Delaney v. Schuette

49 Wis. 366 | Wis. | 1880

Corns, J.

The certificate which „was annexed to the papers transmitting this cause from the Manitowoc circuit court, on change of venue, was made in the name of the clerk, but signed by the deputy clerk. The learned judge of the circuit court for Ozaukee county, where the cause was sent for trial, held that the certificate was void for want of authority on the part of the deputy to make the same, because it did not appear on the face of the certificate that the clerk was absent from his office at the time, so as to authorize the deputy to act for him. The court, therefore, refused to try the causej and struck it from the calendar.

We think the circuit court was in error in holding that it must appear affirmatively, from the certificate itself, that the clerk was absent from his office so as to give the deputy power to make the certificate. The presumption of law certainly is that the clerk was absent, and that the circumstances were such as'to give the deputy the right to act for the clerk. That rule of law was expressly affirmed in Sexton v. Rhames, 13 Wis., 99, and Huey v. Van Wie, 23 Wis., 613; and the decisions rest upon sound principle. In the absence of all proof upon the point, the coúrt surely will not presume that officers have violated the law in the performance of their official duties. The statute gives the clerk power (section 98, ch. 13, Tay. Stats.), with, the approval of the circuit judge, to appoint a deputy, who may perform all his duties in his absence; and it must be presumed that the facts existed which gave the deputy the right to make the certificate in the present case. There is nothing in State ex rel. Hopkins v. Olin, 23 Wis., 318, in conflict with these views.

But it is insisted on the part of the defendant, that the order is not appealable, because its only effect was to continue the cause for the term. But this is a misapprehension of the effect of the order. The venue had been properly changed, and striking the cause from the calendar for the reason that the certificate transmitting the papers was void, not only prevented a trial in Ozaukee county, but everywhere else. That such an order affects a substantial right, and is appealable, was expressly decided in McLeod v. Bertschy, 30 Wis., 324, and Lee v. Buckheit, ante, p. 54.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.