Lee v. Buckheit

• Citation: 4 N.W. 1077,49 Wis. 54
• Parties: LEE v. BUCKHEIT.
• Decision Date: 30 March 1880
• Court: United States State Supreme Court of Wisconsin

49 Wis. 54

4 N.W. 1077

LEE

v.BUCKHEIT.

Supreme Court of Wisconsin.

Filed March 30, 1880.

Appeal from circuit court, Dane county.

J H Carpenter, for appellant.

Harlow Pease, for respondent.

COLE, J.

The ruling in McLeod v. Bertschy, 30 Wis. 324, would seem to be decisive upon the question of the applicability of this order. True, in that case the order appealed from denied a motion to strike the cause from the calendar, while here the appeal is from an order striking it from the calendar. But this form of the order can make no difference as to its applicability, when its character is considered. The order was not in the nature of one striking the cause from the calendar merely for the term, but was, in effect, a decision that the court had no jurisdiction of the cause because the venue had been changed. Now, as claimed by the counsel for the plaintiff, if the order changing the venue had in fact been vacated by operation of the statute, and the cause was properly on the calendar, the order striking it therefrom not only prevented a trial in the circuit court for Dane county, but everywhere else. It is therefore manifest that the order essentially involved the merits of the action, and was appealable.

The question then is, had the order changing the venue been vacated by reason of the failure of the defendant to pay the clerk's fees within the time limited? Section 2627, Rev. St., provides that the party procuring the change of venue shall pay the clerk's fees before the papers are transmitted; and it further declares that “if such transmission be not made within 20 days from the making of the order to change the place of trial, or the filing of the record of its affirmance on appeal, if directly appealed from, unless such time be extended, such order shall be deemed vacated and no change for the same cause thereafter made.” There is no pretence that the defendant attempted to comply with this provision, and we have no doubt of its application to the case. Section 4980, Rev. St.; Kopmeier v. O'Neil, 47 Wis. 593. The order changing the venue was affirmed in this court, and the case remitted to the Dane circuit court, April 11, 1879. It was duly noticed for trial at the November term, by the plaintiff, and was properly upon the calendar. The defendant failing to pay the clerk's fees, by the terms of the statute the order changing the venue became vacated and the jurisdiction of the court over the cause was restored.

But it is claimed by...