Wisconsin Area Health and Welfare Fund v. Cate
Decision Date | 10 February 1976 |
Docket Number | No. 65,65 |
Parties | WISCONSIN AREA HEALTH AND WELFARE FUND, a Wisconsin Trust, and its Trustees, Petitioners-Appellants, v. Hon. Walter H. CATE, County Judge in and for Ashland County, Wisconsin, Respondent. (1974). |
Court | Wisconsin Supreme Court |
Brief by: E. H. Snyder, Milwaukee, for petitioners-appellants.
Brief by: Pray, Pray & Clark, Ashland, for respondent.
The sole issue on this appeal is whether the circuit court for Ashland County was obligated to grant the application of the Wisconsin Area Health & Welfare Fund, the petitioner-appellant, for an alternative writ of mandamus dismissing an action commenced by Dr. Glenn E. Grage against the Fund in the county court of Ashland county, Small Claims Branch. We hold that it was not.
On July 24, 1970, Dr. Grage, Ashland, Wisconsin, commenced a small claim action in the county court against the Fund by service of a summons and complaint in Dane county on Rudolph Heiser, an employee and director of the Fund by the sheriff of Dane county. Dr. Grage alleges in the complaint that the Fund is indebted to him for professional services performed and rendered to Deloris and Allen Pakkala pursuant to the instructions and request of the Fund between September 15 and October 10, 1969; that the services had a reasonable value of $292; and that the sum is due and has not been paid. The complaint alleges that the Fund is engaged in the business of a health insurance trust for the International Brotherhood of Teamsters, Chauffeurs Warehousemen & Helpers of America.
The Fund moved to dismiss the action 'in accordance with the provisions of Section 299.11(5) Wis.Stats. on the ground that venue was not correct.' September 15, 1972, the respondent entered and filed his Memorandum Opinion and Order denying the Fund's motion. The Fund appealed from this order to this court. This court dismissed the appeal as to that part of the order denying the motion to dismiss for improper venue; vacated the order, insofar as it denied the motion to dismiss for lack of personal jurisdiction; and remanded the cause for a jurisdictional trial. 1
When the Fund was notified that a jurisdictional trial was mandated by this court, the Fund petitioned the circuit court for Ashland county for an alternative writ of mandamus commanding the respondent to dismiss the small claims action. The Fund alleges in the petition that it has 'no other plain, adequate and complete remedy'; that it has a 'clear, unambiguous and irrefutable legal right to the performance of a positive, mandatory and plain duty of the Respondent to dismiss said Small Claims action'; and that denial of the petition 'will result in the unjust, illegal and inequitable imposition on the petitioners of additional costs, disbursements and attorney fees.' The circuit court denied the petition stating in part:
'The Writ of Mandamus is a discretionary writ and its issuance lies within the sound discretion of the court either to grant or to deny. State ex rel. Kurkierewicz-vs-Cannon, 42 Wis.2d 368, 166 N.W.2d 255.
'We see no reason why the matter which the petitioner seeks to litigate in the Circuit Court of Ashland county cannot be as fully and adequately dealt with in the forum wherein the action is now laid.'
Unquestionably, the circuit court has supervisory control over the county court, and possesses jurisdiction to issue writs of mandamus to the county court returnable to it. 2 Mandamus is also the proper remedy. A writ of mandamus has been granted in a number of instances where an inferior court has improperly refused a change of venue. 3 These cases hold that, since an order denying a motion for a change of venue is not appealable, mandamus is the proper remedy. However, the rule laid down by these decisions should not be considered as going to the extent of holding that in every case, where a trial judge erroneously denies an application for a change of venue, he will be coerced in the matter by the superintending control of a superior court. 4 The writ should not be used 'except in such extreme cases as to render such course necessary to prevent a serious miscarriage or denial of justice and when there is no other remedy at all or none fairly adequate to the case.' 5 In Braun v. Campbell, 6 this court stated:
Upon this record we cannot say that the respondent acted contrary to a clear, specific, legal right free from doubt when he denied the Fund's motion for dismissal because of improper venue. Sec. 299.11, Stats., in part, provides:
'Venue. (1) The venue of actions in which the procedure of ch. 299 is used is as follows:
'. . .
'(b) In contract actions, the county where the defendant resides or is personally served.
'. . .
'(3) For foreign corporations, 'residence' in this section refers to any county in which a corporation carries on substantial business activity; for domestic corporations 'residence' refers to the county in which the corporation has its principal office.
'. . .
The county court in its memorandum opinion found that the Fund was engaged in the insurance business and was not organized under the laws of this state; that the Fund was, in fact, a foreign corporation; and that it was an agency of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America providing insurance for members of that union working in Ashland county. The trial court concluded that the Fund carried on a substantial business...
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