State ex rel. Watson v. Clementson

Oassoday, C. J. The undisputed facts set forth in the foregoing statement suggest the several questions discussed in the briefs of the respective parties. Whether the order of December 4, 1903, striking out the affidavit of prejudice filed with the clerk seven weeks before for the reasons given by the defendant, was void, and whether the order of October 6,1905, denying the application of May 3, 1905, for a change of venue for tire reasons given by the defendant, was wrong, have both been carefully considered by this court; but the view we have taken of the case makes it unnecessary for us to determine either of those questions. In fact we do not regard those questions as properly before us for review on this application for a mandamus. After such proceedings were had and on or about November 1, 1905, the relator made in open court and filed in said court a new application for the change of the venue of said action, based upon the affidavit of said relator sworn to October 26, 1905, to the effect 'that he had “good reason” to and did believe that he could not have a fair trial of such action on account of the prejudice of the defendant, and that he made the application for a change of the place of trial of said action as by the statutes in such case [463] made and provided. The defendant received such application and treated such new affidavit as sufficient to satisfy .the statute applicable. Sec. 2625, Stats. (Supp. 1906; Laws of 1901, ch. 101; Laws of 1905, ch. 282). The statutes so amended provide in effect that the judge, on such application, shall change the venue, “or in lieu of granting such application” retain such action “until the last day of the then current term” in ease the action is triable at such term, “or the next term if it is made in vacation, and in the meantime shall call upon some other circuit judge or judges to attend and hold court during such current or next term for thé purpose of exercising jurisdiction in all” such actions. That section of the statutes, so amended, has during the present year been construed by this court in a case where, as here, the affidavit of prejudice was filed at a term at which the case was not triable. Odegard v. North Wis. L. Co. 130 Wis. 659, 669, 670, 110 N. W. 809. In that ease it was expressly held that “the cause can be sent from the circuit only after the lapse of a term at which it could be tried.” Id. The court, among other things, there said: “The general purpose of this section is reasonably clear; but, unfortunately, its terms are by no means clear. The purpose was to secure to a party making an affidavit of prejudice a trial before an unprejudiced judge without the transfer of the case to another circuit, and at the same time to secure both parties against a long delay which might easily result were there no limitation on the time within which another judge might be called in. ■ In other words, the purpose was to secure not only an unprejudiced trial, but a trial in the home circuit, provided a competent judge seasonably attends. It evidently contemplates that there shall always be one term during which the case can be tried in the home circuit, and that such, term shall be a term at which the ease is in situation to be moved peremptorily for trial. It clearly does not contemplate that the case shall be sent from the circuit after the lapse only of a term at which it could not be tried.” Id. [464] Such construction is in harmony with the general purpose-of the section. It safeguards the rights of the respective parties and must he adhered to. In so far as Bordyce v. State ex rel. Kellehev, 115 Wis. 608,. 92 E. W. 480, holds to the contrary it must he regarded as overruled. In the case at bar, as indicated in the foregoing statement, Judge Eeuit was called two weeks before the end of the October term for 1905. That term of the court was in regular session on Eebruary 15, 1906. Judge Eeuit gave notice that he would attend “for the purpose of assuming and exercising jurisdiction in said case” more than a week prior to the end of that term. Pursuant to such notice he was present and assumed and exercised jurisdiction in said case on Eebruary 15, 1906. That was the last day of the October term for 1905. On that day the relator moved said court, with Judge Eeuit presiding, for an order changing the place of trial of said action to some other circuit. Such motion was then and there denied by Judge-Eeuit. It appears from the return, however, “that Judge Eeuit has been ready, and is now, to try said case at-any term of the circuit court of Grant county at which it might have been or may be noticed for trial by either party since the Eebruary term, 1905.” It follows from what has been said that the relator is not. entitled to the mmdamus prayed for. By the Court. — The demurrer to the return is overruled and the relation is dismissed.