Risto v. Harris

18 Wis. 400 | Wis. | 1864

By the Court,

Oole, J.

It is true it was remarked in Runals v. Brown, 11 Wis., 185, that the previous provisions of law in regard to a change in the place of trial on account of the prejudice of the judge before whom the cause was pending, had been substantially embraced in chapter 123, R. S.; but by this language it was not intended to decide that the application must necessarily be in the form of a petition. The court was there'considering the substance or nature of the proceeding, rather than the particular form in which the application was made. Our present statute says: “ Whenever any party, in any civil action, pending in any court of record, shall apply for a change of the place of trial of such action, on account of the prejudice of the judge of such court, and shall verify such application by his oath or affidavit, the court shall change the place of trial of such action.” Sec. 8, chap. 123, R. S. In this case the application, and the grounds upon which it was made, are in the form of an affidavit, and come up fully to the requirements of the statute. We therefore can perceive no error in the manner in which the cause was transferred to the county court.

Nor can we see that there was any error in awarding judgment to tbe plaintiff upon the pleadings. The answers did not deny that the plaintiff performed work and labor for the defendants at their request, and that they were indebted to him therefor in the amount claimed in the complaint. The plaintiff states distinctly that he worked for them a given period, and that he bad an accounting with their duly authorized agent for such services, and the agent gave a note for the amount found due in the name of and in behalf of the defendants. Now concede that the defendants were not partners in the business of gold digging, and that Kimball had no authority to execute notes for them, still if the plaintiff performed the services for them alleged in the complaint, this constituted a good cause of action. And the defendants did not deny that this cause of action existed against them, or that they were justly indebted to the plaintiff in the sum for which judgment was demanded.

Erom the view we have taken of the cause it becomes unnecessary to notice the preliminary questions raised on the brief of the counsel for respondent, as to the regularity of the appeal.

The judgment of the county court is affirmed.