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70 Wis. 137

Smith v. Clarke

Wisconsin Supreme Court

Decided November 22, 1887

Wisconsin Supreme Court · decided 1887-11-22

AEPEAL from the Circuit Court for Marathon County. Action to recover commissions alleged to be due upon a sale of defendant’s real estate effected by the plaintiff. At a term of the court at which the cause had been noticed for trial the defendant applied for a change of venue, on account of the alleged prejudice of the judge, but the same was denied. The case being reached for trial was submitted to the jury upon the plaintiff’s evidence alone.

Cited by 2 later decisions — most recently June 1926

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1887-11-22

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Cassoday, J.

¶1The 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, nam*138ing 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.

¶2By the Court.— The judgment of the circuit court is affirmed.

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