Dodge v. Barden

33 Wis. 246 | Wis. | 1873

Dixosr, C. J.

Tbe effect of the several ex parte orders was, to leave tbe condition upon which the time to answer was extended, as fixed by the second order of the county judge, made on tbe 21st day of September. That condition had been interfered with, or its operation defeated, by the order of the court commissioner made on tbe same day, staying all proceedings in the action on tbe part of the plaintiff until tbe bearing of tbe order to show cause made by tbe commissioner, and which was set down for tbe 7th day of October. On application made by the plaintiff, also ex parte, on the 24th day of September, the court commissioner modified the order previously made by him, so as to permit the plaintiff to notice the cause for trial, and notice of trial was on the same day served on the attorneys of the defendant. At the time of such service, therefore, the condition of extending the time to answer, as imposed by order of the county judge, was in full force, and operative. That condition was, in words, “ that the issue in this action be of the date when said answer is originally due, and that the plaintiff have leave to notice said cause for trial at the October term of the circuit court, and that the defendant’s attorneys accept notice of trial for said term; and that said cause be placed upon the calendar for trial at said term.” It was a valid condition, and such as the judge making the order was authorized to impose. The answer was originally due on the 23d, so that the cause was regularly noticed for trial on the 24th of September, although, under operation of the order extending the time, the answer did not in fact come in until the 10th of October following.

The first application for a change ox venue was irregular, and properly denied. It was an application, as appears from the affidavit of verification of the defendant, made on the ground of “prejudice or other cause" on the part of the judge, from which the defendant believed the judge would not decide impartially in the matters involved in the action. The statute recognizes but one ground for such application, and that is, “on account of the prejudice of the judge of such court.” 2 Tay. Stats., 1424, § 10. The application must be limited to the case provided for by the statute, since to permit it to be extended to others, or to allow removal for causes not named in the statute nor in the application, would lead to the greatest abuses and perversion of the remedy intended to be given by the legislature.

The second application for change of place of trial was ordered by the court on payment of $15 costs b}1, the defendant to the plaintiff. The defendant refused to pay the costs, denying the authority of the court to impose them, and no further proceedings were taken under the order. Thereupon, the cause being reached in its order on the calendar, the plaintiff moved it for trial, and was allowed to proceed, and a verdict was returned in his favor, upon which he has perfected judgment against the defendant, from which the latter brings this appeal.

The grounds upon which the defendant refused to pay the costs were : first, that he had given the notice of motion for a change of the place of trial ten days before the term, as prescribed by chapter 107, Laws of 1872, so that the payment of costs could not be required by virtue of that act; and, second, if such notice of motion had not been given, that the provision of the act requiring such payment is unconstitutional and void.

It is very clear that no sufficient notice of the motion was given. The motion was made on the 18th of October, upon an affidavit subscribed and sworn on the 12th of the month. The term of court commenced on the 7th. The rule of court (Circuit Court Eules of 1849, Eule 11) requires that “ the affidavits, papers or records whereon a motion is to be founded, shall be served upon the attorney of the opposite party, with the notice of motion.” 2 Tay. Stats., 2020, Eule 11. The affidavit was not served with the notice of motion, and could not have been. It was not made until more than two weeks after service of the alleged notice.

The regulation of the act requiring the payment of the costs in case the moving party neglects to give the prescribed notice, is a reasonable and just one, and not in violation of sec. 9, art. I of the constitution. It is not compelling the party to purchase justice, but to suffer the consequences of his own laches, by obliging him to compensate the losses of the opposite party, sustained for the want of such notice. It is well known that, after numerous continuances and other dilatory proceedings, the motion was often sprung on the eve of trial as a last resort to obtain still further delay, when the plaintiff had been to great trouble and expense to prepare for such trial. It was to obviate such mischiefs, wherein before its enactment the opposite party was remediless (see Goodno v. The City of Oshkosh, 31 Wis., 135), that the act was passed ; and it was a much needed, salutary and constitutional statutory requirement.

By the Court.— Judgment affirmed.