Zeller v. Martin

Pinnet, J.

1. The plaintiff had a right to determine for himself on the frame of his action, and to make as many or as few of the alleged joint tort feasors defendants as he chose. “ A defendant has no right .to say that an action shall be several which the plaintiff elects to make joint.” Smith v. Rines, 2 Sum. 348. It was for the plaintiff to elect to proceed against both these defendants jointly upon a liability several as well as joint, and the defendant Ma/rUn has no right to object to this method of proceeding; and so,'too, in a case where the result of such joinder is to defeat a right of removal of the cause from a state to the United States circuit court, which the defendant complaining of such joinder would have been entitled to as a matter of right had he been sued alone. Pirie v. Tvedt, 115 U. S. 41, 43; Sloane v. Anderson, 117 U. S. 275, 278, 279.

2. The county of Waukesha was the proper county to be named as the place of the trial of the action: (1) The defendants both resided there at the time of- its commencement; (2) they were sued for acts done by them in that county as public officers, and in virtue of their respective offices. R. S. sec. 2619, par. 2, subd. 1, and par. 6. But if the place of trial was designated in the wrong county, it could be changed only in the manner pointed out in the statute, namely, by demand therefor, to be served within twenty days after the service of the summons, and, if not complied -with within five days thereafter, by motion for such change, which is required to be made within twenty days after the service of such demand; but, if no such demand is made, the county designated in the complaint shall be the place of trial. Secs. 2620-2622.

The general rule is that all the defendants must unite in the demand and motion for a change of place of trial, but some exceptions thereto have been indicated in Wolcott v. Wolcott, 32 Wis. 63, where it was held that a defendant named in the summons, but who had not appeared and was in default, need not join in the motion; and so in Eldred v. Becker, 60 Wis. 48, where one named as a defendant in the summons had not been served and had not appeared, and in Hewitt v. Follett, 51 Wis. 270, 271, where the defendants not joining were not real parties to the matter to be litigated between the other defendants and the plaintiff. But the general rule is as above stated. Rupp v. Swineford, 40 Wis. 28; Levy v. Martin, 48 Wis. 198, 204.

Each defendant has a right to determine for himself whether he will join in a demand and motion for a change of the place of trial, and, when defending separately against a cause of action for which the defendants are jointly as well as severally liable, to pursue such policy and course in his defense as shall seem best calculated to promote his interests. As held in Wolcott v. Wolcott, 32 Wis. 63: “In such case the rights of the defendant who does not join in the application are certainly equal to those of his co-defendant, 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.” The fact that in this respect each (the plaintiff and defendant Gaynor) has availed himself of his lawful right has no tendency to show that they are in collusion, or that Gay-nor was collusively joined as a defendant, to prevent Martin from obtaining a change of the place of trial of the action. The defendant Martin certainly has no right to absolutely control the conduct of the defense, and to insist on a demand of change of the place of trial not desired by his co-defendant, Gaynor. They are equally interested in the action; for, if a verdict should be found against them, there can be but one assessment of damages as against both. The charge of collusion is very feebly sustained, and is, as we have seen, positively denied. The superior court properly denied the motion for a change of the place of trial.

By the Court.— The order of the superior court of Milwaukee county is affirmed.