Billings v. Noble

Cassoday, J. The affidavit for the removal of the examination was, in the language of .the statute, “ that, from prejudice or other cause,”' the person charged believed the justice would “ not decide impartially in the matter,” etc. Sec. 4809, R. S. 1 It is said to be settled in Jenkins v. Morn [330] ing, 38 Wis. 197, that such an affidavit is sufficient and ousts the justice of jurisdiction. The application for the change of venue in that case was under a section substantially like the above section. It was sec. 3616, R. S. The affidavit of the defendant in that cause was, however, to the effect “ that, from prejudice and other causes, he ” believed the justice would “not decide impartially in the matter,” etc. By some inadvertence of the writer of the opinion in that case, or the printer, the word “ or ” was substituted for “ and.” This inadvertence may have grown out of the fact that the removal had not been denied and its refusal ■was not justified on the ground'that the affidavit was insufficient in form, but on the ground that the police justice had exclusive jurisdiction and hence that there was no authority for such removal, and, moreover, that the tender made was insufficient. The difference between the affidavit in that case and the one at bar is very marked. In that case there was an oath of “prejudice, ” and the mere addition of the words “and other causes” in no wav diminished its force. Here the affidavit is of “ prejudice or other cause.” It is in the alternative, and neither states the fact of prejudice nor any other cause, but simply that it is one or the other, without any possibility of ascertaining which. Erom aught that appears, the affidavit may have been based wholly upon something existing merely in the mind of the affiant which he regarded as some “ other cause ” than prejudice, but which in fact constituted no cause for such removal whatever. Where a part};- does not rely upon the fact of prejudice, but upon some “other cause,” then the oath or affidavit should state the facts supposed to constitute such other cause; as, for instance, that the justice [331] is a material witness on the trial, or is near of kin, as prescribed in sec. 3617, R. S. Otherwise the removal would be based wffiolly upon the mental conception of the affiant, who would thus be constituted the sole judge as to whether the facts conceived by him were sufficient in law to oust the justice of jurisdiction. Besides, in such case there would be no means of ascertaining what the facts were, thus supposed to be conceived, nor whether they were sufficient or had any real existence. “ The application must,” in the language of Dixon, C. J., be “limited to the case provided for by the statute, since to permit it to be extended to others, or to allow removal for causes not named in the statute nor in the application, would, lead to the greatest abuses and perversion of the remedy intended to be given by the legislature.” Dodge v. Barden, 33 Wis. 250. The use of the disjunctive in the affidavit in the case at bar is unlike that class of cases where every alternative stated in the language of the statute states a fact sufficient to authorize the remedy; but, as observed, it is a case where one of the alternatives may be a mere mental conception, unsupported by the statement of any facts authorizing the remedy. We are clearly of the opinion that perjury'could not be predicated upon the affidavit in question. Clifford v. State, 29 Wis. 329; Goodyear Rubber Co. v. Knapp, 61 Wis. 103. This being so, it was insufficient to oust the justice of jurisdiction. This makes it unnecessary to consider whether the justice would have been protected by reason of having acted judicially, had the affidavit been sufficient. That question was ably discussed at the bar, and the valuable briefs will be preserved in the record. It follows that the defendant, as justice of the peace, had jurisdiction, and hence there was no false imprisonment. By the Court — The judgment of the circuit court is affirmed.