52 Wis. 491 | Wis. | 1881
This is an appeal from an order refusing to change the place of trial in this action from the circuit court for Monroe county, on the groiind that an impartial trial could not be had therein. Subdivision 2, sec. 2622, R. S., provides that “ the court, or the presiding judge thereof, may change the place of trial . . . where there is reason to believe that an impartial trial cannot be had therein.” It will be noticed that it is not enough to enforce the change, that the party “ believes that an impartial trial cannot be had therein,” but “the court, or the presiding judge thereof,” must be satisfied that “there is reason” for such belief. It was incumbent upon the appellant to clearly establish his inability to obtain an impartial trial in Monroe county, by proof of facts and circumstances from which the court could determine for itself that the application was well founded. Frank v. Avery, 21 Wis., 166. “The granting or denying of such an application, duly made, upon the grounds above named, is a matter within the sound discretion of the court in which the action is pending, and its ruling will not be disturbed unless there has been an abuse of discretion.” Lego v. Shaw, 38 Wis., 401; Church v. Milwaukee, 31 Wis., 512. This court has gone
The four moving affidavits in this case were each made by residents of Dane county, who base their belief mainly upon information derived from the defendants and others from Monroe and Dane counties. Ordinarily such affidavits, or some of them, are made by persons residing in the county where the suit is pending, and who are conversant with the facts about which they testify. The necessity of obtaining affidavits from such persons would seem to be almost imperative. Here it is claimed, however, that the persons making the affidavits, on the part of the appellant obtained their information largely from the defendants themselves, and other residents of Monroe county; and that the fact of the existence of the association, and that members of it reside in several towns of that county, are admitted. But the mere existence of such an association, and the fact that its members resided in different towns in the county, and that some, in the name of the association, had committed frauds, would not necessarily establish the fact that an impartial trial could not be had in that county. It would be strange indeed if any association could be found in any locality so powerful and influential that an impartial jury could not be had, in .a county containing
By the Court.— The order of the circuit court is affirmed.