State ex rel. Sprinkman v. Huiras

• Decision Date: 10 March 1942
• Citation: 240 Wis. 154,2 N.W.2d 721
• Parties: STATE ex rel. SPRINKMAN v. HUIRAS, Judge.
• Court: Wisconsin Supreme Court

240 Wis. 154

2 N.W.2d 721

STATE ex rel. SPRINKMAN

v.HUIRAS, Judge.

Supreme Court of Wisconsin.

March 10, 1942.

Original Action.

Mandamus by the State of Wisconsin, on relation of Walter M. Sprinkman against the Honorable Peter M. Huiras, Judge of the County Court of Ozaukee County, Wisconsin, to compel respondent to order a change of venue of a pending action to Washington County.-[By Editorial Staff.]

Alternative writ quashed and action dismissed.

The relator Walter M. Sprinkman by leave of court commenced an original action in mandamus to compel the county court of Ozaukee county to order a change of venue to Washington county. It was stipulated in open court that the petition for leave to bring the action and the accompanying affidavits to be taken as the petition for the alternative writ; that the answer to the petition and the accompanying affidavits be taken as the return to the alternative writ; and that the respondent be considered as moving to quash the alternative writ.

Brennan & Brennan, of Milwaukee, for petitioner.

Nathan Pereles, Jr., of Milwaukee, William F. Schanen, of Port Washington, and Walter D. Corrigan, Sr., of Milwaukee, for respondent.

FOWLER, Justice.

Elsa P. Sprinkman commenced an action for divorce against the relator Walter M. Sprinkman in the county court of Ozaukee county. The summons and complaint were served on November 21, 1941. In her complaint the plaintiff alleged the residence of both parties as Washington county. On the day following the service of the summons the attorney for the relator demanded a change of venue to Washington county on the ground that that was the county of the residence of both parties. Motion to change the venue was not presented to the court until February 2, 1942. The court denied the motion on the ground that it was not made within the time prescribed by statute.

Sec. 261.02, Stats., provides that the county designated in the complaint shall be the place of trial, unless the venue is changed as provided in Ch. 261.

Sec. 261.01(3), Stats., provides that the “proper place of trial” of an action for divorce shall be the county wherein either party resides.

Sec. 261.03 Stats., reads: “When the county designated in the complaint is not the proper place of trial, except as to actions named in subsection (1) of section 261.01, [not here relevant] the defendant may, within twenty days after the service of the complaint, serve upon the plaintiff a demand in writing that the trial be had within a proper county, specifying the county or counties, and the reason therefor. Within five days after service of such demand the plaintiff may serve a written consent that the place of trial be changed, and specify to what county,...