White v. Chicago, M. & St. P. Ry. Co.

| Supreme Court Of The Territory Of Dakota | Feb 4, 1889

Oakland, J.

This is an appeal from an order .made by the district court of Moody county, at the January term thereof, A. D. 1888, refusing to change the place of trial of said action. 'This action was instituted in the district court of Moody county prior to May, 1886, for the purpose of recovering damages of ‘the appellant resulting from a fire claimed to have been set out by appellant’s engine on October 10, 1885.

The first question to be disposed of is the objection of the respondent that the order appealed from is not appealable. Section 23, c. 20, Laws 1887, enumerates the court orders which may be carried to this court on appeal. Said section 23 contains “the exact language of section 10, e. 264, Laws Wis., enacted in 1860, being section 11, p. 1635, Tayl. St. Under the latter section the supreme court of Wisconsin held in the cases of Bank v. Tallman, 15 Wis. 101" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/newell-v-smith-6598640?utm_source=webapp" opinion_id="6598640">15 Wis. 101; Haas v. Weinhagen, 30 Wis. 326" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/haas-v-weinhagen-6600959?utm_source=webapp" opinion_id="6600959">30 Wis. 326; and Schattschneider v. Johnson, 39 Wis. 387" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/schattschneider-v-johnson-6601990?utm_source=webapp" opinion_id="6601990">39 Wis. 387, — that an order similar to the one appealed from in this case was appealable. The court ■of Appeals of New York also, in the case of Leland v. Hathorn, 42 N.Y. 547" court="NY" date_filed="1870-07-01" href="https://app.midpage.ai/document/leland-v-hathorn-5477891?utm_source=webapp" opinion_id="5477891">42 N. Y. 547, decided that an order refusing to change the place ■of trial was appealable. The opinion in the latter case gives ■no reason why such an order is appealable, but it is to be observed that the statute of New York at the time Leland v. Hathorn was decided was the same as the statute upon which the •decisions in Wisconsin are based. The decision in Schattschneider v. Johnson, 39 Wis. 387" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/schattschneider-v-johnson-6601990?utm_source=webapp" opinion_id="6601990">39 Wis. 387, is based upon the authority of Haas y. Weinhagen, 30 Wis. 326" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/haas-v-weinhagen-6600959?utm_source=webapp" opinion_id="6600959">30 Wis. 326. In the latter case the court decided that an order changing the place of trial was appealable either under section 11, above referred to, or section 6, p. 1632, Tayl. St., which latter section provides that upon an appeal from a judgment the supreme court may review any intermediate order involving the merits, and necessarily affecting the judgment. A similar provision is found in our law in section 24, c. 20, Laws 1887. In Bank v. Tallman, supra, the court decided that an order refusing to change the place of trial was appealable upon the grounds stated in the opinion of Justice Cole in the case of Oatman v. Bond, 15 Wis. 23. In the case last mentioned the court held that an order made in an action to foreclose a mort.gage, directing that the action be referred to a certain person to take all the testimony to be taken in that state, which either party might desire to use on the trial, was appealable under the fourth clause of section 10, c. 264, Laws Wis. 1860, being the same as the fourth clause of section 11, c. 139, Tayl. St., and the fourth clause of section 23, c. 20, Laws Dak. 1887, for the reason that it deprived the party of a right granted him by the constitution of Wisconsin, viz., to have his witnesses examined in open court, and therefore the order was one which involved the merits of the action. In the case of St. John v. West, 4 How. Pr. 329" court="N.Y. Sup. Ct." date_filed="1850-03-15" href="https://app.midpage.ai/document/st-john-v-west-5467592?utm_source=webapp" opinion_id="5467592">4 How. Pr. 329, Justice SeldeN held that an order denying an application to substitute certain parties as plaintiffs in the place of the original plaintiff, who had deceased since the commencement of the action, was appealable. The judge said that the statute gave to the personal representatives of the deceased the right to come in and continue the action, and therefore an order denying it involved the merits of the action. In Cram v. Bradford, 4 Abb. Pr. 193" court="N.Y. Sup. Ct." date_filed="1857-01-15" href="https://app.midpage.ai/document/cram-v-bradford-5455606?utm_source=webapp" opinion_id="5455606">4 Abb. Pr. 193, it was held that an order which directed a reference in a case in which a reference was not authorized by law was an order involving the merits, and appealable. Justice Cole in Oatman v. Bond, supra, said: “The ‘ merits ’ of an action do not relate to the moral and abstract rights of the case, without reference to the constitution of judicial tribunals, or their mode of investigating facts, or their well-established rules of practice. ” It will thus be seen that the jurisdictions in which sections 23, 24, c. 20, Laws 1887, have been in force, and from which we may be said to have borrowed them, have construed the fourth clause of said section 23 as permitting an appeal from an order similar to the one herein appealed from, for the reason that “it involves the merits of the action, or some part thereof.” They have also construed said section 24 as permitting an order similar to the one herein appealed from to be reviewed on appeal from final judgment, for the reason that it “involved the merits of the action.” It necessarily follows that the legislature of Dakota territory, having adopted said sections from other jurisdictions, has also adopted the construction put upon the same by the appellate court of those jurisdictions, and, this being so, we must hold that the order appealed from in this action is appeal-able. We think this position to be correct, both upon principle and authority. The right to have the rights of a party passed upon by an impartial and unprejudiced tribunal is fundamental, and guarantied by the law of the land, and an order which would affect this right, as an order refusing to change the place of trial might, would certainly, under the most strict construction, involve the merits of the action.

We now come to the question as to whether the court erred in refusing to change the place of trial. There were some 26 similar cases besides this one pending against this appellant at the June term of the Moody county district court, in all of which cases a similar motion was made to change the place of trial. In one case the place of trial was changed upon the same showing as made in this action. This case, and all others of a similar nature, were continued from time to time until the January term of said court, in 18S8, at which term the motion in this case was taken up, and after argument denied. The motion was made for the reason that the appellant had good- reason to believe that an impartial trial could not be had in the county of Moody in consequence of a very strong and prevalent feeling among the citizens thereof in favor of respondent, and against appellant. In support of said motion the affidavits of John A. Hinsey, John W. Carey, Roger Brennan, and A. W. Tennant, claim agents and attorneys of the appellant, were read. Opposed to these were the affidavits of over 200 farmers and business men of Moody county, denying the existence of any prejudice against the appellant among the citizens of said county. We have examined the affidavits in the record, and in the face of the proposition that the decision of this motion rested in the sound legal discretion of the district court, and that nothing short of an abuse of such discretion will justify us in interfering, we cannot say, in the present case, there was an abuse of discretion. The district judge may have been influenced by his personal knowledge and observation, to which he had a right to resort. Schattschneider v. Johnson, supra; Jackson Will Case, 27 Wis. 409" court="Wis." date_filed="1871-01-15" href="https://app.midpage.ai/document/jackman-will-case-6600615?utm_source=webapp" opinion_id="6600615">27 Wis. 409; Lego v. Shaw, 38 Wis. 401" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/lego-v-shaw-6601881?utm_source=webapp" opinion_id="6601881">38 Wis. 401. The fact that in June, 1886, the district court granted a change of venue in a similar case, upon the same grounds as were urged in support of this motion, cannot have much influence in the decision of this appeal, as the lapse of a year and a half might have rendered it unnecessary to have granted the motion in this action. The district judge was in a position at the hearing of the motion in January, 1888, to ascertain largely for himself whether the feeling which existed in June, 1886, still remained. If at the same term the place of trial was granted in one case the district court had refused to grant the change in this case, that circumstance would be strong evidence of abuse of discretion. Order denying motion affirmed.