Rupp v. Swineford

40 Wis. 28 | Wis. | 1876

Ryan, C. J.

The defendants had a right to sever in their pleadings; and the court below has discretion to allow them separate trials. Ob. 132, sec. 9, R. S. Rut tbe action cannot be severed. It is indivisible, because there can be but one judgment in it. Hundhausen v. Bond, 36 Wis., 29. Two courts cannot entertain concurrent jurisdiction of one cause, or concur in rendering one judgment. A change of venue cannot cut an action in two, carrying part with it and leaving part behind. And the question before us is, whether one of several defendants is entitled to change the venue of the whole action, without the concurrence of his codefendants.

In Wolcott v. Wolcott, 32 Wis., 63, it was held, in a suit in equity, that a change of venue might be had on the application of all the defendants defending the suit, without the concurrence of one not having a common interest, not defending, and in default. It is there said that the same rule might apply to the nonconeurrenee of a formal and even of a hostile defendant. It is obvious that these suggestions apply peculiarly to equitable suits; and indeed the rule of that case does. For, in actions at law, especially of tort, there cannot well be formal defendants; and even defaulting defendants have aright to be heard on the question of damages.

It is said, however, in that case, that some of several plaintiffs cannot change the venue without the concurrence of all. So we all thint now. And we hold that the same rule applies to defendants in actions at law, whether joining or severing in their defenses. The statute gives the right to a party plaintiff or defendant, not to one of several plaintiffs or defendants. Changes of venue may sometimes be hard upon the opposite party; they might be hard upon both parties if they should go upon the application of a single plaintiff or defendant, where there are several, against the will of his co-plaintiffs or codefendants. The rule which we adopt is sanctioned by Sailly v. Sutton, 6 Wend., 508. And, for reasons already indicated, we cannot concur in the exception which seems to be recognized in Welling v. Sweet, 1 How. Pr., 156.

It is true that we have held that each of several defendants, severing in their pleadings, and setting up essentially different defenses, is to be considered a party within the meaning of sec. 37, ch. 118, R. S., for the purpose of challenging jurors. Hundhausen v. Atkins, 36 Wis., 518. But none of the reasons applying in that instance are sufficient to overcome the difficulties in this. And there surely is no rule of construction requiring the same meaning to be given to the same word, used in different connection in different statutes. We must give a reasonable construction to the word jparty, as to any other word, in view of the connection in which it is used, as often as it occurs.

It is indeed possible, in actions ex delicto, and even in actions ex eontraetu, for plaintiffs to attempt control of the venue by mating collusive defendants. That would be a fraud upon the statute, which would probably avail nothing when made to appear (Blake v. Raemisch, 26 Wis., 586), and cannot properly influence the construction of the statute itself.

By the Gowrt. — The order of the court below is affirmed.