Starkweather v. Johnson

• Decision Date: 21 September 1886
• Parties: STARKWEATHER v. JOHNSON.
• Court: Wisconsin Supreme Court

66 Wis. 469

29 N.W. 284

STARKWEATHER

v.JOHNSON.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Ashland county.

This action was commenced in the circuit court for Portage county, and upon issue joined a trial was had, and a verdict rendered in favor of the plaintiff, which was set aside on motion of the defendant. Upon application of the defendant, and an affidavit of prejudice of the judge, the venue was ordered to be changed to the circuit court for Ashland county, October 5, 1885. That order was filed on that day with the clerk of the circuit court for Portage county, who on the same day, under the seal of the court, certified to the papers and records in the cause, and that they were then “transmitted to the circuit court of Ashland county.” The plaintiff's attorney testified that he paid the clerk's fees on the same day. As a matter of fact, the papers were not put in the express office to be carried to Ashland until October 28, 1885, and did not reach Ashland until October 30, 1885; and said clerk testified that his fees for such transmission were not paid until October 27, 1885. December 17, 1885, the plaintiff's attorneys served notice of trial of said cause in the circuit court for Ashland county, at the January term thereof for 1886, which service was admitted by the written indorsement of the defendant's attorneys thereon. December 19, 1885, the defendant's attorneys served on the plaintiff's attorney a proposed verified amendment to the answer, based upon the records, papers, and affidavits, with notice of a motion for leave to so amend such answer, to be made in the circuit court for Ashland county at the January term thereof for 1886, which motion papers were entitled in said last-mentioned court. December 19, 1885, the defendant's attorneys also served on the plaintiff's attorney a written notice, offering to allow the plaintiff to take judgment in said action against the defendant for $36, and interest thereon from the date of the contract described in the complaint, together with costs of suit, which notice was entitled in the circuit court for Ashland county. January 19, 1886, the defendant's attorneys objected to the trial of said cause by that court, and moved the circuit court for Ashland county for an order striking the cause from the calendar, and for the return of the papers therein to the clerk of the circuit court of Portage county, for want of jurisdiction, and because the...