Fraser v. Fargo

116 N.W. 3, 135 Wis. 401, 1908 Wisc. LEXIS 152

• Court: Wisconsin Supreme Court
• Decided: April 17, 1908
• Status: Published

Opinions

Basotoed, J.

This is an appeal from an order denying the application of the appellants to change the place of trial on the ground of the prejudice of the presiding judge. Since the enactment of ch. 212, Laws of 1895, such orders have been uniformly held to he not appealable. Evans v. Curtiss, 98 Wis. 97, 73 N. W. 432; Waukesha Co. A. Soc. v. Wis. Cent. R. Co. 117 Wis. 539, 94 N. W. 289.

It is urged on behalf of the appellants that the order appealed from is subject to review here, because it practically determines the action and prevents a judgment from which an appeal may be taken, within the provisions of sec. 3069, Stats. (1898). The basis for this contention is the reason assigned by the presiding judge for denying the application, namely, that the court had no jurisdiction of the person of the proponent nor of the subject matter of the litigation. It is sufficient to say that the presiding judge, after the affidavit of prejudice was filed, was not competent to determine the question of jurisdiction. This statement in the order, is not conclusive, as the court did not direct that the appeal be dismissed. The cause is still pending in the circuit court, subject to such further order as may be made therein. The effect of the application for a change of venue is to deprive the presiding judge of further power, except to carry out the statutory provisions on the subject; that is, to make a proper order calling in another judge or to remove the cause to another jurisdiction. Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177; Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52.

This court holds that the order appealed from is simply an order denying a change of venue, which is not appealable.

By the Court. — The appeal is dismissed.