Fraser v. Fargo (In re Fraser's Will)

• Decision Date: 17 April 1908
• Citation: 116 N.W. 3,135 Wis. 401
• Parties: IN RE FRASER'S WILL. FRASER ET AL. v. FARGO ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 401

116 N.W. 3

IN RE FRASER'S WILL.FRASER ET AL.

v.FARGO ET AL.

Supreme Court of Wisconsin.

April 17, 1908.

Appeal from Circuit Court, Jefferson County; George Grimm, Judge.

Application by Mattie Fargo and others for the probate of the will of David G. Fraser, deceased. From an order of the circuit court, denying an application of contestants, E. J. Fraser and others, for a change of venue, contestants appeal. Appeal dismissed.

This is an appeal from an order of the circuit court for Jefferson county, made July 15, 1907, denying the application of the contestants of an instrument purporting to be the last will and testament of David G. Fraser, deceased, for a change of the place of trial of said action. The will had been admitted to probate in the county court for Jefferson county, notwithstanding the objections of the contestants, who thereupon appealed to the circuit court by filing the usual notice and an undertaking the sufficiency of which is questioned. The appeal was allowed by the county court, whereupon an affidavit of prejudice was filed against the presiding judge of the circuit court by the contestants, and an application made for a change of the place of trial. The order was denied by the presiding judge for the reason that the court had “neither jurisdiction of the person of the proponent of said will nor of the subject-matter thereof.” This was upon the ground that the undertaking on appeal was insufficient.

Marshall, J., dissenting in part.Tenneys, Hall, Davies & Sanderson, for appellants.

C. S. Greenwood and R. B. Kirkland, for respondents.

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

This is an appeal from an order denying the application of the appellants to change the place of trial on the ground of the prejudice of the presiding judge. Since the enactment of chapter 212, p. 356, Laws of 1895, such orders have been uniformly held to be not appealable. Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432;Waukesha County Agricultural Society v. Wisconsin Central Railway, 117 Wis. 539, 94 N. W. 289.

It is urged on behalf of the appellant that the order appealed from is subject to review here, because it practically determines the action and prevents a judgment from which an appeal may be taken, within the provisions of section 3069 of the Wisconsin Statutes of 1898. The basis for this contention is the reason assigned by the presiding judge for denying the application, namely, that the court had no jurisdiction of the person of the proponent, nor of the subject-matter of the litigation. It is sufficient to say that the presiding judge, after the affidavit of prejudice was filed, was not competent to determine the question of jurisdiction. This statement in the order is not conclusive, as the court did not direct that the appeal be dismissed. The cause is still pending in the circuit court, subject to such further order as may be made therein. The effect of the application for a change of venue is to deprive the presiding judge of further power, except to carry out the statutory provisions on the subject; that is, to make a proper order calling in another judge, or to remove the cause to another jurisdiction. Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177;Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52.

This court holds that the order appealed from is simply an order denying a change of venue, which is not appealable.

The appeal is dismissed.

MARSHALL, J.

I concur in the decision dismissing the appeal upon the ground that the order appealed from is merely one denying a motion for a change of venue. Such an order has been repeatedly held to be not appealable...