Peterson v. Daniel Shaw Lumber Co.

• Decision Date: 19 June 1896
• Citation: 93 Wis. 500,67 N.W. 1118
• Parties: PETERSON v. DANIEL SHAW LUMBER CO.
• Court: Wisconsin Supreme Court

93 Wis. 500

67 N.W. 1118

PETERSON

v.DANIEL SHAW LUMBER CO.

Supreme Court of Wisconsin.

June 19, 1896.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Maurice C. Peterson, by his guardian ad litem, against the Daniel Shaw Lumber Company. There was a judgment of voluntary nonsuit, from which plaintiff appeals. Reversed.V. W. James, G. M. Popham, and C. T. Bundy, for appellant.

H. H. Hayden, for respondent.

CASSODAY, C. J.

This action is to recover damages for personal injuries to the plaintiff while in the employ of the defendant. The answer was served and issue joined March 8, 1895. The cause was noticed for trial and on the calendar for the term commencing March 18, 1895. June 14, 1895, the parties stipulated to the effect that the defendant might demand, within two days, and obtain a struck jury for the trial of the cause, as prescribed by statutes; that one day's notice therefor should be sufficient; that the action should be tried by the jury so obtained, the same as though all the provisions of law relating to the striking of such juries had been complied with. On the same day the defendant demanded of the clerk of the court that a struck jury be drawn as prescribed by statute, for the trial of the action. Laws 1889, c. 268 (Sanb. & B. Ann. St. §§ 2544s-2544y). The clerk forthwith delivered a certified copy of such demand to the sheriff, who thereupon made a list of 40 names, from which such struck jury was to be selected, and gave due notice to the attorneys of the respective parties of the time and place for striking such jury. Both parties attended accordingly, and each struck 12 names from the list. Thereupon the clerk issued a venire to the sheriff, requiring him to summon the 16 persons whose names remained upon the list to appear before the judge of the court, at the court room in Eau Claire, June 24, 1895, at 10 a. m., to serve as jurors. The 16 men so summoned attended as required, but, owing to the absence of the presiding judge, no proceedings were had on that day. June 25, 1895, both parties and the 16 persons so summoned as jurors attended at the place named, before the judge, whereupon, and before any other proceedings were had, the plaintiff filed his affidavit to the effect that he had good reason to believe, and did believe, that he could not have a fair trial of the action, on account of the prejudice of the judge (naming him), and moved the court to change the place of the trial of said action, but which motion was then and there denied. Thereupon the cause was adjourned to July 15, 1895, by consent of the respective parties. July 15, 1895, the 16 jurors being present, and the court ready to try the cause, the plaintiff refused to enter upon said trial, and asked to submit to a voluntary nonsuit; and thereupon, and on motion of the attorney for the defendant, it was ordered by the court that the action be, and the same was thereby, dismissed, with costs to be taxed in favor of the defendant. From the judgment entered thereon accordingly, the plaintiff brings this appeal.

Counsel for the defendant concedes that the only question presented by this appeal is whether the application for the change of venue was “made in due season,” or “made too late,” and the presiding judge certifies that question or point of law to be of such doubt and difficulty as to require the decision of this court. The affidavit was in strict compliance with the statute (Sanb. & B. Ann. St. § 2625). This being so, and the statute being imperative, it rendered the presiding judge incompetent to try the case, if the application was seasonably made. Fatt v. Fatt, 78 Wis. 635, 48 N. W. 53, and cases there cited. “If the court actually lost jurisdiction by virtue of such application, then it did not regain it by reason of any subsequent proceeding in the case.” Id. The only question, therefore, is, as stated by counsel, whether the application was seasonably made, or made too late. It has repeatedly been held that the application is too late if not made until after a jury has been called and a trial of the cause commenced. Swineford v. Pomeroy, 16 Wis. 553;Cairns v. O'Bleness, 40 Wis. 469;Grobman v. Hahn, 59 Wis. 93, 17 N. W. 545;Allis v. Distilling Co., 67 Wis. 16, 29 N. W. 543, and 30 N. W. 300;Duffy v. Hickey, 68 Wis. 380, 32 N. W. 54;Schuetze v. Insurance Co., 69 Wis. 252, 34 N. W. 90. It has also been held by this court that such application was seasonably made, “although the cause was upon the calendar for trial, and the parties had agreed that it should be referred.” Eldred v. Becker, 60 Wis. 52, 18 N. W. 722. It is claimed that the case at bar is ruled by Grobman v. Hahn, supra. That case was properly on the...