Smith v. Clarke

35 N.W. 318, 70 Wis. 137, 1887 Wisc. LEXIS 19

• Court: Wisconsin Supreme Court
• Decided: November 22, 1887
• Status: Published

Opinion

Cassoday, J.

The only error assigned is the refusal to change the venue. The right to such peremptory change of the place of trial can only be acquired by the applicant filing an affidavit to the effect “ 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.” Sec. 2625, R. S. Here the affidavit merely states that the applicant “has reason to fear, and does fear, that he cannot have a fair and impartial trial, ... on account of the prejudice of” the judge, naming him. We are not aware of any decision of this court holding the two expressions to be equivalent. To our minds they are substantially unlike. To hold them to be equivalent by refining upon the words of each would be to establish a rule which would call for another departure whenever some new form of expression should be presented. The statutory requirement is jurisdictional. In such a case, the substitution of equivalents to be ascertained by such finical reasoning would be dangerous.

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