State ex rel. Bessie v. Halsey

• Decision Date: 30 January 1912
• Parties: STATE EX REL. BESSIE v. HALSEY, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

148 Wis. 171

134 N.W. 362

STATE EX REL. BESSIE

v.HALSEY, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Jan. 30, 1912.

Mandamus by the State, on the relation of Warren Bessie, against L. W. Halsey, Circuit Judge. Writ awarded.Husting & Husting, for relator.

Glicksman, Gold & Corrigan, for respondent.

PER CURIAM.

Within 20 days after the service of a summons and complaint, in an action for slander and libel, the defendant served upon the plaintiff's attorneys a demand for a change of the place of trial of said action to Winnebago county, “for the reason that the said defendant, at the time of the commencement of said action and for many years prior thereto, resided and still resides in said county of Winnebago.” There was no consent to the change. The defendant moved for an order changing the place of trial, and the court denied the motion, apparently upon the authority of Anderson v. Arpin Hardwood Lumber Co., 131 Wis. 34, 110 N. W. 788. The cases are, however, distinguishable. In the Anderson Case, there were two counties, to either of which the defendant was entitled by statute to remove the cause for trial. The instant case is of such a nature that the statute gives the defendant the right to remove it to only one county, namely, Winnebago county, named in the demand. Under the facts in the instant case, Winnebago county is by statute the proper county, and it would be quite a technicality to hold that the movant must ratify the statute by again declaring in his demand what the statute has already declared. The demand must be held sufficient.

The circuit judge will therefore vacate his order denying the motion to change the place of trial, and enter an order granting said motion, as provided by statute. A peremptory writ of mandamus is awarded to that effect against the respondent, but without costs.