The first question raised by the defendants requires us to determine the effect of the filing of the affidavit of prejudice and the proceedings in the circuit court for Marathon county subsequent thereto. An intelligent consideration of this question requires a brief review of the history of this'sec. 2625, Stats. 1917. Prior to 1853 the judge was required, upon the filing of an affidavit of prejudice, to decide upon the fact of his own prejudice. In 1853 the statute was amended so as to make it the imperative ‘duty of the judge, when a proper affidavit was filed, to remove the case to another circuit. Rines v. Boyd, 7 Wis. 155. Sec. 2625, R. S. 1878, provides:
“The court shall change the place of trial of any action upon the application of any party thereto who shall file his affidavit, that he has good reason to believe, and does believe, that he cannot have a fair trial of such action on account of the prejudice of the judge, naming him.”
Under this statute it was held that upon the making of the ¿motion, upon a proper affidavit, the judge lost all right to act further in the case except to make a proper order for the removal thereof, and that having on his demand the right under the law a party did not waive it by going to trial thereafter in the court where the action was pending. Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177, and cases cited.
By ch. 435 of the Laws of 1887, sec. 2625. was amended to read as follows:
“Whenever an application shall be made in any civil or criminal action or proceeding in any circuit court for a*419 change of the place of trial on the ground of the prejudice of the judge of the court in which such action or proceeding is then triable, such judge, in his discretion, may retain such action or proceeding in the same court without entry of an order to change the place of trial, until the last day of the then current term, if the application is made at a term at which the action or proceeding is triable, or the next term if it is made in vacation; and in the meantime shall call upon some other circuit judge or judges to attend and hold court during such current or next term, for the purpose of trying all such actions or proceedings in which applications for change of place of trial have been made on account of the prejudice of the circuit judge.”
In Northwestern Iron Co. v. Crane, 66 Wis, 567, 29 N. W. 654, the construction of the first clause of the statute adopted in Hewitt v. Follett, supra, was adhered to.
The statute further provides;
“But if no such judge can so attend, an order for a change of the place of trial shall be entered in each action and proceeding, wherein proper application has been made, on the last day of such term, and thereupon such change shall be made.”
In this case, however, another circuit judge was called and did attend and did hold court within the time prescribed by statute. It is apparent, therefore, that jurisdiction of the action remained in the circuit court for Marathon coiinty.
It was held in Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177, that the affidavit, being in law conclusive evidence of the prejudice of the judge, disqualified him, and that he was thereafter in a situation similar to that of a judge who was a party interested in the matter in controversy.
The provision of the statute requiring a change of venue upon the filing of a proper affidavit of the prejudice of a trial judge has not, since the amendment of 1887, imperatively required a change of venue except in those cases where no other judge has been called in to try the case.
Under the circumstances in this case there was no duty-resting upon the circuit, judge against whom the affidavit was filed to send the case to another county. It may be inferred from the record, and such no doubt is the case, that the fact of the filing of the affidavit of prejudice had wholly passed from the mind of the trial judge and he proceeded in the action of 1920 and 1921 without having the matter, in any way called to his attention. It is clear in this case that the circuit court for Marathon county did not lose jurisdiction, and therefore the question of -vyhether or not jurisdiction of the court can" be conferred by act of the parties does not arise as it did in the cases of Rines v. Boyd, 7 Wis. 155; Runals v. Brown, 11 Wis. 185; and Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177.
The question presented here is, Can a party waive the disqualification of the judge, created by the filing of the affidavit, by subsequently appearing and proceeding with the cause as if no affidavit had been filed ?
In Franke v. Neisler, 97 Wis. 364, 72 N. W. 887, an affidavit of prejudice was presented to the trial judge. He suggested that other parties should join in it, and thereupon the attorney presenting it withdrew it, tore it up, and the trial proceeded. It was held that the application was not refused but was withdrawn and it was competent for the party presenting it to withdraw it.
In Greene v. American M. Co. 153 Wis. 216, 140 N. W. 1130, it appears that the case had been partially tried when proceedings were discontinued with the purpose of commencing the trial anew. An affidavit of prejudice having been filed, the case was assigned in the same circuit (Milwaukee county) for trial before another judge. It was claimed that the court had no jurisdiction to proceed. In disposing of this contention the court said:
*421 “The trial was entered upon and proceeded to judgment without objection. The court, as presided over by the judge in question, had jurisdiction of such subjects. The voluntary submission to the trial gave it jurisdiction of the parties and of the particular controversy. If it did not have the same before, exercise thereof was not such a jurisdictional matter as to be unwaivable.”
In Runals v. Brown, 11 Wis. 185, the defendant upon filing an affidavit of prejudice left the court room and did not thereafter engage in the trial. In Rines v. Boyd, 7 Wis. 155, the defendant filed a petition alleging prejudice of the trial judge and gave notice of a hearing thereon two days later. Plaintiff’s counsel objected to the application that eight days’ notice had not been given, and the objection was sustained by the court. Thereupon the defendant applied to the court for an order to show cause why the place of trial should not be changed pursuant to the prayer of the petition. This was also refused. Counsel for the defendants then asked the court for the postponement of the trial for eight days. This application was likewise denied. It will be seen from a consideration of the facts in the case at bar that the circumstances upon which the waiver was predicated are very different from the circumstances in Rines v. Boyd, supra, and it must be borne in mind that that case was decided under a statute which required a change of venue and under which the filing of the affidavit was held to deprive the court of jurisdiction. We are not disposed to limit or overrule these decisions. On the other hand, we do not think that they should be extended to' cover situations not clearly contemplated by the legislature. As is stated in prior decisions, the object and purpose of the statute is to obtain for a party a trial in his home county before an unprejudiced judge, and it is only when another judge cannot be secured that the venue of the action must be changed.
That the disqualification of a judge may be waived by the parties except where it is otherwise provided by statute
It is expressly provided by sec. 2579, Stats., that the disqualification of a judge by reason of his interest in the action or by the fact that he has formerly acted as attorney or counsel for either of the parties may be waived by consent.
Sec. 2623 provides: “Whenever the judge is a party or interested in the matter in controversy in any action pending before him, or is related to or has been of counsel for either party, the court or the presiding judge thereof shall, upon application of either party, and may without such ■application, change the place of trial,” clearly implying that if the parties do not make such application the judge, unless’ he act upon his own motion, may continue to exercise jurisdiction in the case.
In this case, as has been pointed out, the judge promptly complied with the statute upon the filing of the affidavit. The case properly remained in the circuit court for Marathon county. There cannot be the slightest doubt that, had the attention of the trial judge been called to the fact that an affidavit of prejudice had been filed, he would have promptly proceeded to call in another judge. The question raised here was never called to his attention, so far as the record discloses, before the trial, at the trial, or after the trial. After nearly four years of delay the parties proceeded as if the case was duly and regularly pending in the circuit court for Marathon county. An application to amend the pleadings was granted. The defendant, who here raises the question, not only failed to call the attention of the court to the fact that the affidavit had been filed, but answered the amended complaint and interposed an equitable counterclaim demanding affirmative relief. The cause was fully tried upon its merits, submitted to a jury, and thereafter motions were filed by the defendants asking for judgment
This is no doubt an extreme case. It is clear that a waiver of disqualification is not contrary to the policy of our law, as indicated by reference to the statutes and decisions cited. A waiver should not be implied except where the facts are clear and it appears that no right, of the party in respect thereto has been consciously denied by the judge. That the judge against whom the affidavit was filed would have authority to proceed if a written waiver were filed in a case like this is clear. We think it is equally clear that it may be inferred from the conduct of the defendants in this case.
By the terms of the contract the plaintiff was to pay down $490 on or before September 25, 1912. In addition to $10 paid at the time of the execution of the contract,
The contract contained the following provision: “Then the balance on or before ten years from date, interest six per cent, per annum, first year without interest.” The trial coitrt construed this clause to mean that the remainder of the purchase price was to be paid on or before ten years from the date of the contract except there was to be no interest
The trial court sustained an objection to evidence offered to explain the meaning of the word “clear” as used in the contract. Upon motions after verdict the trial court was of the opinion that refusal to receive this evidence constituted error, but refused to grant a new trial if the plaintiff should consent to judgment on the basis of allowing $30 per acre for cl earing land under the contract. One of the defendants testified upon the trial that it would cost $30 per acre to clear the land as that term was understood and used in the contract. The plaintiff consented to entry of' judgment in accordance with the suggestion of the court.. As to the defendants the error was fully cured.
In the course of the trial it appeared that the premises im question had been sold by the defendants for the sum off $1,865 after improvements costing $450 had been placed thereon. It also appeared that the defendants had accepted in payment of the purchase price forty acres of land from the purchaser, Waszut. The defendants offered to show the expense of selling land of the same character as they received in exchange, to wit, the forty acres in question. The defendants offered this testimony apparently for the purpose of arguing that the cost of selling should be deducted from the agreed purchase price. This testimony was excluded by the trial court and we think correctly. If the land received in exchange was not worth the stated price, the defendants no doubt had a right to show the value of the property received by them, but no effort to show its. value was made. If the land received by them in exchange
It is also argued that there is no evidence to sustain the •finding of the jury to the effect that the land a£ the time of the sale was worth $1,415 exclusive of the improvements placed thereon by the defendants. We shall not attempt to recite the testimony upon this point. It appears that that was the amount received for the land by the defendants in exchange. Taking into consideration the selling price in 1912, the improvements placed upon the premises in question by the plaintiff, the increase in value which would have attached had the defendants cleared five acres of land in accordance with their contract, and other testimony in relation to the value of the premises, together with the fact that the agreed sale price was $1,415, and the further fact that farm lands generally appreciated in value between the date of the contract and the date of sale, we are of the ■opinion that there is ample evidence to sustain the finding.
The defendants set up in their answer a claim that the cause of action sued upon had been settled. This refers to a settlement alleged to have been made before Judge Park in January, 1917. It is claimed by the defendants that they were to repay to the plaintiff the amount paid by him, and in addition thereto. $150 for improvements placed upon the land by the plaintiff, in full settlement.
It appears that, if a settlement was reached, it was made
The court gave the plaintiff judgment for the value of the land as of the date of sale less such sums as were due and owing by the plaintiff to the defendants, including the remainder of the purchase price, interest, and taxes. We think the basis upon which the judgment was awarded is correct.
Other errors assigned need not be discussed in the view which we take of the case.
By the Court. — Judgment affirmed.