Lego v. Shaw , 38 Wis. 401 ( 1875 )

Lyon, J.

The order from which this appeal was taken, is attacked on three grounds: 1. It is claimed that by bringing their suit in Eau Claire county with full knowledge of the existence of the grounds of objection to a trial in that county, the plaintiffs waived their right to demand that the place of trial be changed. The statute provides that either party in any civil cause may apply for a change of venue for the causes alleged in the petition therefor in this action (among others), and, if the court is satisfied of the truth of the allegations, it shall grant the application. R. S. 1849, ch. 95; R. S. 1858, p. 1055 (appendix); Taj. Stats., 1425, § 14. The statute does not provide that no change oí venue shall be granted on the application of the plaintiff, if be knew, when he commenced his action, of the existence of'the facts which, but for that knowledge, would entitle him to such change. Neither dees the statute contain any provision or language showing a legislative intent thus to limit the rights of a plaintiff under it. To give the statute the effect contended for would not be construction but interpolation. It must be held, therefore, that the plaintiffs did not waive their right to apply for a change of the place of trial.

2. It is further claimed on behalf of the defendants, that the last motion for a change of venue “was barred by the order denying a like motion made at the September term in 1872, no leave to renew having then been given, and no appeal having been taken therefrom.”

Neither the motion papers on the last application, nor the record returned on this appeal, contain the order of 1872 ; and hence we do not know, judicially, whether leave to renew the first application was or was not given. If such leave was given, very clearly the doctrine of res judicata is not applicable. Were it necessary to do so, to sustain the order appealed from, we should be bound, upon well settled principles, to presume that the application of 1872 was denied (as was the second application), without prejudice to the plaintiff’s right to renew it. But we do not deem it necessary to indulge in that presumption. For, assuming that the doctrine of res judicata may be applicable to cases like this (a point which we do not determine), and assuming also that the order of 1872 is absolute in its terms — saving no right to renew the application in that behalf,— we still think that the order of 1872 is no bar to the last application, because very many of the material facts and circumstances upon which it is founded, and which are stated in the motion papers, occurred after the order of 1872 was made, or first came to the knowledge of the plaintiffs after that time. The doctrine of res judicata cannot justly be, invoked in such a case.

3. The remaining objection to the order from which this appeal was taken, and one which 'has been very earnestly urged by the learned counsel for the appellants is, that “ the facts as shown by the petition and affidavits read on the hearing of the motion, -are not sufficient to warrant the order made thereon upon the grounds alleged therefor.”

The granting or denying of an application to change the place of trial for the causes assigned in this case, is a matter within the sound discretion of the circuit court, and its ruling thereon will not be disturbed on appeal unless there has been an abuse of discretion. If the averments of the petition and the affidavits read to support it are true, the venue was properly changed, for they show that the plaintiffs cannot have an impartial trial of their cause in Eau Claire county. Some of those averments are denied in the affidavits read in opposition to the application. Upon such conflicting evidence, the circuit judge, aided by his own personal observation and knowledge, to which he might properly resort (Jackman Will Case, 27 Wis., 409), has found the controverted facts to be as claimed by the plaintiffs. At least, he has found that enough of the material averments of the petition are true, to entitle the plaintiffs to the relief prayed. We cannot say that the court erred in this, or that the granting of such relief was an abuse of discretion. This disposes of all the alleged errors, adversely to the appellants.

An examination of the record returned to this court discloses a number of loose papers, and among them a certificate of the clerk of the circuit court to the effect that the annexed papers (referring to them as the complaint, the answer, etc.), were used on the hearing of the motion. No papers are annexed to such certificate, and there is an entire failure to comply with the statute and rule in thát behalf. Had a motion to dismiss the appeal for that cause been made, it would doubtless have been granted, although it is probable that the appellants would have been permitted, on terms, to procure a proper return. This subjects mentioned for the purpose of impressing upon the minds of the circuit court clerks the necessity, in riiaking return to appeals from orders granting or denying motions, of attaching together all papers used on the hearing of the motion and annexing the proper certificate thereto, so that there may be no doubt or uncertainty as to what papers were so used.

By the Court. — Order affirmed.