WILLIAM S. HUNGERFORD, Complainant and Appellee, vs. CALEB CUSHING et al., Defendants and Appellants, 2 Wis. 397

By the Oourt, Whitoh, G. J. This is an appeal from an order of the Circuit Court for Dane county, denying a motion for a change of venue in the case. The petitions which were filed in the court below, set out three causes for the change, viz: the prejudice of the judge; that the judge had been of counsel for the complainant, and that he was interested in the cause. In order to show clearly the nature of the various questions involved, it may be well to quote at length the statutes under which this application is made.

Section one, of

chapter ninety-five, of the Revised Statutes, is as follows : “ If either party in any civil cause, in law or equity, which may be pending in any court of record in this State, shall fear that he will not receive a fair trial in the county in which such cause is pending, on account that the judge is interested or prejudiced, or is related to, or shall have been of counsel for, either party, or that the adverse party has an undue influence over the minds of the inhabitants of the where the action is pending, or that the inhabitants of such county are prejudiced against the applicant, or that a large number of the inhabitants of such county have an interest in the question involved in said suit, adverse to the applicant, so that he cannot expect a fair trial, such party may apply to the court in term time, or to any judge in vacation, by petition, setting forth the cause of the application, and praying a change of venue, accompanied by an affidavit verifying the facts in the petition stated ; and such court or judg$. reasonable notice of the application having been given to the opposite party, o,r his attorney, shall, if satisfied of the truth of the allegations, award a change of venue to some county where the causes complained of do not exist; and in all cases where the judge is interested, or is related to, or has been of counsel for, either party, the court, in term time, may award a change of venue as aforesaid, in their discretion, without any application from either party” The legislature have made other provisions upon the subject, by

an act passed on 29th of March, 1853, the first

section of which is as follows: “ Whenever any person shall apply for a change of venue, of any cause pending in any court of record in this State, on account of the prejudice of the judge of said court, in the manner provided by the first

section of

chapter ninety-five of the Revised Statutes, it shall be the duty of the judge or court to which such application is made, to award such change of venue. Provided, that not more than one change of venue shall be awarded in a cause ; and this act shall not be [so] construed as to authorize a change of venue in any cause wherein a change of venue has been already awarded. And provided further, that in cases now pending in the courts of record in this State, wherein either party may have continued the case for one or more terms, a change of venue shall not be awarded in such case, otherwise than is provided in

chapter ninety-five of the Revised Statutes; but it shall be tried in the court where it is now pending, unless changed according to the provisions of said chapter.” The above are all the provisions of the statute bearing upon the subject.

The appellants claim, that by virtue of the act of the legislature last above recited, the judge had no discretion upon the subject, but was obliged to change the venue upon the filing of the petition and the affidavits, for the reason that this was a new suit, not pending when the act of the legislature was passed, and never had been continued by either party when application was made to change the venue.

It is admitted that the suit was pending between the complainant, and Cushing, one of the defendants, at the time of the passage of the act; but it is insisted, that by making Loring, administrator of Rantoul, Dexter, Harrington and Green, parties defendant since, then the suit, as to them, is a new one, and that they are entitled to have the venue changed by the mere filing of the petition and affidavit prescribed by the statute. It is somewhat difficult to give a satisfactory construction to the statute.

It would seem that in a chancery suit, where it is quite common to add new parties, as new interests are developed in the progress of the suit, and when the parties thus added frequently have interests hostile to those of all the previous parties, it would be proper to allow a party thus added, to change the venue, though it had been previously changed by one of the original parties. This however, cannot be done, according to the act of the legislature under consideration, unless the suit, by adding new parties, becomes a new one. ; .

But it is not necessary to decide this question, as the record of this case shows that Rantoul, (who is now represented by his administrator Loring,) and all the petitioners for the change of venue except Loring, were originally parties, that while they were thus parties, the suit was continued for a number of terms, and that the venue was twice changed.

It cannot .'be doubted that if the bill had never been dismissed as to these defendants, and Loring had taken the place of Rantoul, as his administrator, the venue could not have been changed by virtue of this act-It seems equally clear that the dismissal of the bill as to all the defendants except Cushing, and subsequently restoring them to the case, cannot have the effect to make the case a new one. As to all the petitioners except Loring, (who re- ■ presents Rantoul) the case is the same ; they do not now appear in the case as new parties.

It is apparent therefore, that the venue cannot be changed by virtue of this act. But the appellants contend that the judge erred in denying their motion, for the reason that the affidavits which they filed with their petition showed that he was prejudiced, that he was interested in the event of the suit, and that he had been of counsel for the complainant. The consideration of these questions makes an examination of the provisions of the Revised Statutes a^ove recited, necessary.

It has been contended, that when application is made to change the venue, on ao count of the prejudice of the judge, the fact to he established is the fear of the party that he will not receive a fair trial on account of such prejudice, and not the prejudice of the judge in fact. It will be seen, by a reference to the statute, that the prejudice of the judge is classed with the other facts, of the existence of some one of which the judge must be satisfied in order to justify him in changing the venue.

The phraseology of the act does not require that such a construction should be given to it; and it will hardly be contended that such a construction should be adopted except from necessity. The fears of the party, if unfounded and causeless, the result, perhaps, of false information, acting upon a credulous and timid mind, constitute no suitable reason for the action of a court or judge; and no enactment of the legislature should receive a construction which would compel a judicial investigation of such a subject, if one better adapted to secure the rights of the parties can with propriety be given to it.

The party applying for the change of venue must satisfy the court or judge that some one of the facts exists, or he is not entitled to the change. The question then recurs, did the petitioners furnish satisfactory proof to the court below, that the judge was prejudiced, or that he was interested, or that he had been of counsel for either party % The language of the statute is, “ and such court or judge, reasonable notice of the application having been given to the opposite party or his attorney, shall, if satisfied of the truth of the allegations, award a change of venue,” &c.

The evidence submitted by the party who applies for the change, should be in kind and degree, as would satisfy a reasonable and impartial mind ; regard being had to the nature of the fact to be proved.

It is insisted by the counsel for the complainant, that when application is made to a judge to change the venue, on account of his own prejudice, he must decide the question with reference to his consciousness alone, regardless of the proofs contained in the affidavits ; as, if the fact exists, he must be conscious of it; and no amount of extrinsic evidence ought to satisfy him of the existence of feelings within his own heart, which his own consciousness informs him have no place there.

By the term “prejudice,” as used in the statute, I do not understand an opinion formed beforehand upon the questions of law involved in a case; because the legislature cannot have intended to make an acquaintance with legal principles a disqualification to hear and determine causes. It must mean an opinion or judgment in regard to the case, formed beforehand, without examination, or a prepossession. It is apparent, that when an application is made to a judge to change the venue for this cause, he is obliged to pass upon the state of his own mind or feelings, in order to decide the question.

The statute does not allow him to change the venue, unless he is satisfied that the allegation contained in the petition is true. It may be asked, can he be satisfied that he is prejudiced in a case, when he does, not know either of the parties, or the subject matter of litigation between them ?

And yet, if the view of this subject taken by the appellants is to prevail, the judge, in such a case, should change the venue, if the facts contained in the affidavits are sufficient to satisfy a' reasonable mind that the prejudice exists. °^er words, lie should decide a question in regard the condition of his own mind and feelings by extrinsic testimony, regardless of their actual condition, as determined by his own consciousness.

A scene cannot well be imagined, which would be more disgraceful to a court, or better calculated to bring contempt and ridicule upon it, than a trial of such a question, conducted upon the principles contended for by the appellants.

If the testimony contained in the affidavits of the parties is to prevail, regardless of the actual feelings of the judge, his private and social relations, his friendships, his animosities, real or supposed, expressions which he may have made heedlessly in relation to the parties, or some one of them, his private conversation, and the interests of his friends, all would be made the subjects of judicial investigation before himself, and any opinion which he might form upon such testimony, would be subject to review in this court. Thij view of the matter is not sustained by the authorities.

No statute similar to the one under consideration has been passed by the legislature of any other State, and no decisions of other courts can be formed which throw light upon this question. The cases of Clarke vs. The People, 1 Scam. 617; McGoon vs. Little, 2 Gill. 42; 5 Blackf. 122; were decided under a statute entirely different from ours, as the judge had no discretion when the affidavit for the change of venue was made, and was in conformity to the statute.

But this court has in effect decided in a case not reported, that no appeal would lie from an order of a circuit judge refusing a change of venue, when the application was made for the alleged reason that the judge was prejudiced. The question was decided on an application for a mandamus to compel the judge of the Second Circuit to change the venue. in a case fox that reason.

I shall follow tnat decision It is apparent that no appeal will lie in a case where the appellate court cannot look at the testimony upon which the coui't helow decided the question, and if the views above expressed upon that subject are correct, this is precisely such a case. But the appellants contend that the affidavits show that the judge is interested, and his interest is attempted to be shown by the admissions or statements made by his counsel when he was on trial before the court of impeachment.

It appears that one or more ■ of the charges made against the judge, grew out of his conduct in relation to this case, and it is shown in one of the affidavits, that one of his counsel, in his argument before the court, insisted that Cushing, one of the defendants, had violated the trust declared in the trust deed, which is one of the matters in controversy in this suit. This statement or admission of the counsel, the appellant’s claim, must be considered as the personal admission of the judge, and shows that he is interested, in the sense in which that term is used in the statute.

The only reason urged in support of this conclusion, is, that he has a strong motive for sustaining, in his decision of the case, the view of the question taken by his counsel before the court of impeachment. .Without attempting to decide how far the statements of counsel, made under such circumstances, ought to be relied on to show the interest of the judge, it is sufficient to observe, that the interest of the judge which constitutes a reason for changing the venue must be a pecuniary interest, and ^at ^e admission of liis counsel does not tend to show any such interest.

The remaining cause set forth in the petition for a change of venue is, that the judge had been of counsel for the complainant in a matter embraced in the pleadings in this case. To maintain this allegation, the appellants rely on an admission made by him in the course of his trial before the court of impeachment.

This admission is to the effect that he was retained by the complainant to examine the points raised on a motion which had been argued, to quash an indictment which had been found agaiust him in the District Court of the United States for perjury, and to assist at another argument of the motion ; that the motion was not argued after he was retained, and that he was paid by the complainant the sum of fifty dollars for his services.

It appears, from the affidavits accompanying the petition, that the perjury charged upon the complainant was alleged to have been committed by him in swearing to an affidavit before the register of the Chippewa Land District, which set forth that he had entered upon certain land, (the same which constitutes one of the subjects of litigation in this suit,) in his own right, and exclusively for his own use and benefit; and that he had not directly or indirectly made any agreement or contract with any person or persons by which the title he might acquire from government would enure to the use or benefit of any other person or persons at any time thereafter.

It appears further, from the affidavits, that the indictment set forth, that before making the affidavit, the complainant alone and in conjunction with others had made and executed deeds to Caleb Cusbing, by wbicb sucb title would enure to tbe use and benefit of tbe latter, or of other persons.

Tbe appellants insist, that, as one of tbe objects of tbe bill in tbis case is, to procure tbe cancellation of tbe deed mentioned in tbe indictment, executed by tbe complainant and others to Cusbing, in wbicb certain trusts are declared in favor of various persons, because tbe trusts declared in tbe deed, have not been performed as they allege, and as tbe defendants insist that the trusts have been performed, tbe retainer wbicb tbe judge received from tbe complainant, establishes •the fact that be has been of counsel for him in tbis suit in tbe sense in wbicb that term is used in tbe statute.

It is contended by them, that tbe same subject is litigated in tbis suit, wbicb was in tbe prosecution for perjury, viz: tbe trust deed.

But without expressing any opinion as to tbe propriety of tbe conduct of the judge, in accepting tbe retainer, and engaging to assist at tbe argument of tbe motion to quash tbe indictment in tbe United States Court, when bis client bad an important cause pending in tbe court, over wbicb be presided, in wbicb tbe deed mentioned in tbe indictment was a subject of controversy, still, I do not see as he can be said to have been of counsel in' tbe sense in which that term is used in tbe statute.

If tbe same questions arose on tbe two cases, I should be of opinion that tbe appellants bad brought their case within tbe statute, although tbe retainer was not in tbis suit. But tbe questions in tbe two cases, though in some measure growing out of same transactions, are quite different.

The perjury was alleged to have-been committed by tbe complainant, in swearing that be bad not made any contract W w-kich the title -which he might acquire from government, would enure to the use of any person except himself, or to convey such title to any other person or persons at any time thereafter, whereas before swearing to the affidavit, he had made and executed to Cushing, one of the defendants in this suit, a deed by which such title would, enure to him or to other persons.

The important question of fact arising upon the indictment, was, whether such a deed had been made; The question here is, have the trusts which are declared in the deed, been fulfilled ? No question is made as to the execution of the deed; both parties admit its execution, and the defendants claim important rights under it. But it appears from the admission of the judge, that he was not retained to assist at the trial of the complainant, when this important question of fact, was to be determined, but was only to argue the questions of law arising upon the motion to quash the indictment.

This, perhaps, does not change the effect of the retainer, but it does not tend to show that he was retained to assist the complainant in any matter which is the subject of controversy in this suit. Upon the whole, I do not think that the statute can be extended to this case. It follows from the view I have taken of this matter, that the order of the Circuit Court must be affirmed.