Anderson v. Arpin Hardwood Lumber Co.

• Decision Date: 19 February 1907
• Citation: 131 Wis. 34,110 N.W. 788
• Parties: ANDERSON v. ARPIN HARDWOOD LUMBER CO.
• Court: Wisconsin Supreme Court

131 Wis. 34

110 N.W. 788

ANDERSON

v.ARPIN HARDWOOD LUMBER CO.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Eau Claire County; James O'Neill, Judge.

Action by Albert Anderson against the Arpin Hardwood Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This in short was the plaintiff's claim: Between November 20, 1902, and October 29, 1903, plaintiff piled 19,087,033 feet of lumber for the defendant at the agreed price of 70 cents per thousand feet, and during the same time performed other work for the latter in and about its saw mill, for which it agreed to pay $417.25, and between the 23d day of February, 1903, and the 13th day of April, 1903, expended money for it at its request to the amount of $6.14, payment of all of which was duly demanded and payment thereof refused. Judgment therefor with interest thereon from the 29th day of October, 1903, with costs and disbursements of the action was demanded.

The defendant answered admitting that the plaintiff during the period mentioned in the complaint performed work in piling lumber for it, alleging full payment therefor, putting in issue the other allegations of the complaint, counterclaiming to the effect that during such period plaintiff performed work, labor and services for it in piling 19,123,607 feet of lumber at 65 cents per thousand feet, which was the reasonable value for such services and the agreed price therefor and alleging payment to plaintiff and on his account of $13,194.95, whereas the whole amount payable to him and on his account was $12,429.69, for piling the lumber and $51.25, for other labor, the aggregate being less than the amount paid to the extent of $714.01. Judgment for said sum with interest was demanded. The allegations of the counterclaim were duly put in issue by a reply.

Within the time for making a demand for a change of venue the defendant appeared in the action by attorneys, who served on the plaintiff's attorneys a demand in these words:

“Please take notice that we are retained by and appear for the defendant in the above-entitled action, and that defendant demands that the trial of this action be had within the county of Wood, state of Wisconsin, for the reason that the said defendant, at the time of the commencement of this action resided, and still resides, in the city of Grand Rapids, in said county of Wood, state of Wisconsin. That the defendant is a corporation of the state of Wisconsin, situated and having its principal office and place of business at Grand Rapids, in said Wood county.”

The plaintiff's attorneys having failed within five days after service of such demand upon them to serve on defendant's attorneys a written consent that the place of trial be changed, the defendant by its attorneys within twenty days after service of the demand moved the court to change the place of trial, pursuant to section 2621, Rev. St. 1898. The motion was supported by affidavits to the effect that plaintiff's work was done at Atlanta, Wisconsin; that he lived there during the progress of the work; that all money earned was paid at that place; that when he was through with his work he there demanded his pay at the rate of 70 cents per thousand feet for the lumber piled, which was refused, and that defendant's principal office and place of business has always been at Grand Rapids, Wood county, Wisconsin. In opposition there was an affidavit by plaintiff to this effect: Plaintiff's home for many years prior to the commencement of this action was at Eau Claire, Eau Claire county, Wisconsin. He was only temporarily absent therefrom while serving the defendant. He performed other work for defendant than piling lumber for the recovery of which the action was brought. The balance due had not been ascertained till after he returned from Atlanta to his home in Eau Claire. He did not make any demand for payment of the balance due him at Atlanta, but after he returned to Eau Claire and ascertained the whole amount due his attorney made a demand in writing for payment therefor. The $6.14, alleged in the complaint to have been expended for the defendant was paid out for certain specified articles in the city of Eau Claire, Wisconsin, a statement being sent by mail to the defendant at Atlanta, Wisconsin, and demand made for payment by including the same in the total claim for which payment was demanded as before stated, at which time he resided in the city of Eau Claire, Wisconsin.

The motion to change the venue was denied.

The court held that the claim for $6.14, was not established by the evidence so as to carry the same to the jury. On the other branches of the case the jury rendered a verdict in plaintiff's favor on his claim for $729.67, and a verdict wholly disallowing the counterclaim. Judgment was rendered accordingly.

Bundy & Wilcox, for appellant.

Wickham & Farr, for respondent.

MARSHALL, J. (after stating the facts).

The ruling against appellant's motion for a change of the place of trial from Eau Claire county to Wood county involves an important practice question, which must be solved by the statutes governing the matter without much aid from judicial authorities. Such statutes provide that the proper place for the trial of a civil action against a corporation of the sort to which appellant belongs is in “the county in which it is situated or has its principal office or place of business, or in which the cause of action or some part thereof arose” (section 2619, Rev. St. 1898), and that “when the county designated in the summons or complaint in any action is not the proper place of trial thereof the defendant may, within twenty days after the service of the complaint, serve upon the attorney for the plaintiff a demand in writing that the trial be had within the proper county, specifying it, unless there be more than one such county, and the reason therefor”; that “within five days after service of such demand the plaintiff's attorney may serve a written consent that the place of trial be changed, and specify to what county, having the option to name one of two or more in which it may be properly triable, and such consent shall change the place of trial accordingly,” and that “if the plaintiff's consent be not so served the defendant may, within twenty days after the service of his demand move to change the place of trial, and shall have costs if his motion be granted.” Section 2621, Rev. St. 1898.

Thus it will be seen that the prime essential to a compulsory change of the place of trial of this action was a statutory demand. That contemplates opportunity on the part of the plaintiff to make the change by merely serving a written consent in general terms, when there is but one “proper county” and by such a consent coupled with a choice, where there is more than one such county. A motion and order is only contingently necessary. The demand and the consent, as it has been said, work a change ipso facto. Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468. A motion is only necessary in case consent is not given in the manner the statute provides and is only proper when the statutory basis therefor has been laid by service of a proper demand.

It will readily be seen, and is freely conceded, that the proper place for the trial of such an action as this is not confined to the county where the corporation is situated or has its principal office or place of business, but it extends to the county, or counties, where the cause of action, or any part thereof, arose. So a demand for a change of the place of trial to the home of the corporation was not obligatory unless the cause of action wholly arose there, which we may well say in passing is not claimed. It also seems quite plain that the statute contemplates the making of a demand sufficiently broad to show that the county where the action was brought is not the nor a proper county and containing such statements as to enable plaintiff to phrase his consent to a change with reference to the or any proper county.

The words “the proper county” are material and should be embodied in the demand. They, by themselves, suggest that the county where the action was brought is not the county in which the corporation is situated or it has its principal office or place of business, or in which the cause of action or some part thereof arose. The words “the reason therefor” relate directly to the words “the proper county.” They, therefore, call for a statement in the demand not only showing why the county where the action was brought was not the proper place for the trial, but considered with reference to what follows, as to consent and choice, for a statement of why the particular county to which the change is demanded is the proper place for the trial, or, in case of there being more than one county, for a statement of the reasons and disclosing the names of such counties.

It is considered that any other construction of the statute than the one suggested would not enable both parties to an action to obtain the full benefit of the plan for changing the place of trial thereof without judicial interference. The words “specifying it, unless there be more than one such county” do not signify, it is thought, that the proper place for the trial is not required to be disclosed in the demand, except in case of there being but one such place, but suggest that where there is but one proper county the demand should be for a change thereto. The scheme taken as a whole, as indicated, contemplates a disclosure by the defendant of every fact required to be placed before the plaintiff's attorney in order for him to respond to the demand within the full scope of his privilege. So the form of the demand should be that the trial be had within the proper county, to wit: the county of ______, followed by a statement of why that is the only proper county, or where there is more than one such county, followed by a statement in accordance with what we have...