Wolcott v. Wolcott , 32 Wis. 63 ( 1873 )

LYON, J.

The statute which we are required to construe is as follows: “ Whenever any party in any civil action pending in any court of record, shall apply to the court, or the judge thereof, for a change of the place of trial of such action, on account of the prejudice of the judge of such court, and shall verify such application by his oath or affidavit, the court or the judge thereof shall change the place of trial of such action.” R. S., ch. 123, sec. 8, as amended by laws of 1862, ch. 206. (Tay. Stats., 1424, § 10.)'

The precise question to be determined is, Was the place of trial properly changed upon the application of the three defendants who had answered, based upon the affidavit of but one of them of the prejudice of the judge, the defendant who was in defáult hot joining in the application ?

In Coodno v. Oshkosh, 31 Wis., 127, I was constrained to dissent from tbe opinion of my brethren upon a question relating to a change of venue for alleged prejudice of the judge; and I there took occasion to express my views, to some extent, upon the character of the law which authorizes such change. A reference to that opinion will demonstrate that there is but little room for argument between the learned counsel for the plaintiff and myself, as to the policy and propriety, or rather the im-policy and impropriety, of that law in its present form. But however odious the statute may be, it is a valid enactment, remedial in its object and character, and must be construed with reasonable liberality to effect the purpose which it was intended to accomplish. Such purpose was, obviously, to relieve a party who makes affidavit that he fears the judge of the court in which his cause is pending is prejudiced against him, from being compelled to try his cause before such .judge.

"Where there is but one plaintiff or one defendant making the affidavit and application, or where there are several plaintiffs or several defendants, all of whom join therein, there can be no difficulty. In all such cases the change of venue must be awarded. But cases may arise in which some of the plaintiffs or some of the defendants make the application, and the balance of them are opposed to the application, or do not join therein. What is the proper rule in such case ?

Suppose one of two plaintiffs makes the required affidavit of the prejudice of the judge, and applies for a change of the place of trial, and the other plaintiff does not join in the application", but prefers that the case be tried in the court in which it was commenced. In such case the rights of the plaintiff who does not join in the application are certainly equal to those of his coplaintiff, and it seems very clear that the statute ought not to be so construed as to give the latter the control of the action in this particular, to the exclusion of the former. But we do not think it essential that both plaintiffs join in the affidavit of prejudice. If the affidavit of one plaintiff shows that he fears that the judge is prejudiced against him, and the other plaintiff joins in an application for a change of venue for that cause, we see no good reason why the application should not be granted. This seems to us to be the sound construction of the statute under consideration. The same rules will in general govern when the application is made by one or more of several defendants. Thus, where the application is made by all of the defendants, but based upon an affidavit of one of them alone, the affidavit being sufficient in form, the venue should be changed.

But a little reflection will suggest cases which may arise that are exceptional, and in which it may well be held that the non-joinder of certain classes of defendants in the application ought not to defeat it. For example, a person may have an interest in the subject of the action, jointly with others, and be a proper party plaintiff to the action, but, withholding his consent to be named a plaintiff, he is made a defendant. (Tay. Stats., 1420, § 20.) The interests of such defendant are hostile to those of his codefendants, and in accord with the interest of the plaintiffs. We think that it would be a violation of the spirit and intent of the statute to permit such defendant to defeat the application of his codefendants for a change of venue, by refusing to join therein. Were it held otherwise, one of two or more persons interested in the subject of the action might refuse to join as a plaintiff for the purpose of being made a defendant, to enable him to defeat such an application thus made by his codefendants. Other cases might arise where the interests of one defendant might be hostile to those, of his co-defendants, although not in accord with the interests of the plaintiff. The foregoing views are applicable to such cases.

Again, for similar reasons, it would seem that merely formal parties, those who are made defendants because of their relations to some other party, or those who are supposed to have some interest in the subject matter of the litigation, when in fact they have none, should not, by refusing to join therein, be permitted to defeat an application for a change of venue made by the defendants in interest. Otherwise some convenient friend of tbe plaintiff might be made a defendant in almost any action, who could effectually deprive bis codefendants of a right which the legislature evidently intended to give them.

We are further of the opinion, and so hold, that an application for a change of the place of trial for the prejudice of the judge, made by the defendants in an action, and which is otherwise sufficient, should not be denied merely because a defendant who has not appeared in the action and is in default, has not joined in the application.

The foregoing views are decisive of this appeal; and although several other points were discussed in the argument, it is only necessary to remark, in addition to what has already been said, that we perceive no valid ground for the suggested doubt that the legislature cannot confer upon a judge at chambers authority to make an order changing the place of trial of an action. Further, the practice adopted by the counsel for the plaintiff, in first moving the court to vacate the order made at chambers, is strictly regular; and the order of the court refusing to vacate such chamber order is appealable. Goodno v. Oshkosh, 31 Wis., 127; Bank v. Tallman, 15 Wis., 92.

Had the record of the case been actually transmitted to the circuit court before the motion to vacate the judge’s order was made, the county court would have lost jurisdiction. Such has been the ruling of this court in former cases. But inasmuch as the record has been returned to this court from the county court, by virtue of this appeal, it is inferred that it remained in the latter court until the appeal was taken.

Our conclusion upon the whole matter is, that the venue was properly changed; that the motion to vacate was properly denied ; and that the order of the county court from which this appeal was taken, must be affirmed.

By the Court.— Order affirmed.