Seehawer v. City of Milwaukee

39 Wis. 409 | Wis. | 1876

LyoN, J.

Tbe law does not give a party to an action tbe right to have tbe place of trial changed “ on account of tbe prejudice of tbe judge” (R. S., ch. 123, sec. 8), merely because tbe party fears or believes that tbe judge is prejudiced; but because be is prejudiced; and tbe fact that sucb prejudice exists must be made to appear, before tbe place of trial can lawfully be changed for that reason.

Yet, doubtless, it is sufficient, prmia faeie, to allege tbe prejudice on belief; because prejudice is a mental condition, and tbe party asserting it cannot, in tbe very nature of things, swear positively to its existence in tbe mind of tbe judge. Should such prejudice be averred positively, in form, it would amount to nothing more than an averment thereof on belief. Tainter v. Lucas, 29 Wis., 375. ITence, when the application is made to the judge whose prejudice is alleged, although alleged upon belief, the place of trial must be changed, pursuant to sec. 8, sv/pm, not merely because the party fears or believes that the judge is prejudiced, but because in such case the statute makes the averment conclusive proof that he is prejudiced.

It is clear, therefore, that the affidavit upon which the motion to change the place of trial was founded in the present case, was, for the purpose of the motion, conclusive of the prejudice of the circuit judge, although the averment of such prejudice is made on belief. The question to be determined is, whether it is also conclusive of the prejudice of the county judge. The answer to this question depends upon the construction of the following statutes relating to changing the place of trial of actions pending in the circuit and county courts of Milwaukee county: Laws of 1860, ch. 362, sec. 5; Laws of 1862, ch. 101, sec. 1; Laws of 1868, ch. 37, secs. 2 and 3; Laws of 1873, ch. 280, sec. 1. The first of these acts is now in force; and it required the circuit court to send this cause to the county court, unless it was made to appear, not merely that the plaintiff feared or believed that the county judge was prejudiced, but that he was prejudiced in fact. If the legislature intended that the averment thereof on belief should be conclusive evidence of the prejudice, nothing was easier than to say so in plain and unmistakable language. , It is fair to presume that, had the legislature so intended, sec. 5 of the act of 1860 would have been framed like sec. 8, ch. 123, R. S. That is to say, in such, case ‘ it would have been expressly provided in the act, that if the applicant made affidavit to the prejudice of the county judge as well as to that of the circuit judge, the cause should be sent to another circuit. Rut no such language is employed. On the contrary, language is employed which shows a manifest intention by the legislature that the averment of the prejudice of the county judge shall be adjudicated and. determined by the circuit court, like any other traversable averment of fact.

This view is strengthened by the amendatory act of 1862, supra, which provided that the prejudice of the county judge, because of which the circuit court was required to send the cause to another circuit, instead' of 'sending it to the county court, should be “ made to appear Toy the affidavit of a party to the action at the time of the application for such change of the place of trial.” Had the act of 1862 remained in force, the circuit court should have sent the case to another circuit; for it is clear that under such act, the affidavit would, for the purposes of the motion, have been conclusive of the existence of the alleged prejudice. But that act was expressly repealed by the law of 1868, supra, and the original sec. 5 of the law of 1860 reenacted by ch. 280, Laws of 1873. It is manifest that the legislature believed that the act of 1860 prescribes a different rule on this subject than was prescribed by the act of 1862. Had it desired that the affidavit of the prejudice of the county judge should continue to be conclusive of the fact, the legislature would, doubtless, have retained or restored the act of 1862.

An argument on behalf of the appellant, adverse to some of the views above expressed, was drawn from the phraseology of ch. 95, R. S. of 1849. That chapter was repealed by sec. 1, ch. 191, R. S. of 1858, and although it is preserved in the appendix to that revision (p. 1055), and appears in Judge Taylor’s compilation (p. 1425, §§ 14-16), we are not advised that it has been reenacted.

We conclude that, although the affidavit of the prejudice of the circuit judge deprived the circuit, court of jurisdiction to try and determine ‘the action, it did not deprive that court of jurisdiction to hear evidence and determine whether the county judge was also prejudiced. The circuit court exercised such last mentioned jurisdiction, and, on tlie evidence before it, we think decided the question correctly.

By the Court. — Order affirmed.