Fordyce v. State ex rel. Kelleher

• Decision Date: 28 November 1902
• Citation: 92 N.W. 430,115 Wis. 608
• Parties: FORDYCE v. STATE EX REL. KELLEHER. STATE EX REL. KELLEHER v. FORDYCE.
• Court: Wisconsin Supreme Court

115 Wis. 608

92 N.W. 430

FORDYCE

v.STATE EX REL. KELLEHER.

STATE EX REL. KELLEHER

v.FORDYCE.

Supreme Court of Wisconsin.

Nov. 28, 1902.

Error to and appeal from circuit court, Price county; E. W. Helms, Judge.

Quo warranto by the state, on the relation of C. C. Kelleher, against Elizabeth H. Fordyce. From a judgment of ouster, defendant brings error. From an order refusing to vacate the proceedings, defendant also appeals. Affirmed.

This action is quo warranto to determine the right of Elizabeth H. Fordyce to hold the office of county superintendent of schools of Price county, Wis. It was brought by the relator, as a resident and taxpayer. The relation alleges that the defendant received the greater number of votes at the November election in 1900, and was given a certificate of election; that she never was eligible to said office, and that her name was illegally placed on the official ballot; that on the first Monday in January, 1901, she unlawfully intruded into said office, and has since exercised its functions, and claims its emoluments. The defendant demurred to the relation on the ground that the relator had not legal capacity to sue. The suit was brought in January, and in February, 1901, the relator filed an affidavit of the prejudice of Judge Parish. The defendant's counsel objected on the ground that the action was criminal in its nature, and no change of venue was legally permissible. On June 15th Judge Parish made an order calling in Judge J. J. Dick to hear this and two other cases. Judge Dick appeared and heard the demurrer, which he overruled. Defendant was given time to answer, and thereupon the parties, by their attorneys, entered into a written stipulation that defendant should have until some date in November to answer, and that the action should be placed on the next calendar of the Price county circuit court, and stand for trial without notice. The term of court ended in December, 1901. The answer, among other things, set up that the defendant commenced an action in the year 1900 to compel the county clerk of Price county to place her name, as a candidate for the office of superintendent of schools of said county, upon the official ballot, and thereafter judgment was duly entered in her favor, requiring said clerk so to do. The Price county term of court began on the second Monday of December. On December 10th Judge Parish made another order, reciting that affidavits of prejudice had been filed in several cases, including this, and calling in Judge E. W. Helms to try the same. Judge Helms appeared, and proceeded to hold court. Defendant's attorney entered many objections to his jurisdiction, all of which were overruled and excepted to. The case was tried, and a verdict rendered that defendant was guilty of intruding into said office as alleged in the relation. A motion for a new trial was denied, and judgment of ouster was duly entered. Thereafter defendant secured an order to show cause, signed by Judge Dick, why the order made by Judge Parish, calling Judge Helms to preside, and all the proceedings taken before Judge Helms, should not be vacated, etc. The matter was heard and taken under advisement. February 3, 1902, Judge Dick entered an order specifically denying each ground for relief claimed in the order to show cause. Due exceptions were filed, and the defendant took her writ of error to review the judgment, and appealed from the order of Judge Dick denying the motion to vacate. Both matters were argued together, and will be here considered in one opinion.Rublee A. Cole, for appellant.

Wickham & Farr, for respondent.

BARDEEN, J. (after stating the facts).

This action is one under chapter 149, Rev. St. 1898, upon the relation of a citizen and taxpayer of Price county. It is plainly a proceeding in the nature of a civil action, although in the name of the state. State v. Baker, 38 Wis. 71;State v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697;Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482. The claim, therefore, that it is a quasi criminal action, and one in which a change of venue cannot be secured, must be overruled. The statute (section 3466) specifically authorizes the action to be brought in the name of the state by a private person on his own complaint when the office usurped pertains to a county, town, city, village, or school district. State v. Palmer, 24 Wis. 63;State v. Tuttle, 53 Wis. 45, 9 N. W. 791;State v. Mott, 111 Wis. 19, 86 N. W. 569.State v. McDonald, 108 Wis. 8, 84 N. W. 171, 81 Am. St. Rep. 878, distinctly rules against the contention of plaintiff in error.

It is urged with great earnestness that, when Judge Parish made the order calling in Judge Dick to hear the case, he exhausted his right to make any further order in the case, and that all further proceedings are without jurisdiction. The statute covering cases like this is not entirely plain. Section 2625 provides that, when an affidavit of prejudice has been filed, the judge, in lieu of granting such change of venue, may, in his discretion, retain such action without entering an order changing the place of trial, until the last day of the then current term, and in the meantime may call upon some other circuit judge to attend and hold court during such current term. It then says: “If such other judge * * * can so attend and hold court * * * the same shall be done with the same effect as if a change of venue to another circuit and a trial of such action had been had therein; but if no such judge shall so attend an order for a change of the place of trial shall be entered in each action wherein proper application has been made, on the last day of such term, and thereupon such change shall be made.” In this case the judge exercised his discretion to hold the case and call in another judge. Pursuant to such call, Judge Dick appeared; and the pending demurrer was argued, overruled, and time to answer given. Thereupon the parties entered into a written stipulation that further time for answering should be given, and that the case should be placed on the calendar at the next term of the circuit court for Price county, and stand for trial without notice. It will be observed that the statute contains no provision as to what shall be done with the action in case another judge attends, and the matter is not disposed of by final judgment. If the judge called upon to attend does not appear, then an order making a change shall be entered on the last day of the term. But in this case a judge did appear, and a trial of the legal issue was had. The defendant insists that, if the action was removable at all, an order of removal should have been entered on the last day of the term. But the statute does not say so. It is only when the judge fails to attend that such order shall be entered. We are met at this point, also, with the stipulation mentioned, that the case should remain in that circuit, and go on the calendar at the next term of court. It is a serious question whether this stipulation was not a waiver of the application for such change of venue. Without determining that question, we think the statute, despite the omission mentioned, can be so construed as to effectuate its purpose and save the rights of parties under it. When the December term of the circuit court for Price county opened, the action was still pending therein, and the affidavit of prejudice was still on file. Under the circumstances, we think the court had a right to treat the application for a change as a continuing one, and to call in another judge to hear the case, or to send it out of the circuit. If this be not so, then we have the anomaly of a pending action over which no court had jurisdiction. Judge Dick had no power or authority over it, because his right became exhausted when the term at which he was called to preside expired. Judge Parish had no right to try it, because of the filing of the affidavit of prejudice. Hence, to avoid the absurdity suggested, the statute must be construed to give him...