State ex rel. Spence v. Dick
| Decision Date | 02 June 1899 |
| Parties | STATE EX REL. SPENCE v. DICK, CIRCUIT JUDGE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Mandamus proceedings, on relation of Laura W. Spence, against James J. Dick, circuit judge. Peremptory writ granted.Quarles, Spence & Quarles, for relator.
M. L. Lueck, for defendant.
This is a mandamus action commenced in this court, the object being to compel the respondent, as circuit judge of the Thirteenth circuit, to make an order changing the venue of the action of Laura W. Spence against William Pieper and others to some circuit court outside of said Thirteenth circuit. An alternative writ was issued, and return thereto made by the respondent, and the relator demurred to the sufficiency of the return. It appears by the return that the action of Spence against Pieper et al. was a foreclosure action pending in the circuit court for Dodge county, and that the relator moved for change of venue thereof upon an affidavit which alleged, in due form, the prejudice of the respondent, and contained a further allegation charging, in due form, the prejudice of the judge of the county court of Dodge county. Upon this affidavit the relator claimed that the case must be sent to some circuit court outside of the Thirteenth circuit, but the respondent held that it was within his discretion to send the case to the county court of Dodge county, which he did, notwithstanding the allegation of the prejudice of the judge of that court. The statute governing the matter is section 2467, Sanb. & B. Ann. St., which provides that, when a change of venue on account of prejudice of the judge shall be granted in a civil action pending in Dodge county, “it may in the discretion of the court be changed to the county court of Dodge county, unless it shall appear that the judge of such county court is prejudiced or disqualified.” It seems entirely plain, from the language used, that the discretion of the circuit judge to send the case to the county court ceases the moment it appears that the judge of that court is prejudiced or disqualified. It was held in Iron Co. v. Crane, 66 Wis. 570, 29 N. W. 654, construing identical words in this same section, that prejudice appeared when the ex parte affidavit alleging such fact was filed and brought to the attention of the court; hence it must follow that upon the filing of the affidavit in question the relator's right became absolute to have a change of venue of the case to the circuit court of...
To continue reading
Request your trial
-
State ex rel. Dep't of Natural Res. v. Wis. Court of Appeals
...as a matter of course, we concluded that mandamus could be a proper pathway for addressing improper venue. In State ex rel. Spence v. Dick, 103 Wis. 407, 409, 79 N.W. 421 (1899), we observed that "[u]nder the present statute regulating appeals from orders, however, orders changing the venue......
-
State ex rel. Umbreit v. Helms
...General v. Circuit Court for Eau Claire County, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65 Am. St. Rep. 90, and State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421. In neither was the scope of the power in question, nor the circumstances under which it should be used, discussed. Howe......
-
State ex rel. McGovern v. Williams
...v. Young, 92 Ky. 227, 17 S. W. 485;Hill v. Morgan, 9 Idaho, 718, 76 Pac. 323;State v. Murphy, 19 Nev. 89, 6 Pac. 840;State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421;State ex rel. v. Dick, 125 Wis. 51, 103 N. W. 229;State ex rel. v. Williams, 127 Wis. 236, 106 N. W. 286. There is so......
-
State ex rel. Gallegos v. Dist. Court
...re Snyder, 184 Wis. 10, 198 N.W. 616; Illinois State Board of Dental Examiners v. People, 123 Ill. 227, 13 N.E. 201; State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421; State ex rel. Southern Colonization Co. v. Circuit Court, 187 Wis. 1, 203 N.W. 923, 48 A.L.R. 894; State v. Williams......