State ex rel. Milwaukee Elec. Ry. & Light Co. v. Circuit Court for Rock Cnty.

• Decision Date: 08 January 1908
• Citation: 134 Wis. 301,114 N.W. 455
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. MILWAUKEE ELECTRIC RY. & LIGHT CO. v. CIRCUIT COURT FOR ROCK COUNTY.

134 Wis. 301

114 N.W. 455

STATE EX REL. MILWAUKEE ELECTRIC RY. & LIGHT CO.

v.CIRCUIT COURT FOR ROCK COUNTY.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Original action of mandamus by the state, on the relation of the Milwaukee Electric Railway & Light Company against the circuit court of Rock county. Proceedings dismissed.

Mandamus action to compel the circuit judge for Rock county to change the venue of an action commenced in such court against the relator and the Chicago, Milwaukee & St. Paul Railway Company to Milwaukee county.

Winifred Fifield, plaintiff in the action, having been injured in the city of Milwaukee, Wis., under such circumstances, as alleged in her complaint, as to render both the relator, an electric railway corporation having its principal office and place of business in said city, and the Chicago, Milwaukee & St. Paul Railway Company, a railway corporation having part of its system in Rock county, Wis., liable for her damages, on the 15th day of February, 1907, as was claimed, made an efficient attempt to commence an action in such county against such corporation for redress. The relator insisted that proper service was not made to obtain jurisdiction as to it and, there being some doubt in respect to the matter, a second service, which is not questioned as to its sufficiency, was made March 8, 1907. March 18th thereafter, the relator appeared, specifying that such appearance had reference only to the service of March 8, 1907, and demanded a change of the place of trial to Milwaukee county, because of its being a corporation of the class mentioned in subdivision 5, § 2619, St. 1898, and at the same time duly served a consent by its codefendant to such change. Plaintiff having failed to consent thereto, the relator duly moved the court for such change, supplementing papers previously served by proof of its being a corporation of the class mentioned in the subdivision aforesaid. The codefendant joined in such motion. The application was denied, whereupon the alternative writ of mandamus was sued out on a relation setting forth so far as necessary the facts aforesaid with others.

In previous proceedings to compel said circuit court to set aside the service of February 15, 1907, the application failed by the final adjudication in this court, because of there being but one action and as the second service was conceded to be good of its not being material whether the first one was or not. No adjudication was made as to whether such first service was efficient.

The circuit judge made return to the alternative writ, among other things, to this effect: It was not decided in the proceedings to set aside the service of February 15, 1907, that the relator had waived any defect in such service. The demand for a change of venue served, together with the consent of the Chicago, Milwaukee & St. Paul Railway Company was retained by plaintiff's attorney. Proof of service of the summons made February 15, 1907, which is in due form, is the only service shown by the record, or which has been submitted to respondent, although a subsequent service was referred to on the argument. It was decided by the circuit court for Rock county, April 10, 1907, that the service of February 15, 1907, was sufficient, and the order in that regard has not been modified or set aside. It is not true, as alleged in the relation, that no objection was made by plaintiff that the demand for a change of venue was not timely. Respondent determined in denying the motion for a change of venue, that the service of February 15th aforesaid was good, and that the demand for a change of venue was not seasonably made; and further determined that the Chicago, Milwaukee & St. Paul Railway Company was properly sued in Rock county; that such county was a proper one for trial of the action; that said railway company could not demand a change of venue to Milwaukee county and that the action is indivisible, so that the relator, in any event, was not entitled to the change requested.

The relator answered the return putting in issue all matters stated therein inconsistent with those stated in the relation, particularly denying that the only proof of service brought to the attention of respondent was that as to the service of February 15, 1907, and that plaintiff made objection that the demand for a change of venue was not timely and that respondent determined in denying the application therefor that it was not made in time. Counsel for the relator duly moved the court on the proceedings aforesaid for a peremptory writ of mandamus.Clarke M. Rosecrantz and Sanborn & Blake, for relator.

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