State ex rel. Smith v. Belden

• Decision Date: 12 May 1931
• Citation: 236 N.W. 542,205 Wis. 158
• Parties: STATE EX REL. SMITH ET AL. v. BELDEN, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

205 Wis. 158

236 N.W. 542

STATE EX REL. SMITH ET AL.

v.BELDEN, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

May 12, 1931.

Mandamus by the State, on the relation of F. S. Smith, Anna Smith, and Perfection Furniture Company, against E. B. Belden, Circuit Judge in and for Kenosha County.--[By Editorial Staff.]

Peremptory writ issued.Richmond, Jackman, Wilkie & Toebaas, of Madison, for petitioners.

Shaw, Muskat & Sullivan, of Milwaukee, for respondent.

FOWLER, J.

The action was brought for a writ to compel the Hon. E. B. Belden, circuit judge, to proceed to trial of actions pending in Kenosha county, and was heard on a motion for a peremptory writ, based upon the petition and return.

The actions, 19 in number, are for recovery for fire losses and are against nonresident insurance companies upon policies issued by them. They all involve the same fire which occurred in Chicago. The plaintiff owners of the burned building are natural persons citizens and residents of Illinois and brought six actions. The other plaintiff is a corporation organized under the laws of Illinois that owned personal property situated in the burned building and brought 13 actions. The plaintiffs are the relators herein. The cases were noticed for trial at the October, 1930, term of the court, and the court at said term upon motion of plaintiffs ordered them to be tried together and fixed February 17, 1931, as the day of trial. At request of defendants, on account of absence of a witness, a stipulation approved by the court was entered into for postponement of the trial and the cases went over to the March, 1931, term. At the opening of that term the court of its own motion and without notice to the parties announced that it would not hear the cases and refused to proceed with the trial. Two other sets of like cases, totaling 32 in number, involving two other Chicago fires, are also pending in the trial court, but each set of these cases may under our practice and section 260.18, Stats., be consolidated for trial purposes into two trials. The reason for the court's refusal to proceed with the trials was that it conceived that it had discretion to refuse to entertain suits upon transitory actions arising outside the state brought by nonresidents and foreign corporations, and that the condition of the calendar and the public expense incident to the trials justified its refusal.

The motive of the trial court in refusing to proceed with the trials was entirely proper, and its discretion, if it had any, was properly exercised. The reasons laid by the plaintiffs for bringing their actions in Wisconsin, while they are ample to justify the plaintiffs in so doing if they may, clearly justify the trial court's refusal to proceed, if it has discretion. These reasons are that, if the plaintiffs resort to the Illinois courts for vindication of their rights, they will be subjected under the Illinois law and practice to the delay and expense incident to 19 separate trials, and that the calendars of the Illinois courts are so congested that there will be a long lapse of time before even the first of these trials may be reached. This being true, the advantage to Illinois residents who have suffered fire losses covered by insurance of resorting to the courts of Wisconsin, where as a rule trials may regularly be had promptly and where all suits on policies covering property involved in a single fire may be tried together, are manifest and may not unlikely throw upon the courts and people of Wisconsinthe burden and expense of litigating a large number of actions on insurance policies covering property destroyed by fire occurring in Illinois. Avoidance of this, if possible, is highly desirable.

A similar situation was involved in State ex rel. Aetna Ins. Co. v. Fowler, 196 Wis. 451, 220 N. W. 534, wherein a writ of prohibition was sought to prevent the circuit court of Fond du Lac county from proceeding with like cases brought in that court. A motion to dismiss the cases was made in that court by the defendants, which the court denied. A writ of prohibition was forthwith sued out in this court. The peremptory writ was denied on the ground that the trial court might in its discretion entertain the cases, and no abuse of discretion appeared. This court, although mentioning section 226.11, Stats., and cases decided without reference to it, considered it not necessary to determine whether the trial court had right to dismiss the action. That question, or its equivalent, whether a trial court has right to refuse to entertain such actions as are involved, must now be determined.

We will consider: (1) Whether the relators who are natural persons have right to prosecute their actions; and (2) whether the nonresident corporation has right to prosecute its actions.

[1] 1. That the plaintiffs who are natural persons have the absolute right to prosecute their actions in the Wisconsin courts is ruled by Eingartner v. Ill. Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 589....