State ex rel. Klabacka v. Charles
| Citation | 36 Wis.2d 122,152 N.W.2d 857 |
| Parties | STATE ex rel. Robert KLABACKA, Relator, v. Lewis J. CHARLES, Circuit Judge of the 15th Judicial Circuit Respondent. |
| Decision Date | 03 October 1967 |
| Court | Wisconsin Supreme Court |
Anderson, Bylsma & Eisenberg, Madison, for relator.
DeBardeleben & Donlin, Park Falls, for respondent.
All the parties to this action are in agreement that the proper place for trial of the underlying malpractice action is in Dane county, where the defendants in fact resided at the time of the service of the summons and complaint. The controlling statute is sec. 261.01(12), Stats., which provides:
Sec. 261.03, Stats., under which the defendants proceeded, provides:
The respondent, Judge Charles, concluded the demand was insufficient to meet the statutory requirements set forth above. In an exhaustive memorandum opinion he pointed out that, although the demand complies with the requirements of naming the proper county, Dane in this instance, the statute also requires that the reason therefor must also be incorporated in the demand. He further points out that, although two reasons are given in the demand, both of them are legally insufficient. It is clear that the respondent is correct in that respect.
In the type of action being considered, the fact that the acts did not occur in Price county is not a reason for changing the venue to Dane county, and the statement that the defendants do not reside in Price county is insufficient because where they reside at the time of the filing of the demand is irrelevant. Sec. 261.01(12), Stats., provides that the proper county shall be one 'in which any defendant resides at the commencement of the action.'
The defendants contend, however, that if a defendant is not a resident at the time of the commencement of the action of the county in which the action is brought, he has the absolute right to have the action removed to his county of residence and that this determination is not a matter of judicial discretion. The right to such a transfer is absolute if sec. 261.03, Stats., is complied with, and this court has so held in Maher v. Davis & Starr Lumber Co., 86 Wis. 530, 57 N.W.2d 357 (1893); State ex rel. Schauer v. Risjord, 183 Wis. 553, 198 N.W. 273 (1924).
It is clear, however, that the relator's demand was not in strict compliance with the statutory requirements. No proper reasons were stated therein. The relator argues, however, that even though there was not strict compliance, this court has previously held that all that is required is substantial compliance with the statute. In the case of State ex rel. Schauer v. Risjord, supra, a statute similar to sec. 261.03, Stats., was considered by the court. The statute at that time provided that:
'When the county designated in the summons or complaint in any action is not the proper place of trial thereof the defendant may, within twenty days after the service of the complaint, serve upon the attorney for the plaintiff a demand in writing that the trial be had within the proper county, specifying it, unless there be more than one such county, and the reason therefor. * * *'
The defendant therein served his demand upon the plaintiff within twenty days following the service of the summons but prior to the service of the complaint. Mr. Justice Rosenberry stated:
'The right to procure a change of venue upon demand is purely a statutory right, and substantial compliance with the statute is necessary * * *.' State ex rel. Schauer v. Risjord, supra, p. 556, 198 N.W. p. 274.
The court held, however, that the demand therein was premature and ineffective inasmuch as 'the question as to which county is the proper county is to be determined from the complaint, not from the summons.' While we do not deem that the construction given to the statute by the court at that time was a liberal one, nevertheless it is clear from State ex rel. Schauer v. Risjord that strict compliance with the statute is not absolutely necessary, that substantial compliance is sufficient. The respondent, however, relies primarily upon a series of cases which give considerable support to the position that all of the facts that would support a change of venue be set forth in the demand and that there be full compliance with the statute in that regard. State ex rel. Shawano County v. Werner, 181 Wis. 275, 279, 194 N.W. 815, 816 (1923), states:
'Even though defendants had the right to a change of venue, that right was purely statutory, and depended on compliance with the statute.'
In the case of State ex rel. Trost v. Schinz, 217 Wis. 576, 580, 259 N.W. 601, 603 (1935), this court stated:
'The right to change the venue is entirely statutory and the basis for the defendant's right to a change of the place of trial must be found in the statutes.'
The case of Anderson v. Arpin Hardwood Lumber Co., 131 Wis. 34, 40, 110 N.W. 788, 791 (1907), directs that the statement in the demand not only...
To continue reading
Request your trial
-
Chrysler Financial Co. v. Bergstrom
...(citing Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939)); State ex rel. Klabacka v. Charles, 36 Wis.2d 122, 152 N.W.2d 857, 861 (1967) (stating the purpose of venue statutes "is to prevent the hardship and inconvenience to which a defendant may be......
-
State ex rel. Hartwig's Poultry Farm, Inc. v. Bunde
...(3d ed.), sec. 82A, p. 270.8 (1932), 206 Wis. 478, 240 N.W. 149.9 Id. at page 481, 240 N.W. at page 150.10 State ex rel. Klabacka v. Charles (1967), 36 Wis.2d 122, 152 N.W.2d 857.1 State ex rel. Webster Manufacturing Co. v. Reid (1922), 177 Wis. 612, 188 N.W. 67.2 State ex rel. Webster Manu......
-
Aparacor, Inc. v. Department of Industry, Labor and Human Relations
...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 convenience of witnesses and the ends of justice" are arguments to be ad......
-
Froman v. Keokuk Health Systems, Inc.
...in which he [does not reside].'" Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 422 (Iowa 2005) (quoting State ex rel. Klabacka v. Charles, 36 Wis.2d 122, 152 N.W.2d 857, 861 (1967)). A person's "interest in not being sued in the wrong county [is] an important social value." Id. at In dete......