State ex rel. Winchell v. Circuit Court of Waukesha Cnty.

• Decision Date: 13 January 1903
• Citation: 93 N.W. 16,116 Wis. 253
• Parties: STATE EX REL. WINCHELL v. CIRCUIT COURT OF WAUKESHA COUNTY.
• Court: Wisconsin Supreme Court

116 Wis. 253

93 N.W. 16

STATE EX REL. WINCHELL

v.CIRCUIT COURT OF WAUKESHA COUNTY.

Supreme Court of Wisconsin.

Jan. 13, 1903.

Certiorari to circuit court, Waukesha county; James J. Dick, Judge.

Certiorari by the state, on the relation of Martha Winchell, to the circuit court of Waukesha county, to review the action of such court in refusing to remand a cause transferred to it from the county court. Writ quashed.

Motion to quash a writ of certiorari addressed to the circuit court, and based upon the following facts: The relator having brought an action in the county court for Waukesha county against the city of Waukesha to abate a nuisance consisting in the empting of impure and noxious sewerage into a stream above and near her land, and to recover damages thereby occasioned, and that action being at issue, both as to the existence of the nuisance and the amount of damages, it was called for trial on May 19, 1900. Thereupon the court directed (the parties consenting) that the action be tried upon the equitable issue, or upon all the issues except the question of damages; the judgment to provide, should it be against the defendant, for the ultimate assessment of damages by a jury or reference. Interlocutory judgment was entered in favor of the plaintiff, and, upon appeal to this court, was on April 9, 1901, affirmed, with slight modification. 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902. After remission of the case, it was placed on the calendar, and the judgment of the county court modified to conform to the mandate of the supreme court; and thereupon, on March 4, 1902, the defendant filed an affidavit of prejudice of the judge of said court, whereupon an order changing the place of trial to the circuit court of Waukesha county was entered, and the records transmitted to that court. Thereupon the plaintiff, upon affidavits showing substantially the foregoing facts, moved the circuit court for an order remanding the record to the county court, which order, on June 10, 1902, was denied by the circuit court; that court holding that said action was properly removed. Original writ of certiorari from this court was sued out upon the assertion that the circuit court had no jurisdiction of the case, “to the end that this court may be certified of all proceedings in said action, and said order overruling plaintiff's motion to remand the records in said action to said county court duly reversed.” The circuit court made return of the entire record, and now moves to quash said writ as improvidently issued.Armin & Waite, for relator.

Henry Lockney (H. J. Frame, of counsel), for respondent.

DODGE, J. (after stating the facts).

That the order of the county court changing the venue of the action of Winchell v. City of Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902, was made after the trial had commenced, and while it was not yet fully completed, seems too obvious for debate, in the light of the decisions. Swineford v. Pomeroy, 16 Wis. 553;Cairns v. O'Bleness, 40 Wis. 469;Grobman v. Hahn, 59 Wis. 93, 17 N. W. 545;Duffy v. Hickey, 68 Wis. 380, 32 N. W. 54;Peterson v. Lumber Co., 93 Wis. 500, 67 N. W. 1118. Hence, of course, that order, when made, was beyond the jurisdiction of the county court and void, and, had it been called to the attention of...