Cyra v. Stewart

• Citation: 79 Wis. 72,48 N.W. 50
• Parties: CYRA v. STEWART ET AL.
• Decision Date: 24 February 1891
• Court: United States State Supreme Court of Wisconsin

79 Wis. 72

48 N.W. 50

CYRA

v.STEWART ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Portage county.

Howard Morris and D. Llovd Jones, for appellants.

Lamoreux & Park, for respondent.

COLE, C. J.

This is an appeal from an order of the circuit court denying the appellant's application for a change of the place of trial on account of the prejudice of the people of the county. There are 14 other cases, identical with the present one, founded on claims for damages from a fire which, it is alleged, had its origin on the appellant's right of way, through its negligence in allowing combustible material to accumulate thereon. The statute authorizes the court to change the place of trial “when there is reason to believe that an impartial trial cannot be had” in the county where the action was commenced. Subdivision 2, § 2622, Rev. St. In other words, where a fair and impartial trial by the means provided by the law cannot be had in the county wherein the venue is laid, it constitutes a sufficient ground for the change. This is the obvious meaning of the statute. The application was supported by some 38 affidavits, and the counter-affidavits used in resisting the motion for a change were 151. To give even a brief summary of the matter stated in these various affidavits would fill more space in the published report than the nature of the case would justify, and we therefore need only say that the facts stated in the affidavits fully warrant, in our opinion, the belief that a fair and impartial trial of the cause could not be had in Portage county. The facts stated as to the local hostility and general prejudice on the part of the people against the defendant company amply sustain such a conclusion. It seems there has already been a trial of 2 cases for damages sustained by fires, and 14 other cases are now pending, involving an inquiry into substantially the same facts as to the origin of the fires. It will be seen that many persons are directly interested in establishing the responsibility of the company for these damages. The fire extended over quite an area in the county, and it is natural to suppose that its origin and the liability of the company were topics that have been widely discussed among the people of the county. The affidavits show that these questions have been much discussed, and that many persons of standing and influence have expressed the hope that the company would be held liable to pay all damages occasioned by the fires. These expressions of ill will and of hostile feelings against the company are so general that one of the attorneys of the company, who has personally been engaged for...