Bachmann v. City of Milwaukee

47 Wis. 435

Opinion

Ryan, C. J.

The affidavit to change the venue in each of these cases follows the statute, could not properly do otherwise, and is sufficient. The venue is to be changed, not upon the fact of the judge’s prejudice, but upon the imputation of it. Van Slyke v. Ins. Co., 39 Wis., 390. And the statute, as it now stands, appeals to the conscience of the party for a reasonable apprehension, not for the truth of the fact on which the apprehension rests. It goes upon a statement of belief, not of fact, save in so far as belief may be a fact; upon assertion that the party has reason to believe and does believe that he cannot receive a fair trial on account of the judge’s prejudice, not upon averment of the prejudice itself. Carpenter v. Shepardson, 48 Wis., 406.

It may be that perjury could not be well assigned on the affidavit. If so, the fault is in the statute, not in the affidavit which the statute prescribes. Certainly, an assignment of perjury could not be laid upon traverse of the fact of prejudice; and the brief of the learned counsel for the appellant is rather a criticism on the statute, than an argument of the insufficiency of the statutory affidavit to support the change of venue. „

By the Court. — The order appealed from in each of these cases is affirmed.