismissing the appeal under the circumstances. It is undisputed that the appellant caused the appeal to be noticed for trial on the first term after the record was filed in Brown county circuit court, and that, when the case was called at that term, the circuit judge made an order removing the case to Outagamie count}7, for the reason that the circuit judge of Brown county had been the counsel for the appellant in the action. The record says the order was made on the application of the respondent; but by whomsoever it was made, it'is apparent from the subsequent action of the learned circuit judge that he of his own motion declined to try the case for the reason above stated. Neither party caused the [333] record to be transferred to Outagamie county until in October, 1SS6, and a few days before the motion to dismiss the action was made in that court. It also appears that the record in the case was taken from the office of the clerk of the circuit court of Brown county at the time the first order for the removal of the same to Outagamie county was made, and the evidence tends very strongly to show that such record was taken from said clerk’s office by one of the attorneys for the respondent. Such record has never been returned to said office or to the office of the clerk of Outa-gamie county, and no steps had been taken by the respondent’s attorneys, to supply such missing record, until in October, 1886, at the time a motion to dismiss the appeal was made. If there has been unusual delay in bringing the appeal to affiearing, it seems to us that the fault has been with the respondent, and not on the part of the appellant. From the time it was first noticed for trial in the ,Brown county circuit court, until the motion was made to dismiss the appeal in the Outagamie circuit, there has been no term when a trial of the case could be had in either court. It is evident it could not have been tried in the Brown county circuit for two reasons: First, because the circuit judge had refused to try it on account of his connection with the case; and, second, because the respondent had lost the record of the case. The action could not have been tried in Outa-gamie county because the record had not been transferred to that county. The case is not within the rule prescribed by sec. 3766, E. S. It is evident that this section cannot be applied to a case when there is no term of the court at which the appeal could have been brought to a hearing; and the learned circuit judge, in giving his reasons for dismissing the appeal, does not invoke the provisions of this-section as the basis of his order. We do not think this case comes within the rule of the [334] statute as laid, down in sec. 2627, R. S., viz., that the order of removal becomes vacated on the failure of the party obtaining the order of removal to have the papers transmitted to the clerk of the county to which the case is removed, within twenty days- from the making of the order. The learned circuit judge of Brown county did not understand that the statute referred to applied to the case, and so made a second order of removal, when the case was again called up for action therein. We think he was right in so holding. If the section does apply to the case, then the case was improperly removed to Outagamie county on the second order; and that court never obtained jurisdiction of the case. The section provides that when the order for a change of the place of trial becomes vacated under said section, “no change for the same cause shall thereafter be made.” If it be said that the appellant might have caused the record to have been transmitted to Outagamie county, this, we think, is answered by the evidence in the case showing that such record had been removed from the office of the clerk, and lost by the respondent. Under these circumstances, we think the appellant was excused from taking any steps in the matter until the respondent either returned the record or, if he could not return it, supplied its place in the manner prescribed by law.' By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.