Brust v. First National Bank

Vinje, J. It is well settled that an appeal does not lie from an order denying or granting a change of venue. Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432; Latimer v. Julius Andrae & Sons Co. 101 Wis. 311, 77 N. W. 1119; Waukesha Co. Agr. Soc. v. Wis. Cent. R. Co. 117 Wis. 539, 94 N. W. 289. But it is argued by plaintiffs that since this order included a direction that there should be a trial de novo in the circuit court for Portage county, it was in effect an order granting a new trial and therefore appealable under the decisions of Pabst B. Co. v. Milwaukee L. Co. 156 Wis. 615, 146 N. W. 879; Hanna v. C., M. & St. P. R. Co. 156 Wis. 626, 146 N. W. 878; Mechanical A. Co. v. A. Kieckhefer E. Co. 163 Wis. 647, 159 N. W. 556. The difficulty with this argument is that the legislature and not the court directed the new trial. Ch. 261, Laws 1913, provides that in cases like this, where a defendant is a nonresident of Milwaukee county and a change of venue is granted in the circuit court for Milwaukee county to the county of his residence, “there shall be a trial de novo in the same cases and under the same provisions of law as in cases of appeals from justice courts.” The new trial in the circuit court for Portage county would have followed as a matter of course if the order had been silent on the question of a new trial. The only matter the circuit court for Milwaukee county considered and judi-cated upon was whether or not there should be a change of [16] venue. It was powerless to make any adjudication upon the • question of a new trial for the legislature had acted upon that question. The right to a new trial followed as a, matter of course upon a change of venue. The order, so far as the court had jurisdiction to act, was an order for a change of venue only, and that, as we have seen, is not appealable. It follows, therefore, that the appeal must be dismissed. By the Court. — Appeal dismissed.'