State ex rel. Bobroff v. Braun
| Decision Date | 09 November 1932 |
| Citation | 245 N.W. 176,209 Wis. 483 |
| Parties | STATE EX REL. BOBROFF v. BRAUN, CIRCUIT JUDGE. |
| Court | Wisconsin Supreme Court |
Original action in mandamus by the State, on the relation of B. L. Bobroff, to compel August E. Braun, as Judge of the Second Judicial Circuit and Circuit Judge of Milwaukee County, to vacate an order changing the place of trial in relator's action against W. Lindblom.--[By Editorial Staff.]
Writ granted.
Original action of mandamus by the state, upon the relation of B. L. Bobroff, to compel August E. Braun, as judge of the circuit court of Milwaukee county, to vacate an order changing the place of trial in the action of B. L. Bobroff v. W. Lindblom, from Milwaukee county to Kenosha county.
An alternative writ was issued on August 18, 1932. On February 4, 1932, the petitioner entered judgment by cognovit in the circuit court of Milwaukee county, against W. Lindblom, in the sum of $5,406.20. This judgment was entered upon a judgment note containing the following provisions: “I hereby authorize, without power of revocation, any attorney of any court of record, to appear for me in any such court, in term time or vacation, at any time, after this obligation becomes due; waive process and service thereof, and confess judgment against me and in favor of the holder of this note, for the sum with interest, as may be due hereon, together with costs of such proceeding and to waive and release all errors which may intervene in any such proceedings, and to consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.”
On May 27, 1932, Lindblom, through his attorneys, served upon relator's attorney a notice of motion to vacate the judgment, together with a copy of a verified answer. The motion came on for hearing before Hon. Otto H. Breidenbach, circuit judge, on the 4th of June, 1932, and an oral order was made permitting Lindblom to file an answer, and setting aside the judgment upon payment of costs. On June 10, 1932, a formal written order, incorporating the terms of this oral order, was signed and served upon relator's attorney. On the same day Lindblom's attorneys served a notice of retainer and a demand for a change of venue to Kenosha county, this county being the residence of Lindblom. On June 29th Lindblom's attorneys served an affidavit and order to show cause why the trial of the action should not be changed to Kenosha county. The motion was heard by the respondent, August E. Braun, circuit judge, and on the 1st of August an order was made and entered by the respondent changing the place of trial of said action from Milwaukee county to Kenosha county. Thereafter, on August 18, 1932, the alternative writ of mandamus was issued out of this court.John L. Newman and Raymond J. Cannon, both of Milwaukee, for relator.
Randall, Cavanagh, Stephenson & Mitteistaed, of Kenosha, for respondent.
The question here involved is whether the defendant, after the opening of a judgment by cognovit, entered in a county other than that in which he resides, may, as a matter of right, have a change of venue to the county of his residence.
[1] The right to a change of venue is entirely statutory. State ex rel. Shawano County v. Werner, 181 Wis. 275, 194 N. W. 815. Hence there must be found in the statutes the basis for defendant's right to a change of the place of trial. Section 261.01, Stats., provides:
“The proper place of trial of civil actions is as follows, respectively: * * *
Other actions. Seventh. Of any other action, the county in which any defendant resides at the commencement of the action; or if neither defendant resides within this state, any county which the plaintiff designates in his complaint.”
Section 261.02 provides that “in every action whatever the county designated in the complaint shall be the place of trial thereof, unless the same be changed in the time and manner hereinafter provided” (except actions relating to real property).
Section 261.03 provides that, when the county designated in the summons or complaint is not the proper place of trial, the defendant, within twenty days after the service of the complaint, may serve upon the attorney for the plaintiff a written demand that the trial be held within the proper county. The section provides that within five days after the service of this demand the plaintiff's attorney may serve a written consent that the place of trial be changed. If...
To continue reading
Request your trial
- Fed. Mortg. Co. v. Simes
-
State ex rel. Hartwig's Poultry Farm, Inc. v. Bunde
...213 Wis. 141, 250 N.W. 753; takes place, 5 and (2) where the acceptance (1930), 201 Wis. 26, 229 N.W. 61. 1 See State ex rel. Bobroff v. Braun (1932), 209 Wis. 483, 245 N.W. 176; State ex rel. Meyer v. Park (1921), 174 Wis. 452, 183 N.W. 165.2 (1910), 143 Wis. 564, 128 N.W. 445, 33 L.R.A.,N......
-
In re Greybull Valley Irr. Dist.; Donovan,, Irrigation Com'rs. v. Owen,, 2061
... ... 250. The P. W. A. cannot ... repudiate and vary the state law, merely because it is a ... Federal agency. The whole record ... v. Donovan, ... 59 Iowa 76, 12 N.W. 779; State v. Braun, (Wis.) 245 ... N.W. 176; Tucker v. State, 35 Wyo. 430; 1 C. J. S ... See note, 102 A. L. R. 397-401. In the case of State ex ... rel. v. Riley, 203 Mo. 175, 101 S.W. 567, it appeared ... that the statute ... ...
-
Meier v. Purdun
...a substantial defense is pleaded, even though it is attacked as sham, the court should permit its presentation. State ex rel. Bobroff v. Braun, 209 Wis. 483, 245 N.W. 176. " 'Plaintiff may be entirely correct in his contention that defendant will be unable to establish its defense by proof,......