Brust v. First Nat. Bank of Stevens Point

• Decision Date: 10 January 1922
• Citation: 176 Wis. 14,186 N.W. 214
• Parties: BRUST ET AL. v. FIRST NAT. BANK OF STEVENS POINT.
• Court: Wisconsin Supreme Court

176 Wis. 14

186 N.W. 214

BRUST ET AL.

v.FIRST NAT. BANK OF STEVENS POINT.

Supreme Court of Wisconsin.

Jan. 10, 1922.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Peter Brust and another, copartners, doing business under the firm name of Brust & Philpp, against the First National Bank of Stevens Point, begun in the civil court of Milwaukee county, and appealed by defendant to the circuit court. From an order of the circuit court granting defendant's motion to change the venue and directing a new trial, plaintiffs appeal. Afpeal dismissed.

Action begun in the civil court of Milwaukee county against the defendant bank, whose principal place of business is Portage county, Wis. The defendant moved in the civil court for a change of venue to Portage county, but the motion was denied, whereupon it answered and permitted a judgment for $1,834, with interest and costs against it by default. It appealed to the circuit court, and there again moved for a change of venue to Portage county, and from an order changing the venue to such county and providing for a new trial in the circuit court for Portage county the plaintiffs appealed to this court.Kaumheimer & Kenney, of Milwaukee, for appellants.

Fisher & Cashin, of Stevens Point, and F. F. Wheeler, of Oskosh, for respondent.

VINJE, J. (after stating the facts as above).

[1] It is well settled that an appeal does not lie from an order denying or granting a change of venue. Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432;Latimer v. Julius Andrae & Sons Co., 101 Wis. 311, 77 N. W. 1119;Waukesha Co. Agr. Soc. v. W. C. R. Co., 117 Wis. 539, 94 N. W. 289.

[2] But it is argued by plaintiff that since this order included a direction that there should be a trial de novo in the circuit court for Portage county, it was in effect an order granting a new trial, and therefore appealable under the decisions of Pabst B. Co. v. Milwaukee L. Co., 156 Wis. 615, 146 N. W. 879;Hanna v. Chicago, M. & St. P. R. Co., 156 Wis. 626, 146 N. W. 878;Mechanical Appliance Co. v. A. Kieckhefer E. Co., 163 Wis. 647, 159 N. W. 556. The difficulty with this argument is that the Legislature and not the court directed the new trial. Chapter 261, Laws of 1913, provides that in cases like this, where a defendant is a nonresident of Milwaukee county and a change of venue is granted in the circuit court for Milwaukee county to the county of his residence, “there shall be a trial de novo in the same case...