Fenelon v. Butts

• Decision Date: 03 November 1881
• Citation: 53 Wis. 344,10 N.W. 501
• Parties: FENELON AND ANOTHER v. BUTTS.
• Court: Wisconsin Supreme Court

53 Wis. 344

10 N.W. 501

FENELON AND ANOTHER

v.BUTTS.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Dodge county.

L. F. Fribert and J. B. Hays, for respondents.

Eli Hooker, for appellant.

ORTON, J.

1. There had been a change of the place of trial, on the ground of prejudice of the judge, from the county of Rock to the county of Dodge, under the law of 1876, on the sixth day of May, 1878. The defendant again made application for changing the place of trial, for the same cause, from the county of Dodge, on the eleventh day of October, 1880, which was refused on the ground that there had already been one removal for that cause, and only one could be granted. It is unnecessary to decide whether the statute of 1875, under which only one removal could be had, was or was not repealed by the statute of 1876, in which there was no such limitation, for by the true construction of section 2625, Rev. St., no other change of the place of trial could be had after one removal for that cause had been granted. That section, after providing for changing the place of trial on account of the prejudice of the judge, provides further that “but one change of the place of trial shall be granted to the same side, “ under the provisions of this section.” Previous sections provide for changing the place for trial for other causes.

The learned counsel of the appellant contends that this section should be so construed as to allow one removal after this section took effect, and but one, notwithstanding there had been one removal for the same cause under the provisions of the statute of 1876, repealed by the Revision. This statutory limitation is found in nearly all the statutes on the subject since 1858, and it would therefore appear to have been the intention of the legislature to restore the laws of 1858 and 1875, allowing but one removal for this cause in any case; but the language of the limitation, we think, clearly expresses this intention, and means that there should be but one removal for the cause mentioned in this section, and not by the authority and effect of this section. This is not a question of the retroactive effect of the section, but one of construction only. The motion for such removal from the county of Dodge was therefore properly overruled.

2. The testimony as to the condition and circumstances of the plaintiff's family, and the filthy condition of the jail in which the plaintiff Mrs. Fenelon was imprisoned by the defendant and others, was properly admitted as going to the question of her mental anguish, pain, suffering, insult, and indignity resulting from her imprisonment as affecting her actual damages.

3. The court properly allowed the witness Leslie to testify what Hooker said in relation to the threatened second imprisonment of Mrs. Fenelon, for several reasons: (1) Because Hooker had acted as the attorney of the defendant throughout the proceedings which resulted in her first imprisonment; and whether he was still acting as his attorney when he made the statements imputed to him, and was then conspiring with the defendant for the rearrest and imprisonment of the plaintiff, were questions for the jury, upon which there was at least some evidence. (2) There had been some evidence that the attorney, Hooker, had actively conspired with the defendant in procuring the imprisonment, and therefore his statements relating thereto were admissible to bind his coconspirator. Hoffman v. Eppers, 41 Wis. 251. (3) The statements of Hooker were made in the presence of the defendant, and while the defendant, at least, was evidently plotting the further imprisonment of the plaintiff; and, if not with his tacit assent, it might have been followed with proof of his express assent, so that what Hooker said on that occasion was proper as being introductory to other evidence, or was admissible under the circumstances, which it was the province of the jury to consider.

4. The affidavit for the supplementary proceedings in which the imprisonment occurred was admissible. First. Because it was one of the acts of the defendant to be considered in connection with his other acts causing the imprisonment. When the case was before this court on the former appeal, (49 Wis. 342,)^* the present chief justice said in the opinion: “The mere fact that the defendant made the affidavit under the circumstances is not enough to warrant the court in ruling as a matter of law that he was liable for the imprisonment; it should appear that he did something more to bring about or cause the imprisonment;” clearly implying that the making of the affidavit was an act proper to be considered with other acts of the defendant causing the imprisonment. Second. It was proper, as showing that the imprisonment was for the benefit of the defendant, so that his subsequent approval of it would make him liable.

5. The question to Mrs. Fenelon, “Where were you taken from that day?”...