Taylor v. Lucas , 43 Wis. 155 ( 1877 )

Ryan, C. J.

“ It is not the office of a bill of exceptions to set forth anything which ought otherwise to appear by the record. The office of a hill of exceptions is to put upon record what would not otherwise appear upon it, not to correct it or vary it. So far, and so far only, for that purpose, and for that purpose only, a hill of exceptions becomes itself a part of the record. Any repetition of the record proper, any statement of what ought to appear by the record proper, any qualification of the record proper, is ultra vires in a bill of exceptions.” Hogan v. State, 36 Wis., 226.

Here we have a bill of exceptions incorporating the whole record, and almost nothing else. It purports to contain but a single exception, and that is a written exception appearing of record, valeat quantum valere potest. It does not need a bill of exceptions, and gains nothing by one. Germann v. Schwartz, 21 Wis., 661; Gilbank v. Stephenson, 30 id., 155. If an exception of the kind does not appear in the record proper, a bill of exceptions cannot supply it. So that we really have a bill of exceptions, without exception.

Both parties appeared in the court below by attorney. Issue was joined. When it was upon the calender for trial, a gentleman of the bar, as appears by the bill of exceptions, not an attorney or counsel in the cause, not appearing or claiming to act for either party, but seeming like the Gow Chrom “ to fight for his own hand,” presented to the court a paper purporting to be an affidavit of one of the plaintiffs, to the prejudice of the judge. He made no motion or request, suggested no action, but merely read and filed the paper. It does not appear that he gave any notice of any kind to the other side, or that any one representing the other side was present. So far as the record proper discloses, the court below very properly took no notice of the paper. If the court erred at all in respect of the paper, it was in permitting it to be read or filed. It is indeed stated in the bill of exceptions that the court refused to change the venue. That probably means no more than that the court did not change it. Such a refusal of the court as would be equivalent to an order, or the subject of exception, should appear in the record proper, and cannot be supplied by bill of exceptions. And the paper presented by a stranger and improvidently filed in the cause, on which no application was founded, is an unofficial superfluity, an impertinence, in the record.

Some days later, the plaintiff’s attorneys filed a written exception to “the order of the court denying the plaintiff’s application for change of venue.” This is an exception of record to an order not of record, apparently because the application indicated had not been made. Such exception is a mere nullity, because there is nothing of record to which it can apply. It is not unlike a written exception of record to the admission of testimony on trial, which would be a nullity. Exceptions to things appearing in the record, must appear of record. Exceptions to things appearing by bill of exceptions only, must appear in the bill of exceptions. And the one mode of exception cannot be a substitute for the other.

It is not necessary to consider the question whether the affidavit was sufficient to support a motion to change the venue, because no such motion appears to have been made, and therefore no order denying it. Upon this appeal, we can only review the judgment itself or interlocutory orders involving the merits and affecting the judgment. There is no such order to review.

To entitle a party to change of the venue, it is not enough to make an affidavit and read it to the court. An application must be made for the change, upon notice to the other side. Baldwin v. Marygold, 2 Wis., 419; Rines v. Boyd, 7 id., 155; Foster v. Bacon, 9 id., 345; Runals v. Brown, 11 id., 185; Bank v. Tallman, 15 id,, 92; Risto v. Harris, 18 id., 400; Dodge v. Barden, 33 id., 246; Moe v. Moe, 39 id., 308; Seehawer v. Milwaukee, id., 409, and many other cases in this court. And a sufficient affidavit, filed and read in open court by the attorney of the party, without proper notice and motion, has no effect to arrest the jurisdiction of the court. The court cannot properly act on such an affidavit in the cause, until it is moved to do so. The affidavit may be made, read and filed, with a view to a future application which may never be made. "We do not suppose that it was so intended here; but such a presentation of such an affidavit as appears in this record, might be a mere impertinence, warranting a proceeding for contempt.

By the Court. — The judgment of the court below is affirmed.