Moe v. Moe

39 Wis. 308 | Wis. | 1876

LyoN, J.

I. The first motion for a change of the place of trial to Portage county should have been granted. The notice of motion contained a good demand for such change under the statute (R. S., ch. 123, sec. 4), and the affidavit of the ■plaintiff that the judge of the seventh circuit' is prejudiced against her, is not sufficient to defeat the motion. Such affidavit may show that the action should not be tried in that circuit; and if it be renewed.when the cause is sent to Portage county, the circuit judge will doubtless send the cause out of his circuit; but it does not show that the trial ought to be had in Milwaukee county. In that respect it is quite unlike the case of Couillard v. Johnson, 24 Wis., 533, where it was made to appear that the action ought to be tried in the county in which it was commenced. We hold that in this and similar cases, an affidavit of the prejudice of the judge of the circuit court for the county in which the ’ defendant resides, is not, of itself, sufficient ground for denying a motion to change the place of trial to that county. The order of May 17,1875, denying the plaintiff’s motion to change the place of trial to Portage county, must be reversed, and the cause remanded with directions to the circuit court to grant such motion. The defendant must pay the costs of the appeal from the order of May 17; but no attorney’s fees shall be taxed therein against him.

II. The defendant having obtained by his first appeal all that he seeks to obtain by his appeal from the order of May 26, the latter appeal is superfluous, and must be dismissed. Young v. Groner, 26 Wis., 205.

III. The demand that the place of trial be changed to Portage county was made under sec. 4, ch. 123, R. S., and did not operate as a stay of proceedings, as it would have done had tbe summons been served in any other than Portage county. Laws of 1869, cb. 185 (Tay. Stats., 1423, § 5). No order was made staying proceedings in tbe action pending tbe motion. Under these circumstances it must be held, on tbe authority of Bonnell v. Gray, 36 Wis., 574, that pending such motion tbe court bad jurisdiction of tbe action, and authority to make tbe order for tbe payment of temporary alimony and suit money. In making that order tbe court bad before ' it only tbe complaint and petition. True, tbe answer bad been served when tbe motion was determined and tbe order made; but it was not filed until June 4th, and was not before tbe court on tbe bearing of tbe motion.

Taking tbe facts stated in tbe petition as true, tbe allowance does not seem excessive. We must therefore affirm tbe order of April 20th. But tbe whole matter is under tbe control of tbe proper circuit court; tbe defendant is at liberty to apply to that court for a modification of tbe order; and tbe court may in its discretion allow, on tbe attorney’s fees therein directed to be paid, any attorney’s fees which shall be taxed against and paid by tbe defendant, on these appeals.

By the. Gourt. '- — Order of March 17th reversed; that of April 20th, affirmed; and tbe appeal Rom tbe order of May 26th, dismissed.