Rines v. Boyd

| Wis. | Jan 15, 1859

By the Court,

Smith J.

The petition set forth in the hill ot exceptions in this case seems to be in strict conformity with the statute, and we do not perceive why the circuit judge should have hesitated to grant the prayer thereof. The statue of 1S53, it would seem, takes away all discretion of the judge in cases of this kind. Those conversant with the history of the times and the construction put by the courts upon the provisions of chapter 95, § 1, of the revised statutes of 1849, by which the judge was held to be obliged to decide upon the fact of his own prejudice, know, that the very object of the last act was to relieve the judge from that delicate duty, and to make it imperative upon him to remove the case wherein the prescribed petition should be properly presented. This matter was so decided by this court in the case of Baldwin vs. Marygold, 2 Wis., 419.

But it is contended that §§ 302, 303 and 304 of the code of procedure have repealed or modified this last act of the legislature. But such cannot be the fact. There are no repealing words affecting the provisions of that act. The proceeding for a change of venue under the act of 1853, and of the revised statutes of 1849, is a proceeding sui generis, outside of the regular course of procedure, and adopted by the legislature for the supposed greater security of suitors.

We are not disposed to pronounce it unwise ; certainly it is not unconstitutional, and assuredly it is imperative because it is unrepealed.

The code, therefore, having no relation to the case, we are only required to ascertain whether the petition of the appellants met the requirements of the provisions of the statute bearing upon the subject. It should be remarked as before observed, that this proceeding is not one occurring in the regular and oidinary prosecution or defense of a cause. It is essentially distinct in its character, interrupting and transferring the prosecution or defense to another forum. It is not founded upon motion, but upon petition, and the statute being special, having reference to this special proceeding, it is difficult to perceive how the provisions of the code, which were designed to prescribe an uniform rule of practice for all cases, can apply here, especially as the special statute was not repealed by the code in terms, and both may well stand together.

But it is claimed that the application for change of venue should have been upon eight days’ notice. The special statute applicable to cases of this kind requires that reasonable notice should be given to the adverse party. In Baldwin vs. Marygold, before cited, we had occasion to pass upon the question of reasonable notice, and to decide the precise question in point here. We there said, “ Reasonable notice is all that is required, and when a petition of this kind is presented in open court, in the presence of the attorney or counsel of the adverse party, it is sufficient notice of the filing.” If the adverse party should desire time to interpose an objection, or to dispute the regularity or conformity of the proceeding with the statute, he should apply in the usual form.

When the application is made in vacation, a different rule prevails, as stated in the case last cited.

In this case all the parties were in court, the application was made in open court in presence of both parties ; no time was asked to prepare for the hearing or examining of the petition. The case just cited from 2 Wis., Rep., is conclusive upon this, and the judgment must therefore be reversed.

Judgment reversed with costs and carise remanded.