Stahl v. Broeckert

Decision Date09 March 1918
PartiesSTAHL v. BROECKERT ET AL.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Appolonia Stahl against William Broeckert and others in the Milwaukee county circuit court. After changes of place of trial, the Manitowoc county circuit court dismissed the action. From an order of the latter court, restraining plaintiff from proceeding in the Milwaukee court, which claimed jurisdiction, plaintiff appeals. Reversed and remanded.

This action was commenced in the Milwaukee county circuit court by the service of summons early in the month of January, 1914, for the recovery of damages for fraud alleged to have been committed by the defendants on the plaintiff. Defendant Broeckert lived in Manitowoc county. The Stahls lived in Racine county. January 8, 1914, Broeckert's attorneys served notice of retainer and appearance. January 20th complaint was served on Broeckert's attorneys. January 24th Broeckert served demand for change of place of trial to either Manitowoc or Racine county. January 29th plaintiff served a written consent to change the place of trial to Racine county. February 12th defendant Broeckert served his answer to the complaint, which was entitled in the circuit court for Racine county, and plaintiff's attorneys admitted service on such answer. Early in March plaintiff's attorneys served notice on attorneys for defendant Broeckert that said action would be brought to trial at the April term of the Racine county circuit court. Thereafter attorneys for Broeckert moved in the Racine county circuit court for an order changing the place of trial to Manitowoc county on the grounds of convenience of witnesses. Plaintiff's attorneys appeared in the Racine county circuit court on the 20th day of March and opposed the motion, and on the 26th day of March the Racine court made an order transmitting the case to Manitowoc county, after copies of all pleadings and other papers in the case had been filed with the clerk of that court; the original papers not having been transmitted to that court from the Milwaukee circuit court.

On March 23d Judge Halsey, of the Milwaukee county circuit court, issued an order requiring the defendant Broeckert to show cause why the proceedings relating to the change of place of trial from Milwaukee county should not be vacated and set aside, and staying all proceedings in said action, except to resist said motion. A copy of this order was mailed to Broeckert's attorneys, who returned it, refusing to accept service thereof. They did not appear to contest such order to show cause in the Milwaukee county circuit court. Upon the hearing of said order to show cause the Milwaukee court made an order vacating all proceedings relating to the change of the place of trial of said action from Milwaukee, and placed said cause on the April, 1914, calendar of the Milwaukee circuit court for trial as an issue of fact for the jury. May 23, 1914, defendant Broeckert served on plaintiff's attorneys notice of trial, entitling the case in the circuit court for Manitowoc county. Plaintiff's attorneys admitted service on this notice. On June 9, 1914, the case having been reached for trial on the Manitowoc calendar, and plaintiff having failed to appear, the case was dismissed for want of prosecution. On or about the 11th day of May, 1917, the attorneys for the defendant Broeckert learned that the case was on the day calendar of the Milwaukee county circuit court and would soon be reached for trial. They then procured from the circuit court of Manitowoc county an order requiring the plaintiff to show cause why he should not be restrained from proceeding in the Milwaukee court. Upon the hearing of such order to show cause the Manitowoc county circuit court made an order restraining the plaintiff from proceeding further with the case in the Milwaukee county circuit court, and from that order the plaintiff appealed.

Kerwin, Eschweiler, and Vinje, JJ., dissenting in part.Lorenz & Lorenz, of Milwaukee, for appellant.

Hougen & Brady, of Manitowoc, for respondent.

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

[1][2] The demand of Broeckert for a change of the place of trial to either Manitowoc or Racine counties was duly and seasonably made. The demand was that the trial “be had within the proper county, to wit, Manitowoc county, or Racine county, in the state of Wisconsin. The reason this demand is made is that the county designated in the summons and complaint in said action is not the proper place of trial therefor, because neither of the defendants at the time of nor before the service of the summons and complaint in said action was a resident of Milwaukee county; that said William Broeckert, defendant, at the time of and before the service of the summons and complaint in said action, was and still is a resident of said Manitowoc county, and said defendants Hugo Stahl and Bertha Stahl, at the time of and before the service of the summons and complaint in said action, were and each of them was, and they still are and each of them is, a resident of Racine county, Wisconsin.” The demand was in proper form. Anderson v. Arpin Hardwood Lumber Co., 131 Wis. 34, 110 N. W. 788. Within the time required by section 2621, Wisconsin Statutes, the plaintiff's attorneys served a written consent that the place of trial be changed to Racine county. This ipso facto changed the place of trial. No order of the court was necessary, and it became the duty of the plaintiff to procure a transmittal of the papers to the clerk of that court. Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468;Tucker v. Grover, 53 Wis. 53, 9 N. W. 820;Anderson v. Arpin Hardwood Lumber Co., 131 Wis. 34, 110 N. W. 788.

[3] Objection is made to the jurisdiction of the Racine county circuit court because all defendants did not join in the application for change of the place of trial. It has been held that all defendants, or all similarly situated, should join in an application for a change of venue on the ground of the prejudice of the judge. Will of Rice, 150 Wis. at page 455, 136 N. W. 956, 137 N. W. 778, and cases there cited. But it has not been so held, so far as we are aware, respecting an application for a change of the place of trial on the ground that the action was not commenced in the proper county, and we do not think that it should be. The statute prescribes the proper place of trial. When an action is commenced in an improper county, it is in defiance of statutory provisions. The plaintiff has no right to have the action tried therein, unless the right to have it tried in some proper county is waived by defendants through failure timely to take the necessary steps to have the place of trial changed. If any of the defendants demand that the action be tried in the proper county, the plaintiff is in no position to object. He should have brought the action in the proper county in the first instance. He should not be permitted to profit by his disregard of statutory requirements, and force a trial of the action in an improper county against the demand of any of the defendants that the action be had in the proper county. In other words, the statute fixes the proper place of trial, and any defendant has a right to have the action tried in some proper county, even though such right be not insisted upon, or, for that matter, desired by all of the defendants. Furthermore, it has been held that, even where the application for a change of the place of trial is made upon the grounds of the prejudice of the judge, such defendants as have not appeared in the action need not join in the application. Wolcott v. Wolcott, 32 Wis. 63;Eldred v. Becker, 60 Wis. 48, 18 N. W. 720.

[4] The statement is made in respondent's brief that the defendants Hugo J. and Bertha Stahl did not appear in the action. Appellant makes no denial of this statement. While the record discloses no proof of nonappearance on the part of these defendants, there is nothing in the record to indicate that they ever did appear in the action. Under this state of the record we are justified in the conclusion that the Stahls defaulted, and even though it were necessary that all defendants unite in an application for a change of the place of trial on the ground that it was not commenced in the proper county, it was not necessary for the Stahls to join in this application, because they had made no appearance in the action.

[5][6] But there is another very effectual answer to the contention of the appellant that the circuit court of Racine county did not acquire jurisdiction of the case. On March 2, 1914, plaintiff's attorneys served upon the attorneys for the defendant Broeckert a notice that the action would be brought to trial at the April term of the circuit court for ...

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    • United States
    • Utah Supreme Court
    • March 28, 1932
    ... ... Co. v. Mining Co., 4 Cal.App. 369, 88 P. 290; ... State ex rel. Wilkins v. Tryholm, 139 Minn ... 389, 166 N.W. 533; Stahl v. Broeckert, 167 ... Wis. 113, 166 N.W. 653; Stauber v. Stauber, ... 200 Ill.App. 137; Fisher v. Fiske, 96 Okla ... 36, 219 P. 683; State ex ... ...
  • Aparacor, Inc. v. Department of Industry, Labor and Human Relations
    • United States
    • Wisconsin Supreme Court
    • August 25, 1980
    ...sec. 801.50(9) and that venue is in Dane County. Accordingly, the case must be removed to that county. See, e. g.: Stahl v. Broeckert, 167 Wis. 113, 117, 166 N.W. 653 (1918); State ex rel. Klabacka v. Charles, 36 Wis.2d 122, 126, 152 N.W.2d 857 (1967). Aparacor's arguments concerning "the c......
  • Frederickson v. Schaumburger
    • United States
    • Wisconsin Supreme Court
    • November 9, 1932
    ...adjudicata in any of its aspects. This being true, the granting of this order constituted error under the doctrine of Stahl v. Broeckert, 167 Wis. 113, 166 N. W. 653. For the foregoing reasons it is our conclusion that the order overruling the demurrer to the cross-complaint should be affir......
  • State ex rel. Shawano Cnty. v. Werner
    • United States
    • Wisconsin Supreme Court
    • July 14, 1923
    ...198, 186 N. W. 732. In these cases, the Anderson Case, supra, was distinguished, but not overruled, and it was cited in Stahl v. Broeckert, 167 Wis. 113, 166 N. W. 653, where a similar question arose and a demand was made in proper form and approved. We conclude that in this case neither de......
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