Morrell v. Glasspoole

BaedebN, J. The defendant is seeking to take advantage of a mistake made in a proceeding instituted by him to remove the case from the justice before whom this action was commenced. The statute (see. 3616, Stats. 1898) provides that if the defendant shall “make oath that, from prejudice or other cause, he believes that such justice will not decide impartially,” the justice shall transmit the papers to some other magistrate. Burns v. Doyle, 28 Wis. 460, decides that this statute does not require the party to make an affidavit, but only an oath. The record of the justice recites that the “ defendant appeared in person and delivered to the court an affidavit for a change of venue on the ground of prejudice.” The case was accordingly removed, was tried in county court, and appealed to the circuit court, where the proceedings mentioned in the statement were duly taken. The question is raised whether the order of the circuit court permitting the amendment of the affidavit was such a one as this court might review under section 3070, without its being brought into the record by a bill of exceptions. Upon the authority of Hewitt v. Follett, 51 Wis. 264, we shall assume that the order mentioned is one properly reviewable on an appeal from the judgment. [295] The remaining question is whether the amendment to the affidavit was such a one as might properly be permitted under sec. 2830, Stats. 1898. We think it was. In Lederer v. C., M. & St. P. R. Co. 38 Wis. 244, the defendant took an appeal, but the notary, by inadvertence, omitted to sign the jurat to the affidavit of appeal. On a motion to dismiss, it was shown that the oath had been actually administered. The motion was denied, and the court authorized the notary to sign as of the day on which the affidavit was in fact made. This court approved the procedure under the provisions of the statute mentioned. Again, in State ex rel. Weber v. Cordes, 87 Wis. 373, where the notary omitted to sign the jurat to the verification-of a petition for a writ of certiorcuri, it was held proper to allow the defect to be cured by his signing nunc pro time. Here all the requirements of sec. 3616 had been complied with. The defendant had made the oath in due form before the justice. The case was then removed to the county court upon a record which showed that such affidavit had been filed. Had the mistake of the justice been discovered, the error could have been corrected in that court. So long as the oath had in fact been administered, and all the demands of the statute had been met, we see no reason why, when it was discovered that the jurat to the affidavit had been omitted, it could not be corrected, even after the case got into circuit court. The record of the justice showed that an affidavit of prejudice had been duly presented. But it is said the affidavit so presented was unsigned, and was no affidavit, under the ruling of Kidder v. Fay, 60 Wis. 218. The same contention was raised in Burns v. Doyle, 28 Wis. 460. The affidavit presented and preserved in the record had no venue laid. It was contended that the statute did not authorize the removal of a cause upon an affidavit, and that if it does the affidavit must be in due form,.pontaining everything es'sen296 tial to its validity, including a venue. In disposing of this contention the court made use of the following language: “ This view of the question is founded upon the assumption that the oath and the affidavit are two separate and distinct things, which is not true. The affidavit includes the oath, and may show what facts the affiant swore to, and thus be available as an oath, although it may be entirely unavailable as an affidavit.” Other language in this opinion is applicable to the facts in this case, but need not be here repeated. "We are satisfied that the record transmitted by the justice to the county court was sufficient to show jurisdiction, and that the defect in the affidavit was properly cured under the terms of the statute cited. By the Court.— The judgment is affirmed.