#### State ex rel. Milwaukee Electric Railway & Light Company vs. Circuit Court for Rock County.

December *18, 1907*

January *8, 1908.*

Mandamus *to circuit court: Superintending control: When exercised.*

On an application to compel by *mandamus*a circuit judge to change the venue of an action it is *held*that the superintending control of the supreme court over inferior courts will not be extended to determine whether a circuit judge should do what he has refused to do, when the error claimed to have been committed is reviewable on appeal from the order entered in the matter, or from a final determination of the action or proceeding in which it is made, and the refusal does not deny a clear statutory right, but involves the determination of questions of law or fact, or both, of such difficulty that a judge might reasonably, proceeding considerately, commit judicial error.

Mandamus to the Circuit Court for Eock County.

*Dismissed.*

*Mandamus*action to. compel the circuit judge for Eock county to change the venue of an action commenced in such court against the relator and the Chicago, Milwaukee & St. Paul Eailway Company to Milwaukee county.

Winifred Eifield, plaintiff in the action, having been injured in the city of Milwaukee, Wisconsin, under such circumstances, as alleged in her complaint, as to render both the relator, an electric railway corporation having its principal office and place of business in said city, and the Chicago, Milwaukee & St. Paul Eailway Company, a railway corporation having part of its system in Eock county, Wisconsin, liable for her damages, on the 15th day of February, 1907, as was claimed, made an efficient attempt to commence an action in such county against such corporation for redress. The relator insisted that proper service was not made to obtain jurisdiction as to it and, there being some doubt in respect to the matter, a second service, which is not questioned as to its *302sufficiency, was made March. 8, 1907. March 18th thereafter the relator appeared, specifying that such appearance had reference only to the service of March 8, 1907, and demanded a change of the place of trial to Milwaukee county, because of its being a corporation of the class mentioned in subd. 5, sec. 2619, Stats. (1898), and at the same time duly served a consent by its codefendant to such change. Plaintiff having failed to consent thereto, thp relator duly moved the court for such change, supplementing papers previously served by proof of its being a corporation of the class mentioned in the subdivision aforesaid. The eodefendant joined in such motion. . The application was denied, whereupon the alternative writ of *mandamus*was sued out on a relation setting forth so far as necessary the facts aforesaid with others.

In previous proceedings to compel said circuit court to set aside the service of February 15, 1907, the application failed by the final adjudication in this court, because of there being but one action and, as the second service was conceded to be good, of its not being material whether the first one was or not. No adjudication was made as to whether such first service was efficient.

The circuit judge made return to the alternative writ, among other things, to this effect: It was not decided in the proceedings to set aside the service of February 15, 1907, that the relator had waived any defect in such service. The demand for a change, of venue served, together with the consent of the Chicago, Milwaukee & St. Paul Railway Company, was retained by plaintiff’s attorney. Proof of service of the summons made February 15, 1907, which is in due form, is the only service shown by the record, or which has been submitted to respondent, although a subsequent service was referred to on the argument. It was decided by the circuit court for Rock county, April 10, 1907, that the service of February 15, 1907, was sufficient, and the order in that *303regard bas not been modified or set aside. It is not true, as alleged in tbe relation, that no objection was made by plaintiff that tbe demand for a change of venue was not timely. Eespondent determined, in denying tbe motion for a change of venue, that tbe service of February 15th aforesaid was good, and that tbe demand for a change of venue was not seasonably made; and further determined that tbe Chicago, Milwaukee & St. Paul Eailway Company was properly sued in Bock county; that such county was a proper one for trial of tbe action; that said railway company could not demand a change of venue to Milwaukee county, and that tbe action is indivisible, so that tbe relator, in any event, was not entitled to tbe change requested.

Tbe relator answered the return, putting in issue all matters stated therein inconsistent with those stated in tbe relation, particularly denying that tbe only proof of service brought to tbe attention of respondent was that as to tbe service of February 15, 1907, and that plaintiff made objection that tbe demand for a change of venue was not timely and that respondent determined in denying tbe application therefor that it was not made in time. Counsel for tbe relator duly moved tbe court on tbe proceedings aforesaid for a peremptory writ of *mandamus.*

*Clarke M.*Bosecrantz, for tbe relator.

For tbe respondent there was a brief by *Charles L. Fifield*and *Malcolm G. Jeffris,*and oral argument by *Mr. Fifield.*

Maeshaul,’ J.

Tbe important proposition to be met at tbe outset in this cause is: Ought tbe court, under tbe circumstances, to allow tbe use of its power of superintending control to test tbe question of whether relator was entitled to a change of venue, as requested ?

Counsel for both sides failed to argue tbe proposition mentioned. They seem to have taken for granted that it was passed upon at tbe time of granting tbe alternative writ, or *304was then deemed not to be open to serious controversy in tbe light of previous decisions. Tbe fact is, though undisclosed by anything' appearing in the record, it is true, that when the alternative writ was issued it was considered quite doubtful whether the court ought to take jurisdiction of the matter, but it was thought best to give the relator the benefit of the doubt, to the extent of allowing proceedings up to a point enabling counsel to aid the court, if they desired, by a full discussion of the initial question. As the matter stands, we must order a reargument or treat the question without aid of counsel, since their attitude in respect thereto does not relieve the court from its duty of deciding the matter, As the case has been already very much delayed by various motions and proceedings it seems that every reasonable effort should he made to prevent any further putting off a final determination.

While the jurisdiction of superintending control conferred upon the court by the constitution is very broad and, as said in *State ex rel. Fourth Nat. Bank v.*Johnson, 103 Wis. 591, 79 N. W. 1081, quoting from a decision elsewhere, it “is fettered by *no*restriction or limitation; it is as broad as the exigency of the case demands,” as therein indicated it should not be used except in such extreme cases as to render such course necessary to prevent a serious miscarriage or denial of justice and when there is no other remedy at all or none fairly adequate to the case.

In harmony with the foregoing the instances where the power of superintending control has been used during the history of this court are very few and do not include any situation precisely like the one in hand. The nearest approaches thereto are *State ex rel. Rowell v.*Dick, 125 Wis. 51, 103 N. W. 229, where the judge was disqualified by reason of having been concerned in the litigation as an attorney and application was.made for a change of venue on that ground under sec. 2623, Stats. (1898), which expressly *305entitled the applicant thereto, and *State ex rel. Schutz v. Williams, 127*Wis. 236, 106 N. W. 286, where an application was made for a change of venue on the ground of the prejudice of the judge before whom the case was brought for trial.

In both of the instances mentioned there was a clear want of jurisdiction of the circuit judge to act otherwise than bj granting the motion, for the change. Ho intricate question of law was involved. The statute expressly required the change to be granted. In neither case did it seem that there was any very good ground for denying the application or hesitating in that regard. The rule laid down by the two decisions should not be considered as going to the extent of holding that in every case, where a trial judge erroneously denies an application for a change of venue, he will be coerced in the matter by the superintending control of this court.

In this instance there was no clear statutory requirement for the change. A number of questions were involved in respect to each of which the trial court might well have hesitated as to the right thereof. There is the question of whether the demand for the change was seasonably made or not, depending on, in one phase of the matter, the effect of the first attempt to commence the action, and the undisturbed holding of the trial court in respect thereto. Then there is the question of whether an action brought in the proper'county for trial as to one defendant must necessarily be changed upon the application of the other to the proper county for trial as to the former if sued alone, upon its application, the code-fendant joining. There were questions, particularly those indicated, which were somewhat or entirely new and involved considerable difficulty.

In face of the situation indicated how can we well say that the trial judge acted in the face of and contrary to a clear legal right? There can hardly be such a right; one *306clearly within the cases referred to, where there are quite difficult questions of law or fact, or both, which must he solved, affording ample room for a trial judge, proceeding considerately, to commit judicial error in reaching a conclusion.

It is the opinion of the court that in such a situation as is here presented, as a rule, the power of superintending control should not he used to coerce the trial judge, hut that the alleged error should be left to be dealt with upon appeal from the final judgment in the action. ' If the errors could not be preserved for such review the case might be different. True, such errors, if allowed to remain uncorrected till review upon appeal from the final judgment,, might result in some prejudice to the parties litigant, but if that were un-qualifiedly sufficient to warrant the bringing of matters to this court under its power of superintending control, we should have a very frequent exercise thereof as is the case in some other jurisdictions, contrary to the settled policy of this court as indicated in *State ex rel. Fourth Nat. Bank v. Johnson,*103 Wis. 591, 79 N. W. 1081. Use of the jurisdiction invoked is not necessary here to prevent a failure of justice, as was the case in *State ex rel. Fourth Nat. Bank v.*Johnson, which was the real ground upon which such jurisdiction was there exercised and which was referred to as justifying it. There is no emergency in this case sufficient to justify such use.

Erom the foregoing we deduce this rule as governing the case: The superintending control of this court over inferior courts will not be extended to determine whether a circuit judge should do what he has refused to do where the error claimed to have been committed is reviewable on appeal from the order entered in the matter, or from a final determination of the action or proceeding in which it was made, and the refusal does not deny a dear statutory right, but involves the determination of questions of law or fact, or both, of *307such difficulty that a judge might reasonably, proceeding considerately, commit judicial error.

*JBy the Court.*— The proceedings are dismissed with costa to the respondent.