State ex rel. Federal Mutual Automobile Insurance v. Kellogg

Stevens, J. Sec. 261.01 of the Statutes provides that the proper place of trial of an action against a domestic insurance company to recover on policies of insurance is “the county in which the defendant has its principal office, or, at the election of the plaintiff, if a resident of this state, the cotinty in which the plaintiff resides.” This demand for a change of venue offered no opportunity to the plaintiff to elect to change the venue to the county of his residence. It treated the commencement of the action in Columbia county as an election on the part of the plaintiff. This case presents the question whether the commencement [640] of the action in Columbia county was an election by the plaintiff under the fifth subdivision of sec. 261.01. The action was properly triable in either Milwaukee county or Adams county. Under sec. 261.03 of the Statutes the plaintiff was not put to an election until the demand for change of venue was served. Within five days after the service of such demand, the plaintiff had the right to consent to the change, specifying the county to which the change is to be made, “having the option to name one of two or more in which it may-be properly triable.” Under both the fifth and sixth subdivisions' of sec. 261.01, when the plaintiff has an election between two or more counties, either of which is a proper place of trial, the statute contemplates that the demand should disclose every fact required to be placed before the plaintiff’s attorney in order to enable him to respond thereto by an election as to the place of trial, when there are two or more proper places of trial. The demand here in question did not tender the right to make such an election. It was therefore not an efficient compliance with the statute, and-“the service thereof did not require plaintiff’s attorneys to respond thereto, nor did such service create a legitimate basis for the motion which was denied.” Anderson v. Arpin H. L. Co. 131 Wis. 34, 41, 110 N. W. 788. The county court prpperly denied the motion. The motion to quash the alternative writ must be granted. The circuit court had jurisdiction to hear and determine the question presented in this case. State ex rel. T. L. Smith Co. v. Superior Court, 170 Wis. 385, 175 N. W. 927. Sec. 3, art. VII, of the Wisconsin constitution vests in this court general superintending control over all inferior courts. The fact that the circuit court also had supervisory control over the county court may lead this court to- decline to- take jurisdiction in cases where the rights of parties can be determined at the circuit without subjecting them to- needless delay or expense, but it does not in any way limit the jurisdiction con [641] ferred upon this court by the constitution. Courts should ever keep in mind the mandate of the constitution that every person ought to obtain justice “completely and without denial, promptly and without delay, conformably to the laws.” Wis. Const, art. I, sec. 9. To refuse to entertain jurisdiction of this writ after the matter had been fully presented to this court on the merits merely because the circuit court also had supervisory control over the county court would entail the delay and the expense incident to the presentation of this same question to the circuit court and perhaps to this court again upon appeal. Such procedure would add materially to the burdens of the litigants and of the courts. It would needlessly delay the'administration of justice at a time when it lies within the power of this,court to grant justice “promptly and without delay.’.’ By the Court. — The motion to quash the alternative writ is granted.