Tucker v. Grover

• Decision Date: 27 September 1881
• Citation: 9 N.W. 820,53 Wis. 53
• Parties: TUCKER v. GROVER.
• Court: Wisconsin Supreme Court

53 Wis. 53

9 N.W. 820

TUCKER

v.GROVER.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Milwaukee county.

H. L. Buxton, for respondent.

E. C. Lewis and E. P. Smith, for appellant.

TAYLOR, J.

This is an appeal from an order of the circuit court of Milwaukee county refusing to strike the cause from the calendar of that court, and change the place of trial to the circuit court of Dodge county. The record shows that the summons in the action was served July 8, 1880, upon the defendant in the county of Dodge, where he then resided, and still resides; that on the twenty-seventh of July, 1880, the defendant served on the plaintiff's attorney a demand in writing that the place of trial be changed to Dodge county, stating as a reason that the defendant resided in that county. On the twenty-ninth day of July the plaintiff's attorney served a written consent on the defendant's attorney that the place of trial of said action be changed from the county of Milwaukee to the county of Dodge, and at the same time delivered to the defendant's attorney a duplicate of said consent, which duplicate consent, with the admission of service thereof, signed by the defendant's attorney, was forthwith mailed to the plaintiff's attorney.

On the twenty-seventh of July, 1880, plaintiff's attorney filed the summons and complaint in said action with the clerk of said Milwaukee county circuit court, but did not file the written consent to change the place of trial to Dodge county. On the fourteenth of August, 1880, the defendant served his answer to the complaint in said action, which was entitled “In circuit court, Milwaukee county,” but it was noted on the margin of the complaint, opposite the title thereof, that the “place of trial was Dodge county.” On November 22, 1880, the plaintiff's attorney served upon the defendant's attorney a notice of trial, stating that said action would be brought on to trial in the circuit court of Milwaukee county on the fourth day of October then next, or as soon thereafter as counsel could be heard; which notice of trial was returned by the defendant's attorney, stating, as a reason for returning the same, that the place of trial of said action had been changed to Dodge county. The plaintiff's attorney filed proof of service of the notice of trial, and caused the action to be placed upon the calendar of said circuit court for Milwaukee county, for trial at the October term, 1880. Thereupon the defendant's attorney moved the circuit court of Milwaukee county, upon an affidavit setting out the above facts, and upon the papers in the case, “that the said action be stricken from the calendar of said court; that said court refuse to entertain jurisdiction thereof; and that the place of trial thereof be changed to Dodge county.” This motion was denied by said court, and from the order denying the same this appeal is taken.

It is alleged by the learned counsel for the respondent that no appeal will lie from such order to this court. The motion to strike the cause from the calendar of the circuit court of Milwaukee county was based upon the ground that such court had no...