Challoner v. Boyington

PiNney, J. Whether the place of trial of an action should be changed on the ground that “ the convenience of witnesses and the ends of justice would be promoted by the change ” (subd. 3, sec. 2622, R. S.), is a matter resting in the sound discretion of the court, and an order directing such change will not be reversed but for a manifest abuse of discretion. Lego v. Shaw, 38 Wis. 401; Church v. Milwaukee, 31 Wis. 512. For the purposes of such an application, the convenience of parties who are -witnesses may be considered to the same extent as other witnesses; and it is obvious that the application for the change in this case set forth enough to bring the discretion of the court into action, particularly as it has been held in Cartright v. Belmont, 58 Wis. 376, that on such an application “no affidavit or sworn petition is required by the statute or rules of court. It is sufficient if the judge is satisfied by proof that a cause for the change exists.” And this court has also ‘‘held that “in the exercise of such discretion the trial judge may take into account matters within his own knowledge and observation, as well as the proofs presented.” Ross v. Hanchett, 52 Wis. 493; Schattschneider v. Johnson, 39 Wis. 387; Jackman Will Case, 27 Wis. 409. The order does not [220] show upon what proofs the court acted in making it, beyond the fact that the order to show_cause was based on the affidavit of M. C. Phillips, “ and the records and files of the case.” The records and files of the case, aside from the motion papers, have not been transmitted to this court. It does appear that the trial judge presiding at the former trial heard and granted this application, and we are bound to presume that he may have acquired by observation some knowledge of the case which assisted him in the exercise of his discretion. Error will not be presumed, but must be made to appear affirmatively. In the absence of the records and files, and of any facts which may have come to the observation of the trial judge, we cannot say that the discretion vested in the court was not properly exercised. By the Court.— The order of the circuit court is affirmed.