Franken v. State ex rel. Fuerst

• Decision Date: 21 June 1926
• Citation: Franken v. State ex rel. Fuerst, 190 Wis. 424, 209 N.W. 766 (Wis. 1926)
• Parties: FRANKEN v. STATE EX REL. FUERST.
• Court: Wisconsin Supreme Court

190 Wis. 424

209 N.W. 766

FRANKEN

v.STATE EX REL. FUERST.

Supreme Court of Wisconsin.

June 21, 1926.

Error to Municipal Court of Brown County; N. J. Monahan, Judge.

Bastardy proceeding by the State, on relation of Martha Fuerst, against Joseph Franken. Judgment adverse to defendant, and he brings error. Affirmed.

On November 3, 1924, upon complaint of one Martha Fuerst, the plaintiff in error (hereinafter called the defendant), was arrested on a warrant duly issued, and brought before said court, to which complaint the defendant pleaded guilty, waived preliminary examination, and was bound over for trial. The complainant then commenced an action against the defendant to recover damages for breach of promise, and, while the bastardy proceeding was pending in said court, and after the breach of promise case had been commenced, and on the 9th day of December, 1924, the parties entered into an alleged agreement of settlement, in writing, as follows:

“This is to certify that I release Joe Franken of all legal action that I started against him. Received of Joe Franken, December 9, 1924, $400.00 in full settlement. [Signed] Martha Fuerst; City, Green Bay, Wis.”

This alleged settlement was entered into without the knowledge of the attorneys for complainant, who had appeared in behalf of the state upon the preliminary examination, and who were also her attorneys of record in the breach of promise suit; nor was such settlement approved by the public authorities, as provided by the statutes, or by the court.

Some months after the birth of the child, and on September 28, 1925, the parties appeared in court, and, in the presence of the judge, selected a jury, as provided for in the Municipal Court Act for Brown County. The jury so selected was summoned to appear before said court on the 2d day of October, 1925, and on that day the defendant appeared and filed a plea of guilty to the complaint, and also interposed an alleged plea in bar, setting forth the alleged settlement.

On October 1st the defendant filed an affidavit of prejudice. The motion to change the venue was denied by the court, upon the ground that it was not timely made, and the alleged plea in bar was overruled. The court thereupon proceeded to take the testimony of the parties, after which judgment was ordered and entered, in the usual form in proceedings of this nature.

Smith & Smith, of De Pere, and Minahan, Minahan & Duquaine, of Green Bay, for plaintiff in error.

Martin, Martin, Martin, Clifford & McHale, of Green Bay, for defendant in error.

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

[1][2][3] It is earnestly argued by the attorneys representing the state that the Municipal Court Act of Brown County does not provide for a change of venue in the trial of a bastardy proceeding. Proceedings for change of venue are statutory in their origin, and, where no statutory provision exists authorizing a change, the right thereto is nonexistent. It has been the settled law of this state, since the case of Baker v. State, 56 Wis. 568, 14 N. W. 718, that a proceeding against a defendant for bastardy is neither a criminal nor a civil action, and that it is classed under the head of a special proceeding; that no change of venue in such a proceeding is provided for either by section 261.08, formerly section 2625, of the Statutes, or by section 356.03, formerly section 4680, of the Statutes. Under section 166.02, formerly section 1531, of the Statutes, the accused is entitled to a removal on a preliminary examination. The only other provision for a change of venue is section 166.05 of the Statutes, where a change of the place of trial may be had, where “it shall appear to the satisfaction of the court by affidavit that a fair and impartial trial cannot be had in such county, in which case the court may direct that the accused be tried in some adjoining county where a fair and impartial trial can be had.”

If any authority, therefore, exists for a change of venue in the instant case, on account of the prejudice of the trial judge, the provision must be contained in the Municipal Court Act of Brown County. The municipal court of Brown county was created by chapter 396 of the Laws of 1903. Under that act, no change of venue could be taken from said court in any criminal or bastardy examination for section 11 of said act, among other things, provides:

“The general provisions of law relative to civil and criminal actions before justices of the peace shall apply to said municipal court so far as applicable, except that no change of venue shall be taken from said court in any civil case originally commenced in said court, or in any criminal or bastardy examination, or criminal trial, except cases tried on information as hereinbefore provided.”

This chapter was amended in 1905 (Laws 1905, c. 153, § 2), in 1913, and in 1915, but such amendments in no manner affect the original act, in so far as it denies a change of venue in a bastardy examination.

In the brief of counsel for the defendant it is correctly said:

“The municipal court of Brown county was enacted by chapter 396, Laws of 1903. Therein no provision was made for change of venue, except in criminal cases.”

Section 11 of chapter 396, Laws of 1903, was amended by section 6 of chapter 184 of the Laws of 1913 to read in part as follows (the new provisions added appearing in italics):

“The general provisions of law relative to civil and criminal actions before justices of the peace shall apply to said municipal court so far as applicable; provided that said municipal court shall have full power and authority to try and determine the question of title to realty in all cases when the question of title is raised; except that no change of venue shall be taken from said court in any civil case originally commenced in said court of which a justice court would have jurisdiction or in any criminal or bastardy examination, or criminal trial, except cases tried upon information as hereinbefore provided. In all other cases of which a justice court would not have jurisdiction, any party thereto may, upon application, at any time before a jury is drawn for the purpose of a trial in said court, obtain a change of venue to the circuit court of said Brown county upon making affidavit that he has good reason to and does believe, that he cannot have a fair trial of such action in said municipal court on account of the prejudice of the judge thereof; and thereupon the said municipal court shall transmit all the papers, and a copy of the records of the proceedings in such cause properly certified to be such, to the said circuit court, which shall then proceed to hear and determine the same. * * *”

Section 5 of chapter 184 of the Laws of 1913, among other things, provides, after stating that the general provisions of law which shall be in force relative to circuit courts, etc., shall relate also to said municipal court, unless inapplicable, etc.:

“But in case of the change in the place of trial of any cause * * * of which a justice court would not have jurisdiction, or of any criminal case begun by information or of any bastardy case certified to said court, said case shall be removed to the circuit court for Brown county, unless such change is taken on the ground of prejudice of the people of said county. * * *”

[4] It will thus appear from section 5 of chapter 184 of the Laws of 1913 that the act expressly contemplated a change of venue in bastardy cases on account of the prejudice of the judge, from the municipal court of Brown county, to the circuit court of Brown county. The jurisdiction of the justice court under the general statutes is confined in bastardy cases to the examination. It has no jurisdiction to try bastardy proceedings. A bastardy trial is, therefore, included in that part of the amendment provided for by the act of 1913, which, among other things, provides, “In all cases of which a justice court would not have jurisdiction,” and the proceeding for a change of venue in that act being clearly defined. The logical and irresistible conclusion is that the law as it existed by virtue of the amendment of 1913 gave the defendant in a bastardy case a right to a change of venue on account of the prejudice of the judge.

The only other amendment to the Brown County Municipal Court Act was enacted by section 2, c. 224, of the Laws of 1915. A defendant in the trial of a bastardy proceeding in said municipal court for Brown county, therefore, is entitled to a change of venue on account of the prejudice of the judge, upon proper and timely proceedings having been taken in that behalf, unless such right granted by the amendment of 1913 has been taken away by virtue of the provisions of the amendment of 1915. That portion of the amendment of 1915 applicable to the subject reads as follows (the new provisions being indicated by italics):

“The general provisions of law relative to civil and criminal actions before justices of the peace shall apply to said municipal court so far as applicable; provided that said municipal court shall have full power and authority to try and determine the question of title to realty in all cases when the question of title is raised; except that no change of venue shall be taken from said court in any civil case originally commenced in said court of which a justice court would have jurisdiction or in any criminal or bastardy examination, or criminal trial, except cases tried upon information as hereinbefore provided. * * * In all cases of which a justice court would not have jurisdiction, wherein it shall be made to appear by affidavit that the municipal judge is pecuniarily interested in the action, is a material witness or is within the forbidden degrees of consanguinity or where, from prejudice or other cause, such affidavit states that said judge will not impartially decide in the matter, a municipal judge shall call in the county judge to try said action. That upon receiving notice...