Fatt v. Fatt

• Decision Date: 03 February 1891
• Citation: 48 N.W. 52,78 Wis. 633
• Parties: FATT v. FATT.
• Court: Wisconsin Supreme Court

78 Wis. 633

48 N.W. 52

FATT

v.FATT.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from Fond du Lac county court.

Rev. St. Wis. § 2625, provides that “the court shall change the place of trial of any action upon the application of any party thereto who shall file his affidavit that he has good reason to believe, and does believe, that he cannot have a fair trial of such action on account of the prejudice of the judge, naming him.”

This is an action of divorce, commenced by the service of a summons and complaint, May 3, 1890, in the county court for Fond du Lac county. The defendant served a verified answer, May 15, 1890. June 17, 1890, the defendant presented and filed with the clerk of said court an affidavit to the effect that he could not have a fair trial in such action, on account of the prejudice of the judge of said county court before whom said action was then pending, and prayed that the venue thereof be changed to the circuit court of Fond du Lac county. Thereupon an order was made in said cause, June 18, 1890, and filed therein with the clerk of said court, June 26, 1890, of which the following is a copy, to-wit: “In county court, Fond du Lac county. Louisa Fatt against Charles Fatt. May term, 1890. The above-named defendant having on the 17th day of June, 1890, filed his affidavit of prejudice of Hon. A. E. Richter, the presiding judge of said court, before the adjournment of said term, that the place of trial of said action be changed to the circuit court of Fond du Lac county, on hearing Charles D. Smith in support of said application, and C. S. Matteson in opposition thereto, it is ordered that such application to change the place of trial of this action is denied. By the Court. Dated June 18th, A. D. 1890. A. E. RICHTER, County Judge.” September 4, 1890, the defendant served on the plaintiff's attorney and the clerk of said county court a notice of appeal in writing, and which appeal was perfected October 3, 1890, by the service of an undertaking with one surety, and upon which the plaintiff's attorney had made the following indorsement in writing, to-wit: “I hereby waive necessity of a second surety on the within bond. Dated October 3, 1890. C. S. MATTESON, Plaintiff's Attorney,”--and which bond was, on the same day, filed with said clerk. Upon an order to show cause procured by the plaintiff's attorney, and served on the defendant's attorney, and hearing had, the said county court, on October 4, 1890, made and entered an order in said action, in effect modifying the said order of June 18, 1890, so as to make it appear that that order was in fact made without any hearing of or notice to the plaintiff's attorney by the judge at chambers, and was never made by the court.Charles D. Smith, for appellant.

C. S. Matteson, for respondent.

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

The affidavit for the change of venue was sufficient in form and substance to give the defendant an absolute right to the same under the statute. Section 2467 b, (c. 261, Laws 1889,) and section 2625, Sanb. & B. Ann. St. (Rev. St. § 2625.) If that application was regularly made, it had the effect to oust the county court of all further jurisdiction. Rines v. Boyd, 7 Wis. 155;Hewitt v. Follett, 51 Wis. 264, 8 N. W. Rep. 177; ...