State ex rel. Watson v. Clementson

• Decision Date: 05 November 1907
• Citation: 113 N.W. 667,133 Wis. 458
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. WATSON v. CLEMENTSON, JUDGE OF THE CIRCUIT COURT OF GRANT COUNTY.

133 Wis. 458

113 N.W. 667

STATE EX REL. WATSON

v.CLEMENTSON, JUDGE OF THE CIRCUIT COURT OF GRANT COUNTY.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Mandamus proceeding by state of Wisconsin, on the relation of John W. Watson, to compel George Clementson, judge of the circuit court of Grant county, to change the venue of a cause. Demurrer to return overruled, and relation dismissed.

This is a proceeding by mandamus to compel the circuit judge of Grant county to change the venue in a case pending in the circuit court of that county, wherein the relator was and is plaintiff and Grant county and others defendants, by reason of the alleged prejudice of said judge. The defendant made return to the writ, and the relator demurred to the return.

It appears, and is undisputed: That the affidavit of prejudice therein was filed by the relator with the clerk of said court October 13, 1903, but that said judge remained ignorant of the fact that said affidavit of prejudice was so on file until October 29, 1903, when Judge Dunwiddie, who had been called in to try another case, was told by the attorney for the relator in the presence of this defendant that such affidavit had been filed, and suggested that he might take jurisdiction of the case. That the defendant then informed Judge Dunwiddie in open court that no such application had been made to him, and that he had not before heard of such affidavit. That Judge Dunwiddie declined to consider the suggestion. November 3, 1903, the attorneys of the respective parties in the action signed and filed with the clerk a stipulation that the hearing for the change of venue be deferred until the following February term of the court. December 4, 1903, the trial court ordered that said affidavit be, and the same was thereby, stricken from the files of the clerk and returned to the relator's attorney on the ground that no application upon said affidavit had ever been made to the court or the judge thereof. May 3, 1905, the relator moved the circuit court for a change of the place of trial to some other circuit as provided by statute, basing such motion on an affidavit of the relator made May 1, 1905, in which the affidavit of October 13, 1903, was reiterated, and stated that such affidavit “was then and still is true, and that he had reason to and does believe that he cannot have a fair trial of said action on account of the prejudice of Hon. George Clementson, judge of said court, and upon all the facts aforesaid he makes application for a change of the place of trial of said action as by the statutes of Wisconsin in such case made and provided.” Affidavits of attorneys for the respective parties in the action showing the history of the proceedings therein were also filed. Thereupon, and on October 6, 1905, the same being the last day of the February term of said court for 1905, the defendant by order entered therein denied said application for the change of the place of trial of said action, for the reason that the same was “not a substantial compliance with” section 2625 of the Statutes of 1898 as amended by chapter 101, p. 128, Laws 1901, and especially as it failed to state that the affiant had “good reason to believe.” October 26, 1905, the relator made a new affidavit of prejudice in compliance with the statutes, and filed the same November 1, 1905, and applied to said court upon such new affidavit for a change of the place of trial of said action. That the defendant as such judge in the exercise of his discretion given by said statute retained said action in said court for the purpose of calling in another judge to try the same by an order dated February 1, 1906, reciting the facts, called in Hon. J. J. Fruit of the Sixth circuit to attend and hold court during the then current term thereof for the purpose of exercising jurisdiction in the said action. February 5, 1906, Judge Fruit acknowledged said call, and duly notified the clerk of said court, in pursuance of the statute cited, that he should attend at the courthouse at Lancaster February 15, 1906, at 2 p. m. for the purpose of assuming and exercising jurisdiction in said case. The October, 1905, term of said circuit court for said county was in regular session February 15, 1906, at 2 o'clock p. m., and the defendant then and there took the bench as the presiding judge of said court, and announced that the matters to be heard before him would be suspended; that affidavits of prejudice had been filed against him in the case mentioned and another case, and that Judge Fruit had been called upon by him to attend and assume jurisdiction in said cases, and that he was then present in the courtroom, and thereupon called upon Judge Fruit to take the bench, which he then and there did and so assumed jurisdiction of both of said cases. That all of the attorneys in both of said cases were present, and the defendant at once left the courtroom. That immediately after Judge Fruit took the bench and assumed jurisdiction of said cases the attorneys for the relator made to the court and filed with the clerk thereof a written motion for an order for a change of the place of trial of the action to some other circuit, based upon the said several affidavits of the...