51 Wis. 398 | Wis. | 1881
This action was commenced in the municipal court of Dane county by the personal service of summons on the defendants at the city of Madison, they being then temporarily in said city, but in fact being residents of another county. There was no appearance on the part of the defendants in the municipal court, and judgment was rendered against them, from which they appealed to the circuit court of Dane county. The action was noticed for trial by the plaintiff at the April term, 1880, at which term the defendants moved for a change of venue, founding such motion upon an affidavit which showed that they were, when served with process, and had been for five years prior thereto, actual residents of Monroe county, and that they were temporarily in Dane county when the summons was served upon them.
It was insisted by the learned counsel for the respondent, that, under the decision in Couillard v. Johnson, 24 Wis., 533, the circuit court was authorized to inquire into the propriety of the change as respected the convenience of witnesses; but we cannot concur in that view. The language of the statute is clear and mandatory, and gave the defendants the absolute right to a change of the place of trial to the county where they resided. Besides, in this case, no issue had been joined, and it was premature and improper for the court to go into any inquiry as to whether the convenience of witnesses would or would not be promoted by retaining the cause, for trial in
It follows from these views that the order of the circuit court must be reversed, and the> cause remanded for further proceedings in accordance with this opinion.
By the Cov/rt.— So ordered. '