Sanders v. German Fire Insurance Co. of Indiana

KebwiN, J. Error is assigned because tbe court denied the-application for change of venue. Tbe order denying tbe motion shows that it was denied on the ground that the court had1 no power to send the case out of Winnebago county. The-county court of Winnebago county is a court of record, and" has civil jurisdiction equal to and commensurate with the circuit courts of this state, subject to certain exceptions and re [174] ■strictions not material bere. Cb. 361, Laws of 1860, and amendments thereto. Sec. 7 of tbe act provides: “All tbe general provisions of tbe statutes of Wisconsin, and of all general laws which now exist, or may hereafter -exist, relating to tbe proceedings in civil actions in tbe circuit •courts of this state, and to tbe powers and duties of courts of record, shall apply, in like manner, and with like effect, to ■said county court, as to said circuit courts. . . . The rules and practice, of said county court shall be tbe same as in tbe ■circuit courts of this state, as they may exist, or as shall here■after be provided for said circuit .courts in civil actions.” Tbe only specific provision of tbe act on change of venue will be found in sec. 17, which provides: “In all cases where a change of venue is allowed for the reason of interest, or prejudice, upon the part of the county .judge, the cause shall not be remitted to another county, but ■shall be removed to the circuit court of the same county.” See. 2466, R. S. 1878, also provides, in effect, that the general provisions of law at any time in force relating to circuit courts in civil actions shall relate also to the county courts, unless inapplicable, and except as therein otherwise provided. Under these provisions of the statutes the county court of Winnebago county, within the limits prescribed, is subject to •and governed by the general provisions of the statutes of Wisconsin relating to proceedings in civil actions in tire circuit courts. Cody v. Cody, 98 Wis. 445, 74 N. W. 217; Northwestern I. Co. v. Crane, 66 Wis. 567, 29 N. W. 654. This being so, it follows that the general statutes providing for change of venue in circuit courts on account of the convenience of witnesses and to promote the ends of justice apply to the county court of Winnebago county. The court did not pass upon the merits of the application as appears from the order, but denied it upon the ground of want of power to send the case out of the county. Counsel for respondent calls our attention to cli. 20, Laws -of 1889, as authority for his contention that, whenever the [175] place of trial in any action pending' in the county court of Winnebago county shall be changed, it shall be changed to the circuit court of that county. But it will be seen that this statute is limited specifically to change of venue on account of the prejudice or other disqualification of the judge, and makes mo reference to change of venue on account of convenience of witnesses and promotion of justice, and repeals sec. 2467, R. S. 1878, only in so far as it conflicts therewith. It is very plain that ch. 20, Laws of 1889, applies to change of venue in the county court of Winnebago county only on account of prejudice .or disqualification of the judge, and that in the case before us the application for change is governed by sec. 2622, R. S. 1878. The court below, therefore, was in error in denying the application on account of want of power to send the case out of Winnebago county. Counsel further contends that, conceding the trial court had the power to grant the motion, appellant cannot complain because the motion had been withdrawn. We are unable 'to discover anything in the record to support this contention. The order denying the motion upon its face recites that “the court, after heai’ing the parties and being advised in the premises, having decided that the court has no power to send the case out of Winnebago county on a motion of this character,” ordered that the motion be denied, with $10 costs, and signed and entered the order accordingly. There is nothing in the record showing that this order was ever set aside or that counsel for respondent ever asked it to be done. On the contrary, the record shows that appellant insisted upon his motion and the respondent opposed it and obtained the order denying it. After denial of the motion appellant’s counsel objected to proceeding to trial, for the reason that the court had improperly denied the motion for change of venue and had declined to pass upon the merits of the application. Upon this objection the trial judge, in effect, said that he had decided the motion on one ground and was not asked to decide on the other, [176] but, if requested, would do so, aud overruled tbe appellant’s objection to proceed to trial, and tbe trial proceeded, and tbe order denying motion for change on tbe ground of want of power was permitted to stand. It is from this colloquy between appellant’s counsel and tbe trial judge that counsel for respondent claims appellant’s counsel withdrew bis motion for change of venue. We are very clear that the contention is untenable. On tbe contrary, tbe record clearly shows tbe objection of appellant’s counsel to tbe decision on tbe ground of want of power, but counsel for respondent seems to have been willing to let tbe order stand. Tbe denial of tbe motion for want of power was reversible error. Binder v. McDonald, 106 Wis. 332, 82 N. W. 156; Ellis v. Barron Co. 120 Wis. 390, 98 N. W. 232. An order denying a change of venue is not appealable. Waukesha Co. A. Soc. v. Wis. C. R. Co. 117 Wis. 539, 94 N. W. 289; Latimer v. Central E. Co. 101 Wis. 310, 77 N. W. 155. Such order is reviewable on appeal from tbe judgment. Haas v. Weinhagen, 30 Wis. 326; Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177. Other errors assigned need not be considered. By the Gourt. — Tbe judgment and order denying motion for change of venue are reversed, and tbe cause remanded with directions to tbe court below to consider and decide tbe motion for change of venue upon tbe merits, and for further proceedings according to law.