Bantley v. Stowell

Winslow, J- The statute provides that upon the filing of an affidavit of prejudice of the judge, after a continuance in an action granted upon application of the party filing such affidavit, the venue shall be changed only upon payment of the costs of making such change and the costs of the term. R. S. sec. 2625, as amended by sec. 1, ch. 806, Laws of 1881. Upon making these payments the right to a change of venue is absolute. In these cases the costs of the term are fixed at two dollars. No other item of expense can be added, save the costs of making the change, which must be the legal fees of the clerk for certifying and transmitting the papers. The court, however, in addition to these two items, required in each case $10 to be paid to the plaintiff, and denominated that sum “costs of making such change.” This was erroneous. This sum was neither a part of the costs of the term, nor a part of the costs of making the change. The defendant had a strict and absolute right to the change upon complying with the terms imposed by the statute. He was not applying for relief in a [246] •matter lying within, the discretion of the court, where conditions might be imposed, nor could motion costs be imposed upon him, because he was not the defeated party. The case of Dodge v. Barden, 33 Wis. 246, has no application, because the law as then existing authorized the imposition of reasonable attorney’s fees, in the discretion of the court, in addition to the costs of the term. The appeal in each instance is from the whole order. That part of each order which directed a change of venue, and required payment of $2 costs of the term and the clerk’s fees for making the change, is correct and must be . affirmed. That part of each order which requires the payment of $10 to the plaintiff is erroneous and must be reversed. No costs will be allowed to either party. ' By the Court.— It is so ordered.