52 Wis. 482 | Wis. | 1881
The learned counsel for the appellants insists that the Monroe county circuit court had no jurisdiction of these actions, because no order had evei been made by the circuit court of Dane county, in which said actions were commenced, changing the place of trial in the actions and directing the transmission of the papers therein to the clerk of the circuit court of Monroe county. The contention of the learned counsel is, that no change in the place of trial of an action can be effected under the provisions of the Eevised Statutes except by an order of the circuit court, or presiding judge thereof, of the county in which the actions were commenced, as prescribed in section 2622, E. S. And it appearing that no such order had ever been made in either of said actions, and that no papers had been transmitted from the circuit.court of Dane county by the clerk thereof to the circuit court of Monroe county, as prescribed by section 2627 of said statutes, said actions still remained in the circuit court of Dane county, notwithstanding the written consent of the plaintiffs’attorney to such change of the place of trial. The learned counsel for the respondents contend that the written consent given by the attorney for the appellants changed the place of trial from Dane county to Monroe county, without any order of the court or of the judge thereof; that, after such consent given, such actions were for all purposes pending in Monroe county the same as though they had been originally commenced in such county.
Under the sixth subdivision of section 2619, E. S., the place
This section was clearly intended to relate to all binds of actions, and is applicable as well to actions which are local in their nature as to actions which are by statute made local by reason of the residence of the defendant or other cause; and rnader its provisions any action may, notwithstanding its local character, be tried in the county designated in the summons or complaint, unless the defendant causes the same to be changed in the manner pointed out in said section. The change made by the revision as well as by the code, in respect to the place of trial, is a radical one; and under its provisions no objection can now be taken either by pleading or on the trial that the action is not brought in the proper county.
The statute having directed that the action should be triable in a certain county, it is the right of the defendant to have it tried there unless the place of trial is changed for some good cause specified in the statute. This has been held by this court in several cases under similar statutes. Foster v. Bacon, 9 Wis., 345; State ex rel. v. McArthur, 13 Wis., 407; Craven v. Craven, 27 Wis., 418; Moe v. Moe, 39 Wis., 308. The right resting with the defendant, he may waive it; but when he does not do so, the statute has provided an easy and speedy method of getting the case into the proper county; and when the plaintiff refuses to put the place of trial in such county when requested, he is punished by inflicting a bill of costs for such refusal. We see no necessity of any order in case the place of trial is changed by consent. Usually such changefis made, as it was in these cases, before any papers are filed in any court, and consequently before any record is made. The filing of the papers in the proper clerk’s office, with the demand of the defendant and consent of the plaintiff, would be all the evidence necessary to show that the action was properly in that court; and if in any case any record has been made in the court of the county in which the action is commenced,
Section 2622, R. S., we think strongly confirms our construction that no order is necessary to effect a change of the place of trial when the plaintiff consents to such change upon demand of the defendant. This section provides that “the court, or the presiding judge thereof, may change the place of trial in the following cases: (1) When the county designated for that purpose in the complaint is not the proper county, and the defendant has moved within the time limited in the preceding section.” This provision clearly refers to a case where the plaintiff, upon demand of the defendant, has refused to consent to a change, and the defendant, within the twenty days after the time for serving such consent, moves the court to change the place of trial; and it does not require the order of the court in case consent be given. In such case there is no necessity for a motion on the part of the defendant. He has the plaintiff’s consent to the change, and the legislature has said that such consent “ shall change the place of trial accordingly,” or, in other words, without any further action by either party.
The place of trial having been duly changed in each case, the defendant, after issue joined, had the right to notice the same for trial in Monroe county, and place the same upon the calendar. That court had jurisdiction of the actions, and there was no more reason for striking the same from the cal
Neither the filing of the summons nor of the pleadings is necessary to give the court jurisdiction of the action. See sections 2629, 2632, 2664, R.S. The notice of trial by the defendant and filing notice of issue were regular (section 2845, R. S.), and consequently the actions were properly on the calendar. The motion of the plaintiff to strike them off was properly denied.
By the Court. — The order of the circuit court in each case is affirmed.