State ex rel. Webster Manufacturing Co. v. Reid

The following opinion was filed May 9, 1922: Vinje, C. J. The action raises the question whether the relator moved in time under the provisions of sec. 2621, Stats. 1921, and whether the cause of action or any part thereof arose in Oneida county. It is argued on behalf of the relator that to move is to set in motion, to commence, to take action, etc., and that since it obtained its order to show cause why the venue should not be changed, served the same upon the plaintiff in the action, and filed the papers with the clerk of the circuit court for Oneida county within the statutory time, it had acted seasonably and was entitled to have its motion heard and acted upon after the expiration of the twenty days. The defendant argues that no motion is made until it is brought to the attention of the court; that the obtaining of an order to show cause, serving and filing the papers is but a preparation for a motion to be made to the court later. While this may technically be true, we think the statutory intent was that action such as was taken by the relator constitutes a motion. If it does not, then the absence of a judge from his circuit may defeat a defendant entirely from obtaining a change of venue no matter if he be legally entitled thereto. It has been the practice of the profession to consider an order to show cause or notice of a motion served and filed a motion, and Circuit Court Rule XI, sec. 4, uses the term “motion” in this sense. It provides that “Either party may, in vacation or in term time, file with the clerk a motion for an order to be applied for at a time fixed in the motion and serve a copy thereof on the adverse party, or his attorney, at least ten days before the time specified for making such application. After the motion has been so filed and served, [616] either party may proceed to take depositions,” etc. ■ It will be observed that after serving and filing the papers tlie application is called a motion. The statute defines a motion as “an application for an order,” and the rules of practice provide that such application may be made by an order to show cause or notice of a motion served and filed. Constructively at least the application is made to the court when it has been served and is filed with the court. It is not essential to its validity that it should be actually called to the attention of the judge. To hold otherwise would introduce too much uncertainty into our practice relating to motions because of the many absences from the circuit by our circuit judges. They may be called to any part of the state upon short notice, and thus render it practically impossible to perfect a motion under the construction claimed by the defendant. The next question is, Did the cause of action or any part thereof arise in Oneida county? The contract was entered into by correspondence, mostly by mail and in part by wire. The final closing of the contract was by mail in answer to the letter of the plaintiff in the action referred to when the relator accepted the limitation of the amount to two cars only. Where the parties are not together and the offer and acceptance are made at different places, the place of the contract is the place where the offer is accepted (1 Page, Contracts, § 214,-and cases cited; 1 Williston, Contracts, § 97, and cases cited) ; and acceptance by letter occurs where the letter of acceptance is mailed. In this case that was at Superior. So if it should be held that the making of the contract constitutes a part of the cause of action, concerning which we express no opinion, the contract was not made in Oneida county but in Douglas county. ■ It was also to be performed in the latter county. The contract was for lumber f. o. b. Superior. It was also breached there; for in the absence of circumstances indicating the contrary, where a breach of a contract occurs it will be deemed to occur at [617] the place where the contract is to be performed. The letter sent to the Brown Land & Lumber Company notifying it that no more lumber would be received was merely notice of the breach occurring at the place of the performance of the contract. It will thus be seen that no part of the cause of action arose in Oneida county and that the motion for a change of venue was seasonably made. The court should have granted the motion. By the Court. — Let a peremptory writ of mandamus be issued as prayed for. A motion for a rehearing was denied, without costs, on July 8, 1922.