Selleck v. City of Janesville

• Citation: 75 N.W. 975,100 Wis. 157
• Parties: SELLECK v. CITY OF JANESVILLE.
• Decision Date: 23 June 1898
• Court: United States State Supreme Court of Wisconsin

100 Wis. 157

75 N.W. 975

SELLECK

v.CITY OF JANESVILLE.

Supreme Court of Wisconsin.

June 23, 1898.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Mary E. Selleck against the city of Janesville. There were verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Bardeen, J., dissenting.Horace A. McElroy and William Ruger, for appellant.

Fethers, Jeffris, Fifield & Mouat, for respondent.

CASSODAY, C. J.

This is an action to recover damages for personal injuries sustained by reason of an alleged defective sidewalk on the westerly side of South River street, in Janesville, about 1 o'clock in the afternoon of October 18, 1893. Issue being joined and trial had, the jury returned a verdict in favor of the plaintiff, and assessed her damages at $5,000. From the judgment entered thereon the defendant brings this appeal.

It appears from the record that after the cause came on for trial, May 17, 1897, and the jury had been sworn, the plaintiff's counsel stated to the court, in substance, that the plaintiff, who resided near Evansville, was unable to attend the trial at the court house, and asked leave to take her testimony, and requested that the presiding judge and the jury be present at her home at the taking of her testimony; that the defendant objected to such request, and to having any part of the cause tried away from the court house, and then offered to waive any objection as to notice, and to consent to take her deposition in the ordinary way, and allow it to be read on the trial. The court, however, granted the plaintiff's request, to which the defendant excepted; and thereupon the presiding judge and the jurors sworn in the case were taken to the plaintiff's home, near Evansville, in charge of the sheriff; and the plaintiff was carried into their presence upon a lounge, and was sworn and testified as a witness in her own behalf while so lying upon the lounge, and being administered to by her physician. Error is assigned because such testimony of the plaintiff was so taken at her home, in the presence of the jurors and the presiding judge, instead of being taken in the court house in Janesville. The statute provides that: “Each county shall at its own expense provide at the county seat, a court house * * * and keep the same in good repair. * * * Until such court house be provided or when the court house shall from any cause become unsafe, inconvenient or unfit for holding court, the county board shall appoint some other convenient building, at the county seat, for that purpose temporarily, and such building shall then be deemed the court house for the time being for all purposes.” Sanb. & B. Ann. St. § 656. The statute also provides that: “Whenever it shall be deemed unsafe or inexpedient by reason of certain calamities, therein mentioned, to hold any court at the time and place appointed therefor, the justices or judges of the court may, by an order in writing, appoint any other place within the same county, and any other time for holding the same; and the said adjourned session shall be taken as part and continuance of the term and all proceedings in the court may be continued at the adjourned times and places and be of the same force and effect as if the court had continued its session at the place it was holden before such adjournment.” Id. § 2574. This court has held “that a county can only have one county seat, and that the court house must be at the county seat, except in the special cases prescribed, when from necessity courts may be temporarily held elsewhere.” Pepin Co. v. Prindle, 61 Wis. 307, 21 N. W. 254. To the same effect, Board v. Gwin (Ind. Sup.) 36 N. E. 237. It will be observed that our statute does not expressly require the circuit court to be held at the county seat, as in some of the states (Funk v. Carroll Co. [Iowa] 64 N. W. 768), nor as required of the county courts in this state (Rev. St. § 2440). Nevertheless it would certainly be error to hold a circuit court at a place other than the county seat, except in cases prescribed by statute. We cannot regard the proceeding at the home of the plaintiff as being taken in open court, although it must be regarded as a proceeding in the action. The important question is whether the irregularity in the manner of taking the plaintiff's testimony was such as should work a reversal. There is no pretense that she was not regularly sworn before giving her testimony, nor that any of the jurors or the presiding judge was absent during any portion of the time her testimony was being taken, nor that the defendant's counsel did not have and exercise the full opportunity to cross-examine her at length. The proceeding was somewhat similar to a view of “the premises or place in question, or any property, matter or thing, relating to the controversy between the parties,” by the presiding judge and jury, which a trial court, in a proper case, is expressly authorized by statute to order. Rev. St. § 2852. While we may not be willing to go to the extent of some courts in upholding trials and adjudications had outside of the court house, yet the authorities are ample to support the proposition that the taking of the plaintiff's testimony in the manner indicated did not deprive the court of jurisdiction, nor nullify the judgment, but was, at most, an irregularity. Le Grange's Lessee v. Ward, 11 Ohio, 257; Mahon v. Harkreader, 18 Kan. 383; State v. Peyton, 32 Mo. App. 522;Bates v. Sabin, 64 Vt. 511, 24 Atl. 1013;Reed v. State (Ind. Sup.) 46 N. E. 135. Being a mere irregularity, the question recurs whether it is such an error as should work a reversal. The statute expressly requires this court to disregard any error in the proceedings which does not affect the substantial rights of the adverse party, and declares that no judgment shall be reversed or affected by reason of such error. Rev. St. § 2829. This court has applied that statute in cases too numerous to mention. In our judgment, the substantial rights of the defendant were not prejudiced or affected by the taking of the plaintiff's testimony in the manner indicated. The theory of counsel seems to be that the plaintiff's appearance upon the lounge, with her attending physician, may have created sympathy on the part of the jury; but that is just as likely to occur in any case where the injured party appears in court as a witness upon the trial. If the condition and appearances of such party are genuine, then there is no good reason for concealing them. If, on the contrary, they are feigned, then the jury are quite likely to detect the pretension; and so the influence is liable to operate against the party, as well as in his favor, according to the facts. We must hold that the taking of the plaintiff's testimony in the manner indicated, although irregular, is not reversible error. We perceive no error in allowing the plaintiff to exhibit her actual condition to the jury, nor in allowing her daughter to weep.

Error is assigned by reason of exceptions taken to certain hypothetical questions put to the physicians. These questions are lengthy. It is enough to say that they appear to contain nothing but what is supported by evidence. Upon objection being made, counsel were informed that if there was anything as to the plaintiff's condition not embraced in the question, and the defendant's counsel would point it out, then it might be added, but nothing additional was suggested. The criticism, that the question was indefinite, is without foundation. The mere fact that the questions were in part based upon the personal examination and knowledge of such physicians did not make them objectionable. The rules of law applicable to such questions have frequently been stated by this court in cases cited by the respective counsel, and need not be...