Fatt v. Fatt

Oassoday, J. The affidavit for the change of venue was sufficient in form and substance to give the defendant an absolute right to the same under the statute. Sec. 24675 (ch. 261, Laws of 1889), and sec. 2625, S. & B. Ann. Stats. If that application was regularly made, it had the effect to oust the county court of all further jurisdiction. Rines v. Boyd, 7 Wis. 155; Hewitt v. Follett, 51 Wis. 264 N. W. Iron Co. v. Crane, 66 Wis. 569. The order entered upon that application purports to have been made by the county court at the May term thereof, and on the hearing of the plaintiff’s attorney in opposition thereto, as well as the defendant’s attorney in support thereof. Upon the face of the papers, therefore, the application appears to have been improperly denied. If the oourt actually lost jurisdiction by virtue of such application, then it did not regain it by reason of any subsequent proceeding in the case. Rines v. Boyd, 7 Wis. 155 ; Runals v. Brown, 11 Wis. 185; Hewitt v. Follett, 51 Wis. 264. True, the appeal was not perfected until October 3, 1890, but the time for taking such appeal does not appear to have then expired. The statutes fix a limit to the taking of such appeals. Sec. 3039, B. S. If the plaintiff desired to further limit the time for taking such appeal to thirty days from the service of the prescribed notice, then she should have given such notice. Sec. 3042, B. S. The defendant’s knowledge of the entry of the order did not obviate the necessity of serving such notice in order to so further limit the time for taking such appeal. Corwith v. State Bank, 18 Wis. 560; Rosenkrans v. Kline, 42 Wis. 558. Thus it appears that the defendant [636] bad the absolute right to appeal from the order at the time his appeal was perfected. This being so, we are clearly of the opinion that the county court had no authority, subsequently and at the. September term of said court, to so modify the order as to make it appear to have been made at chambers and without notice to, or hearing of, the plaintiffs counsel. Eureka, S. H. Co. v. Sloteman, 67 Wis. 124, 125; Pormann v. Frede, 72 Wis. 226. By the Gov/rt.— The order of the county court is reversed, and the cause is remanded with direction to change the venue as prayed.