In denying tbe application to change tbe venue tbe learned trial judge filed a written opinion, wbicb was presented on tbe application for tbe writ and also embodied in tbe return to tbe writ. Tbe principal ground for refusing tbe application is that it was not made by tbe plaintiff in tbe action commenced July 30, 1904, nor by all tbe defendants in that action; and bence was not authorized by tbe statute, wbicb, among other things, declares, in effect, that:
“Whenever tbe judge . . . has been of counsel for either party, tbe court or tbe presiding judge thereof shall, upon application of either party, and may without such application, change tbe place of trial of such action or call in another judge in tbe manner prescribed in section 2625.” Stats. 1898, sec. 2623.
Tbe learned trial judge claims that under these sections tbe rule of law is tbe same as where an application is made for a change of venue on tbe ground of tbe prejudice of tbe judge, and “must be made by all tbe plaintiffs or all of tbe defendants, as tbe case may be, although tbe affidavit may be made by one of tbe parties for and on behalf of all tbe others.” This court has so held in straight actions at law. Rupp v. Swineford, 40 Wis. 28; Zeller v. Martin, 84 Wis. 4, 6, 7, 54 N. W. 330; Holm, v. Colman, 89 Wis. 233, 61 N. W. 767. But these cases recognize as well-established exceptions to such rule that:
“Where tbe interests of some of the defendants are in accord with those of tbe plaintiffs, or otherwise hostile to those of their codefendants, it seems that tbe statute should not be construed to require such defendants to join with their code-fendants in such an application to make it effectual. Merely formal parties defendant, also, or those having no real interest in tbe subject matter of tbe suit, should not be allowed to defeat such an application made by tbe other defendants. Such application, made by defendants who have appeared in tbe action, should not be denied because not joined in by one who has not appeared, but has made default.” Wolcott v.*56 Wolcott, 32 Wis. 63. See State ex rel. Cuppel v. Milwaukee Chamb. of Com. 47 Wis. 670, 3 N. W. 760; Hewitt v. Follett, 51 Wis. 264, 271, 8 N. W. 177; Eldred v. Becker, 60 Wis. 48, 51, 52, 18 N. W. 720.
In tbe case at bar tbe application, for tbe change of venue was made by tbe widow of Ira Eowell, wbo died July 19, 1886, and tbeir four children, and tbe husband of one of them, claiming an interest in the undivided one-fourth of tbe premises. -They constituted a group of defendants having interests in common in tbe premises sought to be partitioned, and may well be regarded as a party within the meaning of the section of the statutes quoted. Hundhausen v. Atkins, 36 Wis. 518. The only other parties to the action at the time of such refusal to change the venue were the plaintiff, John S. Eowell, and the defendant, the John S. Eowell Manufacturing Company; and they both objected to such change. The manufacturing company held a lease of the premises, executed by John S. Eowell, on the undivided three-fourths of the premises-, and thereunder claimed tbe exclusive right to certain buildings and machinery on certain portions of the premises. Their interests were in accord as to the lots without such buildings,' and, as a large stockholder in the corporation, John S. Eowell had a common interest in such buildings with the corporation. It is to be observed that the application for the change of venue was not made on the ground that the trial judge was prejudiced “on a matter of law” or “on the facts,” but on the ground that he had “acted as attorney or counsel” for one of the parties in the action. It is admitted that the summons and complaint in the action commenced November 1, 1895, were both signed by “James J. Dick, Plaintiff’s Attorney.” John S. Eowell and wife were plaintiffs in that action, which was for the partition of the ten lots of land therein described; and the same was against Mary I. Rowell and her four children, and two sons of John S. Eowell and their
“In case any judge of any court of record shall be interested in any action or proceeding in such court or shall have acted as attorney or counsel for either of the parties thereto-such judge shall not have power to hear and determine such action or proceeding or to make any order therein, except with the consent of'the parties thereto.” Sec. 2579, Stats. 1898.
This language is very broad. It is claimed on the part of the relator to be broad enough to disqualify any judge from hearing and determining any action or proceeding in case he had ever acted as attorney or counsel for either of the-parties thereto in any matter, however foreign to the action so to be determined. But such a construction would be-absurd and work great inconvenience. The manifest purpose-of the statute was to secure to litigants and the public an impartial judicial tribunal, free from any bias or temptation or ground of suspicion. It disqualified the judge, however, only in case he had acted as attorney or counsel for either of the parties to the action or proceeding in the matter so to be heard or determined. In this case the judge had acted as the attorney of record in the first action for partition. He was necessarily of counsel for John S. Howell and wife in respect to such partition. As judge, and on the application of his former client, he ordered the discontinuance of that action without prejudice to the bringing of another action for the partition of most of the same lands by John S. Howell. Such new action was commenced the next day. True, he did not appear as attorney of record in that action, and no one supposes he acted as counsel at the time of making that order, but he had previously acted as counsel for the surviving plaintiff, John S. Howell, as to such partition, which
“A change of tbe place of trial may be bad on tbe ground that tbe judge of tbe court in which tbe action was brought bad received a general retainer from one of tbe parties.” Kern Valley W. Co. v. McCord, 70 Cal. 646, 11 Pac. 798.
So in Michigan it has been held that a circuit judge was-disqualified to sit in a case by reason of bis having been counseled regarding tbe subject matter of tbe suit. Curtis v. Wilcox, 74 Mich. 69, 41 N. W. 863. See Horton v. Howard, 79 Mich. 642, 44 N. W. 1112; Joyce v. Whitney, 57 Ind. 550. This court has never been called upon to consider tbe precise question here presented, but it has determined a question quite analogous and one involving tbe same principle, arising under tbe next section of tbe statute, which declares, in effect, that no justice of this court “shall decide- or take part in tbe decision of any cause or matter which shall have been determined by bim, while sitting as a judge of any other court.” See. 2580,- Stats. 1898. In a case-where a justice of this court was disqualified by that statute from participating in tbe decision of tbe same by reason of having previously determined the cause or matter at the-circuity it was held that tbe judgment of this court in which be so participated was “coram non judice and void,” notwithstanding be was only one of tbe five justices so deciding the-cause in this court. Case v. Hoffman, 100 Wis. 314, 352-358, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945. In construing that section in that case Mr. Justice Wmsnow, speaking for tbe whole court, said that tbe section “is manifestly founded upon tbe idea that in an appellate court tbe parties-
By the Court. — The demurrer to the return is sustained, and the alternative writ of mandamus heretofore issued is 'hereby made peremptory, with direction that the trial “court •or the presiding judge thereof” shall forthwith “change the place of trial of such action or call in another judge in the manner prescribed in section 2625” of the Statutes of 1898; 'but without costs.