Woodward v. Hanchett

• Decision Date: 04 June 1881
• Citation: 52 Wis. 482,9 N.W. 468
• Parties: WOODWARD v. HANCHETT AND OTHERS. STOWE v. HANCHETT AND OTHERS.
• Court: Wisconsin Supreme Court

52 Wis. 482

9 N.W. 468

WOODWARD

v.HANCHETT AND OTHERS.

STOWE

v.HANCHETT AND OTHERS.

Supreme Court of Wisconsin.

Filed June 4, 1881.

Appeals from circuit court, Monroe county.

F. J. Lamb, for appellants.

Marrow & Masters, for respondents.

TAYLOR, J.

These actions were commenced in the circuit court of Dane county by the personal service of a summons upon the defendants in said county. The defendants in fact resided in Monroe county. Within 20 days after the service of the complaint in each case, the defendants, by their attorney, demanded in writing that the place of trial in said actions be changed to Monroe county, that being the county in which the defendants resided; and thereupon, and within five days after such demand, the plaintiffs' attorney served a written consent in each of said cases upon the defendants' attorney, that the place of trial in said actions be changed to Monroe county. At the time such written consent was given and served, no papers in either of said actions had been filed in the office of the clerk of the circuit court of Dane county. Thereafter, and on the eleventh day of February, 1880, the defendants in each of said actions served their answers to the complaint of the plaintiff therein, which answers were entitled in the circuit court of Monroe county, and the admission of service of such answers was duly acknowledged in writing upon the back of the originals by the attorney for the plaintiffs; and in the case in which Stowe is plaintiff, his attorney thereafter, and on the twenty-third day of February, 1880, served a reply to the answer of the defendants, also entitled in the circuit court of Monroe county.

The defendants, by their attorney, duly noticed said actions for trial at the April term, 1880, of the circuit court of Monroe county, filed the proper notes of issue with the clerk of said court, and caused the same to be placed upon the calendar for trial at said term. The plaintiffs, by their attorney, moved the court to strike the cases from the calendar. The motion was denied, and from the respective orders of the court denying said motions the plaintiffs appeal to this court. The learned counsel for the appellants insists that the Monroe county circuit court had no jurisdiction of said actions, because no order had ever been made by the circuit court of Dane county, in which said actions were commenced, changing the place of trial in said actions and directing the transmission of the papers therein to the clerk of the circuit court of Monroe county. The contention of the learned counsel is that no change in the place of trial in an action can be effected under the provisions of the Revised Statutes except by an order of the circuit court, or presiding judge thereof, of the county in which the actions were commenced, as prescribed in section 2622, Rev. St. 1878. And it appearing that no such order had ever been made in either of said actions, and that no papers had been transmitted from the circuit court of Dane county by the clerk thereof to the circuit court of Monroe county, as prescribed by section 2627 of said statutes, said actions still remained in the circuit court of Dane county, notwithstanding the written consent of the plaintiffs' attorney to such change of the place of trial. The learned counsel for the respondents contend that the written consent given by the attorney for the appellants changed the place of trial from Dane county to Monroe county, without any order of the court or of the judge thereof; that, after such consent given, such actions were for all purposes pending in Monroe county the same as though they had been originally commenced in such county.

Under the sixth subdivision of section 2619, Rev. St. 1878, the place of trial for these actions was in Monroe county, that being the county in which the defendants resided at the time the same was commenced, and the defendants had the right under the statute to have the actions tried in that county, unless the place of trial was properly changed for some of the causes specified in the statutes. Section 2621, Rev. St. 1878, provides that where the place of trial, designated in the summons or complaint, is not the proper place of trial, “the defendant may, within 20 days after the service of the complaint, serve upon the attorney for the plaintiffs a demand in writing that the trial be had within the proper county, specifying it, unless there be more than one such county, and the reason therefor. Within five days after service of such demand the plaintiff's attorney may serve a written consent that the place of trial be changed, and specify to what county, having the option to name one of two or more in which it may be properly triable, and such consent shall change the place of trial accordingly. If the plaintiff's consent be not so served the defendant may, within 20 days after the service of such demand, move to change the place of trial, and shall have costs if this motion be granted. The right to a change of the place of trial, by proceeding as aforesaid, shall not be affected by any other proceedings in the action.”

This section was clearly intended to relate to all kinds of actions, and is applicable as well to actions which are local in...