Will of McCrory

71 Wis. 83 | Wis. | 1888

Tayloe, J.

The application to change the place of trial in this case was made under the provisions of sec. 2625, R. S. That section reads as follows: “The court shall change the place of trial of any action upon the application of any party thereto who shall file his affidavit that he has good reason to believe, and does believe, that he cannot have a fair trial of such action on account of the prejudice of the judge, naming him. . . . But one change of the place of trial shall be granted to the same side under the provisions of this section.” The right to a change of the place of trial is purely statutory, and is imperative on the court when the proper affidavit is presented by a proper party. Under that section, the only thing the party moving has to do is to allege, in the form prescribed, the prejudice of the presiding judge of the court, and when that is shown in the way prescribed the presiding judge has no discretion except to change the place of trial. The presiding judge has nothing to do in the case except to make an order changing the place of trial.

But it is urged that because sec. 2626 provides that “ when the place of trial shall be changed it shall be changed to some county where the causes complained of do" not exist,” if the party applying includes in the affidavit required to be made in order to obtain an order of removal, a further statement that some other judges in the state are also prejudiced, the court making the order is absolutely prohibited from changing the place of trial to any county where such other alleged prejudiced judges preside, and that the affidavit of the prejudice of the other judges is just as conclusive on the judge making the order as it is as to his own prejudice. This we think is clearly erroneous, and would extend the right to disqualify the judges of the courts to try actions on the ground of prejudice to an extent never contemplated by the statute. If the party applying to change the place of the trial, by his statements under oath that he believes other judges than the one before whom the action is pending are prejudiced, can disqualify such judges from trying his case, then he has the power to disqualify all the judges in the state, and no trial of the case could be had. Such a construction of the law would open the door for one having the hardihood to make the proper affidavit to prevent the case from trial in any court. A proceeding which might lead to such absurd results cannot be tolerated.

If the allegations in the affidavit for a change of venue of the prejudice of any other judge or judges have any place in the motion to change the place of trial, they can only be mentioned for the purpose of consideration by the court in directing the county to which the change shall be made, but they can have no conclusive effect upomthat question. We think, however, that under said sec. 2625 such allegations have no place in the affidavit upon which the motion is based; and if the party applyingfor the change thinks some other judge is prejudiced against him, he should bring that matter before the court in some other way, for the purpose of obtaining the order to change the place of trial to some place where such other supposed prejudiced judge does not preside. The statute, which makes it absolutely necessary for a court of record to order a change of the place of trial upon the mere affidavit of a party alleging prejudice, is of very doubtful propriety, aud the legislature has restricted it withiu pretty narrow limits; and it is neither the policy of courts or of the legislature to extend the right.

It is urged that this court in Northwestern Iron Co. v. Crane, 66 Wis. 561, is authority for the practice adopted in this case. The proceeding in that case for a change of the place of trial was taken under a special statute, regixlating the change of the place of trial from the county court of Dodge county. The statute regulating the change of venue in that court expressly provides that it shall be changed to the circuit court of the same county, “unless it shall appear that the circuit judge thereof is also prejudiced or disqualified in such action or proceeding; in which case the action shall be removed to some other court.” Under this section, this court held that as the statute did not absolutely require the county court to remove the case to the circuit court of the same county when it appeared that the circuit judge was prejudiced or disqualified, the affidavit of the party making the motion to change the place of trial of the prejudice of the circuit judge was conclusive in that case, and it was the duty of the county court to remove the case to some other court. Under the general statute under which the application in this case is made, there is no such provision as to the prejudice of any other judge ; and the direction in sec. 2626 that the place of trial shall be changed to some county where the causes complained of do not exist is general and applies to all the causes for a change of place of trial as well as for the one for prejudice. Whether the cause for which the change was made in this case existed in the county of Winnebago was a question to be determined by the circuit judge of Fond du Lac county; and we are not prepared to say that he erred in holding that it did not exist, simply because the appellant made affidavit that she believed it did exist. The mere belief in such case is not evidence of the fact, when such fact is to be established by proof. The fact that the statute declares that, for the purpose of a removal of the case from the court where the action is pending, such affidavit shall be conclusive, is no reason for holding that her belief shall be conclusive upon the question of the prejudice of all the other judges in the state.

We see no reason for charging the costs of this litigation to the estate of the deceased. The record does not disclose that there was any merit in the contest made by the appellant against the probate of the will of the deceased.

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