Schafer v. Shaw

Cassoday, J. The motion for the change of venue is based upon a large number of affidavits, stating among other things, in effect, that many farmers resided upon the river below the tannery, and favored a recovery by the plaintiff, as establishing their own right to imaginary damages; that the defendants had two other tanneries in the county,— one at Parkinstown, and another at Rib Lake, — and each of which was about twenty miles from Medford; that many [187] citizens of the county were prejudiced against the defendants and their methods of conducting the tannery business; that many believed the defendants had secured numerous public roads to be built at public expense for their own private benefit; that the city of Medford had issued bonds in aid of the construction of such tannery, and that $9,000 of bonds remained unpaid; and that many claimed they were illegal, and were opposed to the payment of the same. Such affidavits were met by numerous counter affidavits. Unless, upon such application, the inability to obtain an impartial jury clearly appears, the motion will be denied. The determination of such motion is necessarily within the sound discretion of the trial court, and will not be disturbed unless it clearly appears that there has been an abuse of such discretion. Lego v. Shaw, 38 Wis. 401; Ross v. Hanchett, 52 Wis. 491. In the case at bar we do not think it so appears. But there was another insuperable objection to such application. The statute applicable provides that “ no such change shall be made in any action after one continuance had, on the motion of the party apptying for a change, unless it shall appear to the court that the cause therefor was discovered or developed after such continuance.” S. & B. Ann. Stats, sec. 2626. Here the application for such change of venue was made by the defendants several months after they had obtained such continuance, and yet it is not made to appear that the alleged cause for such application was discovered or developed after such continuance. By the Court.— The order of the circuit court is affirmed. Cassoday, J. In Erickson, Respondent, vs. Shaw and others, Appellants, the facts are substantially the same as in Schafer v. Shaw, ante, p. 185. For the reasons given in the opinion filed in that case, the order of the circuit court in this case is affirmed.