Pure Milk Products Co-op. v. National Farmers Organization

• Decision Date: 28 June 1974
• Docket Number: No. 461,461
• Citation: 64 Wis.2d 241,219 N.W.2d 564
• Parties: PURE MILK PRODUCTS COOPERATIVE et al., Respondents, v. The NATIONAL FARMERS ORGANIZATION et al., Appellants.
• Court: Wisconsin Supreme Court

Page 564

219 N.W.2d 564

64 Wis.2d 241

PURE MILK PRODUCTS COOPERATIVE et al., Respondents, v. The NATIONAL FARMERS ORGANIZATION et al., Appellants.

No. 461.

Supreme Court of Wisconsin.

June 28, 1974.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, for appellants; Boardman, Suhr, Curry & Field, Madison, Rowley & Scott, Washington, D.C., of counsel.

St. Peter & Hauer, Fond du Lac, for respondents; Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., of counsel.

WILKIE, Justice.

We first consider the request for the substitution of judge. The issue is whether that request was timely under sec. 261.08, Stats. It was not.

Sec. 261.08(1), Stats., provides:

'Any party to a civil action or proceeding may file a written request with the clerk of courts for a substitution of a new judge for the judge assigned to the trial of the case. The written request shall be filed on or before the first day of the term of court at which the case is triable or within 10 days after the case is noticed for trial. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge.'

The defendants contend that their request for substitution of judge was timely because the statute allows the request to be filed up to and within ten days after the case is noticed for trial. They point out that this case has never been noticed for trial under sec. 270.115, Stats.

Thus, the narrow question here is whether the fact that the case had not been noticed for trial made the request timely where there had already been preliminary proceedings on the preliminary injunction request.

In the 1863 case of Swineford v. Pomeroy ¹ this court construed the then applicable substitution statute to preclude such request after the trial of the action had commenced. The applicable statute at that time read: ²

'Whenever any party, in any civil action, pending in any court of record, shall apply for a change of the place of trial of such action, on account of the prejudice of the judge of such court, and shall verify such application by his oath or affidavit, the court shall change the place of trial of such action.'

This court, despite the general language of the statute, felt it had to be given a rational construction. The court stated:

'. . . It is not to be supposed that it was intended to grant a party the right to change the place of trial after a jury is empanneled and testimony has been given in the cause. Such an idea is not to be entertained, except upon the clearest evidence that this is the express meaning and intention of the statute. Otherwise a person whose moral sensibilities were not very acute and nice, might, after entering upon the trial of the cause, because the judge ruled contrary to his expectations or unfavorably to him, apply for a change of the place of trial, and obtain it. This practice, of course, would frequently be attended with the greatest inconvenience and injustice. But we are decidedly of the opinion that the statute was never intended to apply to such a case, or grant any such right, at that stage of the cause. . . .' ³

This limitation has been applied in several cases since that time. ⁴

Plaintiffs contend that the instant case comes within this rule, asserting that the trial was commenced at the hearing on the temporary injunction because evidence was adduced which could be used in the final determination on the merits. We think not.

In People v. Rice Associates ⁵ a New York court held that 'trial' in its commonly accepted meaning is that part of a civil or criminal proceeding beginning with the opening of the case to the jury and ending with the verdict. And in Molen v. Denning & Clark Livestock Co. ⁶ the Idaho court quoted with approval the definition of 'trial' as set forth in Corpus Juris. "A trial may be said to have commenced when all of the preliminary questions have been determined and the jury, or the court in the absence of a jury, enters on the examination of the facts for the pupose of determining the controversy." And in Superior Oil Co. v. Superior Court ⁷ it was contended that a trial had been commenced with the hearing of a motion for a preliminary injunction. The court was concerned with a statute which required that a case be dismissed if not brought to trial within five years. The court held that under the practice in California it is assumed that a trial on the merits follows the hearing and issuance of a preliminary injunction. Thus, we conclude that the 'trial' was not actually commenced at the time of the hearing on the preliminary injunction within the meaning of that line of Wisconsin cases holding that a request for substitution comes too late if made after the commencement of the trial of the action.

But is the request too late if made, as here, following the hearing on the temporary injunction motion?

Many other jurisdictions have held that an affidavit of prejudice does come too late if filed after the hearing of contested preliminary matters.

In McClenny v. Superior Court of Los Angeles County, ⁸ the court described the interpretations placed on the California substitution statute which provided that the motion could not be made 'after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.' The court cited several cases which had held that an affidavit of prejudice was filed too late when filed after the judge has decided preliminary contested matters. In Honolulu Roofing Co. v. Felix ⁹ the Supreme Court of Hawaii construed a substitution statute requiring filing of the motion 'before the trial or hearing of the action or proceeding' to require that filing precede the hearing of preliminary contested motions. In People v. Savaiano ¹⁰ the Illinois statute requiring that the motion be made '(w)ithin 10 days after a cause . . . has been placed on the trial call of a judge' was construed. It was said to be well settled that a substitution petition must be filed at the earliest practical moment and that petitions delayed until after the trial judge has by his rulings passed upon substantive issues and indicated his views on the merits of the cause came too late.

In State v. Armijo ¹¹ the New Mexico Supreme Court construed a statute requiring that when a case is at issue and is to be tried at a term of court the affidavit must be filed not less than ten days before the beginning of the term to require filing before any contested preliminary proceedings are had. The court held that an affidavit of prejudice is timely if filed before the court has made any ruling on any litigated or contested matter whatsoever in the case.

'. . . We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge.'

In Swineford ¹² our court decided that the legislature could not have intended by the wording of the then-controlling statute to allow a change of judge after the commencement of the trial. We conclude that the legislature could not have intended by the wording of sec. 261.08, Stats., to allow a change after the hearing of a contested motion which implicates the merits of the action.

The right to a substitution of a judge can also be waived by participating in the trial of the action after a petition has been filed. ¹³ That right can also be waived by participation in preliminary motions in which the judge is allowed to receive evidence which of necessity is used and weighed in deciding ultimate issues as determined by the Arizona court in Marsin v. Udall. ¹⁴

In Marsin v. Udall the court qualified the holding in an earlier Arizona case which stated that where a party permitted the judge to rule in any contested matter whatsoever he waived his right to disqualify the judge. The prior Arizona case had involved an application for a temporary injunction in which voluminous evidence was taken including the testimony of witnesses. The court in Marsin stated:

'. . . We think under these circumstances the result reached that the affidavit in that case was untimely filed was correct for the reason that the parties had permitted the judge to accept evidence which of necessity would have a bearing on final determination of the matter on the merits. . . . The effect of all this was that Judge Barry had partially tried the issue to be ultimately decided. This does not mean that all evidence submitted on a preliminary motion would operate to shut off a subsequent affidavit of bias and prejudice. Evidence of collateral matters not bearing on the final decision cannot constitute a waiver of the right to challenge the fairness of a judge, but this court is committed to the rule that if a judge is allowed to receive evidence which of necessity is to be used and weighed in deciding the ultimate issues, it is too late to disqualify him on the ground of bias and prejudice.' ¹⁵

The sole issue on the merits on this appeal is whether the trial court abused its discretion in granting the temporary injunction.

Sec. 268.02, Stats., provides that a temporary injunction may be granted when it appears from his pleading that a party is entitled to judgment and any part thereof consists of restraining some act the commission of which during the litigation would injure him. The granting of a temporary injunction is a matter within the discretion of the trial court and the sole issue on appeal is whether the trial court abused its discretion. ¹⁶ However, injunctions are not to be issued lightly, ¹⁷ but only where necessary to preserve the status quo of the parties and where there is irreparable injury. ¹⁸

In Mogen David Wine Corp. v. Borenstein ¹⁹ this court quoted with approval from an Iowa case which stated:

"The writ (temporary injunction) is to a great extent a preventive remedy and where the parties are in dispute concerning their legal...