Swineford v. Pomeroy

16 Wis. 553

• Court: Wisconsin Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

By the Court,

Cole, J.

The objection taken, that there was no complaint in this case, either in the justice’s or county court, cannot prevail. The action was commenced before a justice, and appealed to the county court. In bis return, the justice states that the plaintiff presented two promissory notes, which are particularly described in dates and amounts. The defendants failed to appear before the justice and defend the suit. After judgment they took an appeal to the county court, and filed an answer stating their counter-claims. No objection was taken to the informality of the complaint, and the parties undoubtedly well understood that the plaintiff relied upon the notes as bis cause of action. Parties frequently file a note, or a copy of an account in justices’ court, for their complaint where no written pleadings are made up. The note or account becomes the complaint, and in substance states the cause of action. This has been held to be sufficient, when no objection is taken. Great liberality is exercised in construing pleadings in justice’s court, and they are invariably sustained when they are good in substance, and are not objected to because not technically formal or correct. It was in the power of the defendants to have required a written complaint in the county court, if they were in doubt what really constituted the plaintiff’s cause of action. But they were probably not in the dark upon that point, as their full answer shows. It is 'qu ite too late now, to insist that there was no formal complaint filed 2 Wis., 34, 102; 3 id., 270: 3 id., 580; 9 id., 234; 10 id., 117; sec. 45, et seq., ch. 120, R. S. This cause was tried in the county court before a jury. The plaintiff read the notes in evidence, and rested. The other side then entered upon their defense and, after considerable testimony had been given, applied for a change of venue, on account of the prej udice of the judge. The application was denied ; and, as we think, very justly. It is true the statute provides that whenever a party in a civil action, pending in a court of record, shall apply for a change of the place of trial, on account of the prejudice of the judge, and shall verify the application by oath or affidavit, the court shall change the place of trial. Sec. 8, cb. 123, E. S. This, statute must have a rational' construction. It is not to be supposed, that it was intended to grant to a party the right to change the place of trial after a jury is empan-neled and testimony has been given in the cause. Such an idea is not to be entertained, except upon the clearest evidence that this is the express meaning and intention of the statute. Otherwise a person whose moral sensibilities were not very acute and nice, might, after entering upon the trial of the cause, because the judge ruled contrary to his expectations or unfavorably to him, apply for a change of the place of trial, and obtain it. This practice, of course, would frequently be attended with the greatest inconvenience and injustice. But we are decidedly of the opinion that the statute was never intended to apply to such a case, or grant any such right, at that stage of the cause. When a party makes a seasonable and proper application for a change of the place of trial, because of the prejudice of the judge before whom the suit is pending, he is entitled to the change. But this application should be made before a jury is called, and a. trial of the cause entered upon; otherwise the application will be too late. This, we are satisfied, is the proper construction of the statute, and that no other interpretation could be given it without producing much mischief.

The judgment of the county court is affirmed.