133 Wis. 458 | Wis. | 1907
The undisputed facts set forth in the foregoing statement suggest the several questions discussed in the briefs of the respective parties. Whether the order of December 4, 1903, striking out the affidavit of prejudice filed with the clerk seven weeks before for the reasons given by the defendant, was void, and whether the order of October 6,1905, denying the application of May 3, 1905, for a change of venue for tire reasons given by the defendant, was wrong, have both been carefully considered by this court; but the view we have taken of the case makes it unnecessary for us to determine either of those questions. In fact we do not regard those questions as properly before us for review on this application for a mandamus. After such proceedings were had and on or about November 1, 1905, the relator made in open court and filed in said court a new application for the change of the venue of said action, based upon the affidavit of said relator sworn to October 26, 1905, to the effect 'that he had “good reason” to and did believe that he could not have a fair trial of such action on account of the prejudice of the defendant, and that he made the application for a change of the place of trial of said action as by the statutes in such case
“The general purpose of this section is reasonably clear; but, unfortunately, its terms are by no means clear. The purpose was to secure to a party making an affidavit of prejudice a trial before an unprejudiced judge without the transfer of the case to another circuit, and at the same time to secure both parties against a long delay which might easily result were there no limitation on the time within which another judge might be called in. ■ In other words, the purpose was to secure not only an unprejudiced trial, but a trial in the home circuit, provided a competent judge seasonably attends. It evidently contemplates that there shall always be one term during which the case can be tried in the home circuit, and that such, term shall be a term at which the ease is in situation to be moved peremptorily for trial. It clearly does not contemplate that the case shall be sent from the circuit after the lapse only of a term at which it could not be tried.” Id.
It follows from what has been said that the relator is not. entitled to the mmdamus prayed for.
By the Court. — The demurrer to the return is overruled and the relation is dismissed.