Rayson v. Horton

Pinney, J. The statute (sec. 2624, S. & B. Ann. Stats.) makes it the duty of the circuit court to “ change the place of trial of any action commenced before a justice of the peace or municipal court by process personally served, or wherein the defendant shall enter his appearance in such justice or municipal court, and pending upon appeal, to the [369] circuit court of the county in which, the defendant resides, upon his motion made at the first term at which the action shall be noticed for trial, if it shall be shown that he was, when the action was commenced, a resident of such county.” The application in this case was made in due season and upon a state of facts bringing the case clearly within the statute. This section of the statute is broader in its scope and effect than sec. 2621, which extends only to cases where the county designated in the summons or complaint “ is not the proper place of trial.” It secures an absolute right to a change of the place of trial in the case specified in it, whether the action was or was not properly brought in the county where it was commenced. The case of Van Kleck v. Hanchett, 51 Wis. 398, is decisive of the question involved. Whether the action is local or transitory in its nature cannot make any difference. In either case it is within the plain language of the section. Although the statute governing the action (Laws of 1891, ch. 139, sec. 2) provides that the petition for a lien shall be filed in the office of the clerk of the circuit court of the county in which the labor or services were done or performed, or, when the property has been transported to another county, that the petition may be filed, and an action to foreclose the lien brought, in the county where the property is at the time of filing the petition, the right of the defendant to a change of the place of trial upon the grounds specified in this case remains, as clearly so as if the application had been founded on alleged prejudice of the circuit judge. It is entirely clear that the provisions in the act of 1891 do not in any respect repeal or modify sec. 2621, under which the application in question was made. It was error to deny it, for which the judgment appealed from must be reversed. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to grant the defendants’ application for a change of place of trial.