State ex rel. Dearborn v. Merrick

101 Wis. 162 | Wis. | 1898

MaRshall, J.

Did the filing of the affidavit of prejudice and the motion thereon for a change of venue made on the adjourned day of the case, the plea of not guilty having been first withdrawn by permission of the court, oust the justice of jurisdiction? That appears to be the principal subject presented for our determination. The right to the change of venue was governed by sec. 4744, E. S. 1878, -which reads as follows: “ On the return of the warrant with the accused, the said justice shall proceed to hear, try and determine the cause within one day, unless continued for cause; and if the defendant shall, before he pleads to said complaint, make oath that from prejudice or other cause, he believes the justice will not decide impartially in the matter, then said justice shall immediately transmit all the papers in the case to the nearest justice of the same county, qualified by law to try ” the cause. That the right to a change of venue was waived .by the act.of plaintiff in error in pleading to the complaint, by the express language of the statute, seems to be too plain for controversy. The right is wholly statutory, therefore no reason is perceived for the contention that it can be revived after having been once waived. To hold that would be to ingraft onto the statute a proviso that, if a plea be once entered to the complaint and thereafter withdrawn by permission of'the court, at any time before final bearing, tbe right to a change of venue on the defendant’s complying with the statute governing the subject shall thereby be revived. That could not properly be called judicial construction, because the statute is too plain to require construction. It says, unmistakably, that the change of venue may be had if applied for before pleading to the complaint. We must hold to that plain meaning, and that if a plea be once entered the right to the change of venue is thereby irrevocably waived. Other courts have reached a similar conclusion in respect to similar statutes. In Allen v. Coates, 29 Minn. 46, the statute gave defendant the right to a change of venue on complying therewith, if applied for within the time for answering. After default, leave was given to answer by a day named, and the cause was adjourned to that day. Before answering on the adjourned day the defendant made his application for a change of venue, and it was denied. On appeal the court, by GriLFiLLAK, O. J., said, in effect, that after the time for answering has expired the right to demand a change of venue is gone. An order granting leave to answer does not revive that right.

It is further assigned for error that the justice’s docket does not show the adjournment of the case was for cause. It is a sufficient answer to that, as the attorney general suggests, that the adjournment was granted on request of the defendant. That effectually waived the necessity for cause. The rule is that where a case is adjourned by consent of a party he cannot thereafter challenge the jurisdiction of the justice because no cause was shown; and, unless it affirmatively appears to the contrary, the court will presume in favor of the justice’s jurisdiction that proper cause was shown or that consent was given. Baizer v. Lasch, 28 Wis. 268. The case is unlike those where the court lost jurisdiction by failing to state at whose request the adjournment was granted, and to what time and place. Entries upon the docket showing those facts are jurisdictional, because expressly required by statute. R. S. 1878, sec. 3574; Jones v. Hunt, 90 Wis. 199; Witt v. Henze, 58 Wis. 244; State ex rel. Marsh v. Whitter, 61 Wis. 351. There is nothing in Hepler v. State, 43 Wis. 479, inconsistent with the foregoing. The defect there was that the docket failed to show the fact of adjournment. The decision in Harrington v. State, 50 Wis. 68, was intended to follow Hepler v. State, supra, as it properly might, because the fact of adjournment was not stated in the docket. The further jurisdictional defect suggested in the opinion by Mr. Justice Lyon,— failure to state the cause of the adjournment,— finds no support in the Hepler Case or any requirement of the statute, and is contrary to Baizer v. Lasch, supra. It overlooked the wording of the statute, which plainly does not require the cause to appear upon the docket, while it does require the fact of adjournment to apjDear, with the time when and the place where the cause will again be called for further proceedings.

It is further contended that it was error to convict the accused on an amended complaint which had not been sworn or pleaded to as amended. If that was error,— and we think it was not,— certainly it was not jurisdictional, therefore cannot be reviewed on this proceeding to test the action of the circuit court in sustaining the jurisdiction of the justice. Proper amendments to the complaint did not render it necessary that it should be resworn to, or that a new plea should be entered. Rasmussen v. State, 63 Wis. 1; Baker v. State, 88 Wis. 140.

By the Ooivrt.— The judgment of the circuit court is affirmed.