Ross v. Hanchett

| Wis. | Jun 4, 1881

Cassoday, J.

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" court="Wis." date_filed="1866-06-15" href="https://app.midpage.ai/document/frank-v-avery-6599649?utm_source=webapp" opinion_id="6599649">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" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/lego-v-shaw-6601881?utm_source=webapp" opinion_id="6601881">38 Wis., 401; Church v. Milwaukee, 31 Wis., 512" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/church-v-city-of-milwaukee-6601117?utm_source=webapp" opinion_id="6601117">31 Wis., 512. This court has gone still further, and held that, in the exercise of such discretion, the trial judge may take into account matters within his own knowledge and observation, as well as the proofs presented. Schattschneider v. Johnson, 39 Wis., 387" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/schattschneider-v-johnson-6601990?utm_source=webapp" opinion_id="6601990">39 Wis., 387; Jackman Will Case, 27 Wis., 409" court="Wis." date_filed="1871-01-15" href="https://app.midpage.ai/document/jackman-will-case-6600615?utm_source=webapp" opinion_id="6600615">27 Wis., 409. In the Jaolcman Will Case, one trial had already been had, lasting for many days, before the same judge who granted the motion removing the cause, and of course he knew many facts and circumstances which occurred upon the trial, which might be difficult to express in affidavits, and which others might not know or observe. Just how far a circuit judge may avail himself of facts and circumstances within his own knowledge and observation, which did not occur in court nor in qonnection with the case, it is not necessary here to determine.

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 more than 20,000 inhabitants, who would fairly try questions of fraud committed by members of such association. We cannot believe that any very large association of men could be found in that, or any other county in Wisconsin, for the avowed purpose of swindling, or that any considerable number of the members of such association would countenance fraud upon the part of the association, or its members. Besides, powerful associations generally stimulate powerful opposition in the very locality where they are strongest. But, as we have seen, this question of removal rested in the sound discretion of the circuit judge, and in view of the facts stated in the sixteen affidavits made by residents of that county, and read in opposition to the motion, we are not prepared to say that there was an abuse of discretion.

By the Court.— The order of the circuit court is affirmed.