Swan v. Porter

• Decision Date: 30 April 1897
• Parties: SWAN v. PORTER.
• Court: Wisconsin Supreme Court

96 Wis. 34

70 N.W. 1068

SWAN

v.PORTER.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from county court, Waukesha county; M. S. Griswold, Judge.

Action by Thomas E. Swan against Rolland L. Porter. Judgment for plaintiff, and defendant appeals. Reversed.Chafin & Parkinson and G. W. Hazelton, for appellant.

C. E. Armin, for respondent.

CASSODAY, C. J.

The complaint alleges, in effect, that June 8, 1895, the plaintiff was engaged in buying wool at Mukwonago, and had on hand 15,200 pounds of wool in a car of the Wisconsin Central Railway Company at that place for shipment to the Great Western Fur & Hide Company, of Chicago; that they had agreed with the plaintiff to pay him an extra price therefor, provided the wool should reach them as early as June 10, 1895, so that the same could be used in filling out a large consignment of wool for which the company had contracted; that June 8, 1895, the defendant swore out a writ of attachment against the fur and hide company, and levied upon and seized the wool, and the plaintiff was thereby prevented from shipping the same until June 12, 1895, which was too late to secure the price the company had agreed to pay the plaintiff, and so he was obliged to sell the same at a loss of $284.18; that the loss was occasioned by the misconduct of the defendant in attaching the wool as the property of the fur and hide company, when in truth and in fact it was the property of the plaintiff solely, as the defendant then and there well knew. The answer admits the attachment, the issuance of the warrant, and the seizure of the wool, but denies each and every other allegation of the complaint. This defendant, as plaintiff in the attachment action, voluntarily withdrew the same, and released the wool June 11, 1895. At the close of the trial the jury returned a verdict in favor of the plaintiff for $284.18; that thereupon the defendant moved for a new trial upon several grounds, and, among others, that the damages were excessive; that the court thereupon ordered that a new trial be granted in said action, unless the plaintiff would remit from the damages awarded to him the sum of $91.68; that the plaintiff then and there remitted from said verdict that amount, and judgment was thereupon entered in favor of the plaintiff for the balance, with costs. From that judgment the defendant brings this appeal.

It appears that this action was commenced in the circuit court for Waukesha county, July 5, 1895; that December 11, 1895, the attorneys for the respective parties signed and filed with the clerk a stipulation in said action, to the effect “that this case, together with all the papers and records therein, be transferred to the county court of Waukesha county, there to be placed upon the calendar with civil causes, to be tried at the then present term thereof; that the clerk of this court is hereby requested to transfer all of said papers and records in this case to the county court for Waukesha county”; that February 6, 1896, the parties appeared in the county court, and stipulated to try the case therein at the March term, without further notice; that March 9, 1896, the clerk of the circuit court transmitted all the papers in the case to the county court pursuant to stipulation, and thereupon the trial was had in the county court at the March term thereof for 1896. There is no claim that the action was not commenced in the proper county, or the proper court, nor that there was any reason to believe that an impartial trial could not be had in the circuit court, nor that the convenience of witnesses or the ends of justice would be promoted by such change. The contention is that the venue was changed solely by virtue of the stipulation mentioned, and without any order of the court, or the presiding judge, or any judge. The statute applicable declares that: “The court or the presiding judge thereof may change the place of trial in the following cases: * * * (4) When the parties or their attorneys shall stipulate in writing to change the place of trial; and, in the last case, the order may be made by the judge.” Sanb. & B. Ann. St. § 2622. Under this section it is very obvious that in a case where the circuit court has the rightful and proper jurisdiction of an action and the parties thereto and the subject-matter thereof, the court cannot, without its consent, be ousted of such jurisdiction by any mere stipulation of the parties. The statutes go further, and declare, in effect, that when a change of the place of trial has been ordered by the court, all papers in the case “shall be certified and transmitted by the clerk...