#### The State ex rel. Rowell and others vs. Dick Circuit Judge.

*April 5*

May 2, *1905.*

"Mandamus: *Disqualification of judge: Parties: Change of venue: Who may malee application.*

1. Ruder sec. 2623, Stats. 1898 (providing that, whenever the judge has been of counsel for either party, the court or presiding judge thereof shall upon application, and may without application, change the place of trial of such action or call in another judge in the manner prescribed in sec. 2625), a group of defendants having interests in common in the issues involved, hostile to . codefendants whose interests are common with the plaintiff, may be regarded as a party within the calls of that section, and may make an application for a change of venue on the ground that the trial judge has acted as counsel for plaintiff.

"2. "Under sec. 2579, Stats. 1898 (providing that in case any judge of any court of record shall be interested in any action or proceeding in such court, or shall have acted as attorney or counsel for either of the parties thereto, such judge shall not have power to hear and determine such action or proceeding or make any order therein, except with the consent of the parties thereto), a circuit judge who acted as attorney for the plaintiffs in an action is disqualified to try a subsequent action brought by one of the plaintiffs in the former action, involving in part the same cause of action, and to which some of the former defendants were made parties, although the former suit was dismissed, and the judge never advised or counseled as to the matters presented in the later action, “and could not, as such facts accrued after the former action.”

Mandamus to James J. Dick, judge of tbe circuit-court for Dodge county.

*Peremptory writ granted.*

Tbis is an original application to tbis court to change tbe venue in tbe action herein mentioned. It appears from tbe return to tbe alternative writ of *mandamus*that on or about November 1, 1895, *James J.*Dick, as attorney for tbe plaintiffs, commenced an action in the circuit court for Dodge •county, wherein John S. Rowell and Mary Rowell, bis wife, were plaintiffs, and Samuel W. Rowell and bis wife, Tbeo-*52dore B. Kowell and Ms wife, *Mary 1. Rowell, J ennie B. Row-ell, Walden T. Rowell, Edla E. Rowell,*and *Clarence I. Row-ell*were defendants. Tbe complaint in tbat action was verified by John S. Rowell, and tbe same was for tbe partition of ten lots of land therein described according to tbe respective rights of tbe several parties interested therein as therein stated, and for the sale thereof if it should appear that a partition of said premises could not be made without great prejudice to the owners thereof, and a division of the proceeds upon such sale be made according to their respective rights, and for such other and further relief as should be just and equitable. Pending that case *Mr. Diclc*became judge of the circuit court for Dodge county. Subsequently, on December 31, 1898, an action was commenced in that court for mismanagement and accounting. See *Rowell v. Rowell,*122 Wis. 1; 99 N. W. 473. While that action was still pending in the circuit court for Dodge county, and on January 9, 1899, Judge Dice made an order changing the venue in that case, and recited therein, in effect, among other things, that the court, having examined the complaint in said action, finds that it has reference to matters in which he has in some relation more or less been engaged as counsel prior to his election as judge of said court, and that during the period of time covered by the complaint he was the private attorney at some time of John S. Rowell, and also was attorney and counsel for Ira Rowell, deceased, the father of the plaintiffs *Jennie B. Beichl, Walden T. Rowell, Edla Rowell,*and *Clarence I. Rowell,*and Mary Rowell, being the widow of said Ira Rowell, deceased, and that during such time he was also the attorney of John S. Rowell & Co., composed of John S. Rowell and Ira Rowell, since deceased, and that he was also attorney for the John S. Rowell Sons & Co., and was also attorney for the John S. Rowell Manufacturing Company, and knows more or less concerning the matters referred to in such complaint, and has acted as coun*53sel in such matters to some extent at least; and that therefore it would be highly improper for the judge of said court to entertain such proceedings, as above stated. And therefore the said Judge Dice, of his own motion, ordered and determined, and it was thereby ordered and determined by that court, that that action be sent for trial to the circuit court for Winnebago county, and the clerk was thereby instructed to transmit the record to that court for further proceedings according to law. July 29, 1904, upon the verified petition of John S. Eowell, the circuit court for Dodge county, Jambs J. Dice presiding as circuit judge, entered an order wherein and whereby it was ordered and ■adjudged that said action so commenced November 1, 1895, be and the same was thereby discontinued, with leave and without prejudice to the said John S. Eowell to commence another action for partition of the lands mentioned and described in the complaint in that action. The next day, and on July 30, 1904, an action was commenced in the circuit court for Dodge county on a complaint verified by John S. Eowell, wherein John S. Eowell was plaintiff and *Mary I. Rowell, Jennie B. Beichl, Edward A. Beichl,*her husband, *Walden T. Rowell, Edla Rowell, Mary I. Rowell*as general guardian of *Clarence I. Rowell, Clarence I. Rowell,*and the John S. Eowell Manufacturing Company were defendants, praying for the partition of the premises therein described according to the respective rights and interests of the parties therein alleged, and for the sale thereof if it should Appear that the partition could not be made without great prejudice to the owners thereof, and the proceeds of the sale divided among the parties according to their respective rights and interests, and for general relief. The lands therein described are the same as in the complaint of November 1, 1895, except that outlot No. Y3, therein mentioned, is omitted, and lot 11 is omitted, except that the buildings thereon are included. In the action so commenced July 30, 1904, *54the defendant tbe John S. Eowell Manufacturing Company put in an answer, verified September 14, 1904, and in said answer claimed title to tbe warehouse on lot 11, of tbe value of $537.06, tbe building on lot 4 in block A, of the value of $575.66, and certain buildings and machinery on other portions of tbe property. Tbe other defendants in that action put in an answer verified September 3, 1904, taking issue with certain allegations of tbe complaint, and, among other things, asking judgment that the wife of John S. Eowell and Samuel Eowell and his wife, and Theodore B. Eowell and his wife, be brought in as parties defendant in the said action, and that the premises including lot 11, covered by said buildings, be sold at public sale, and that the defendants be permitted to bid at such sale, and to pay into court three fourths of the amount they so bid, and for general relief. September 26, 1904, the defendants in that action, except-the John S. Eowell Manufacturing Company, also replied to the answer of the John S. Eowell Manufacturing Company by way of certain admissions and denials. An application duly verified by Mary I. Eowell September 26, 1904, was made to the circuit court for Dodge county on behalf of all the defendants except the John S. Eowell Manufacturing Company for the change of the venue in said action. Upon hearing such application the said Jakes J. Digs, as circuit judge, on October 3, 1904, denied such application, and filed therein a written opinion, found in his return to the writ. Thereupon the attorneys for the applicants refused to proceed with the action before the Honorable Jakes J. Dice as such presiding judge. The relator demurred to such return.

For the relators there was a brief by *Malone &*Miller, attorneys, and *Timlin &*Glicksman, of counsel, and oral argument by *Nathan Glickéman.*

*8. W. Lamoreux*and *M. E.*Burke, for the respondent.

fNo brief on file.]

*55Cassoday, C. J.

In denying tbe application to change tbe venue tbe learned trial judge filed a written opinion, wbicb was presented on tbe application for tbe writ and also embodied in tbe return to tbe writ. Tbe principal ground for refusing tbe application is that it was not made by tbe plaintiff in tbe action commenced July 30, 1904, nor by all tbe defendants in that action; and bence was not authorized by tbe statute, wbicb, among other things, declares, in effect, that:

> “Whenever tbe judge . . . has been of counsel for either party, tbe court or tbe presiding judge thereof shall, upon application of either party, and may without such application, change tbe place of trial of such action or call in another judge in tbe manner prescribed in section 2625.” Stats. 1898, sec. 2623.

Tbe learned trial judge claims that under these sections tbe rule of law is tbe same as where an application is made for a change of venue on tbe ground of tbe prejudice of tbe judge, and “must be made by all tbe plaintiffs or all of tbe defendants, as tbe case may be, although tbe affidavit may be made by one of tbe parties for and on behalf of all tbe others.” This court has so held in straight actions at law. *Rupp v. Swineford,*40 Wis. 28; *Zeller v. Martin,*84 Wis. 4, 6, 7, 54 N. W. 330; *Holm, v. Colman,*89 Wis. 233, 61 N. W. 767. But these cases recognize as well-established exceptions to such rule that:

> “Where tbe interests of some of the defendants are in accord with those of tbe plaintiffs, or otherwise hostile to those of their codefendants, it seems that tbe statute should not be construed to require such defendants to join with their code-fendants in such an application to make it effectual. Merely formal parties defendant, also, or those having no real interest in tbe subject matter of tbe suit, should not be allowed to defeat such an application made by tbe other defendants. Such application, made by defendants who have appeared in tbe action, should not be denied because not joined in by one who has not appeared, but has made default.” *Wolcott v.**56*Wolcott,*32 Wis. 63. See *State ex rel. Cuppel v. Milwaukee Chamb. of Com.*47 Wis. 670, 3 N. W. 760; *Hewitt v. Follett,*51 Wis. 264, 271, 8 N. W. 177; *Eldred v. Becker,*60 Wis. 48, 51, 52, 18 N. W. 720.

In tbe case at bar tbe application, for tbe change of venue was made by tbe widow of Ira Eowell, wbo died July 19, 1886, and tbeir four children, and tbe husband of one of them, claiming an interest in the undivided one-fourth of tbe premises. -They constituted a group of defendants having interests in common in tbe premises sought to be partitioned, and may well be regarded as a party within the meaning of the section of the statutes quoted. *Hundhausen v.*Atkins, 36 Wis. 518. The only other parties to the action at the time of such refusal to change the venue were the plaintiff, John S. Eowell, and the defendant, the John S. Eowell Manufacturing Company; and they both objected to such change. The manufacturing company held a lease of the premises, executed by John S. Eowell, on the undivided three-fourths of the premises-, and thereunder claimed tbe exclusive right to certain buildings and machinery on certain portions of the premises. Their interests were in accord as to the lots without such buildings,' and, as a large stockholder in the corporation, John S. Eowell had a common interest in such buildings with the corporation. It is to be observed that the application for the change of venue was not made on the ground that the trial judge was prejudiced “on a matter of law” or “on the facts,” but on the ground that he had “acted as attorney or counsel” for one of the parties in the action. It is admitted that the summons and complaint in the action commenced November 1, 1895, were both signed by *“James J. Dick,*Plaintiff’s Attorney.” John S. Eowell and wife were plaintiffs in that action, which was for the partition of the ten lots of land therein described; and the same was against *Mary I. Rowell*and her four children, and two sons of John S. Eowell and their *57wives, upon each and all of wbom tbe summons and complaint were served. No further proceedings were bad therein until July 29, 1904, except that tbe further prosecution thereof was enjoined in *Rowell v.*Rowell, 122 Wis. 1, 99 N. W. 473, and in that case the learned trial judge on his own motion, January 9, 1899, entered an order changing the venue on the ground, as stated therein, that he had been engaged as counsel prior to his election as judge; that during the time covered by the complaint therein he had been the private attorney of John S. Rowell, and attorney and counsel for Ira Rowell, deceased, and the John S. Row-ell Manufacturing Company, and also John S. Rowell Sons & Co., and acted as counsel in the matters referred to in the complaint in that action. July 29, 1904, James J. Dice, as such circuit judge, made an order in the action so commenced by him as attorney November 1, 1895, reciting that on reading and filing the affidavit of John S. Rowell praying for an order discontinuing that action “without prejudice and with leave to said John S. Rowell to commence another action,” whereby it was ordered and adjudged that said action be and the same was thereby “discontinued with leave of the said John S. Rowell to commence another action for partition of the lands mentioned and described in the complaint.” The next day the action in question for the partition of all of the same lands, except two of the lots without the buildings, but including the buildings on one of those lots, was commenced by John S. Rowell alone as plaintiff, his wife in the meantime having died, against the widow of Ira Rowell and their four children and the husband of one of them and the John S. Rowell Manufacturing Company, but omitted therefrom the two sons of John S. Rowell and their wives. The last action is for the partition of eight of the lots covered by the first action. No issue was joined in the first action. . It may be true, as stated by the learned trial judge, that he “never advised or counseled as to the *58matters now presented by said defendant corporation, and could not, as snob facts accrued after said former action.” But that is not the question under the section of the statute-here applicable. That section seems to have escaped the-attention of the learned trial judge. It declares that:

> “In case any judge of any court of record shall be interested in any action or proceeding in such court or shall have acted as attorney or counsel for either of the parties thereto-such judge shall not have power to hear and determine such action or proceeding or to make any order therein, except with the consent of'the parties thereto.” Sec. 2579, Stats. 1898.

This language is very broad. It is claimed on the part of the relator to be broad enough to disqualify any judge from hearing and determining any action or proceeding in case he had ever acted as attorney or counsel for either of the-parties thereto in any matter, however foreign to the action so to be determined. But such a construction would be-absurd and work great inconvenience. The manifest purpose-of the statute was to secure to litigants and the public an impartial judicial tribunal, free from any bias or temptation or ground of suspicion. It disqualified the judge, however, only in case he had acted as attorney or counsel for either of the parties to the action or proceeding in the matter so to be heard or determined. In this case the judge had acted as the attorney of record in the first action for partition. He was necessarily of counsel for John S. Howell and wife in respect to such partition. As judge, and on the application of his former client, he ordered the discontinuance of that action without prejudice to the bringing of another action for the partition of most of the same lands by John S. Howell. Such new action was commenced the next day. True, he did not appear as attorney of record in that action, and no one supposes he acted as counsel at the time of making that order, but he had previously acted as counsel for the surviving plaintiff, John S. Howell, as to such partition, which *59was tbe cause of action alleged in tbe complaint in botb actions. Sucb being tbe facts, tbe statute deprived bim of' “power to bear and determine sucb action or proceeding or-to make any order therein, except with tbe consent of the-parties thereto.” Tbe same conclusion has been reached in other states under similar statutes. Thus, in California it has been held that:

> “A change of tbe place of trial may be bad on tbe ground that tbe judge of tbe court in which tbe action was brought bad received a general retainer from one of tbe parties.” *Kern Valley W. Co. v. McCord,*70 Cal. 646, 11 Pac. 798.

So in Michigan it has been held that a circuit judge was-disqualified to sit in a case by reason of bis having been counseled regarding tbe subject matter of tbe suit. *Curtis v. Wilcox,*74 Mich. 69, 41 N. W. 863. See *Horton v. Howard,*79 Mich. 642, 44 N. W. 1112; *Joyce v. Whitney,*57 Ind. 550. This court has never been called upon to consider tbe precise question here presented, but it has determined a question quite analogous and one involving tbe same principle, arising under tbe next section of tbe statute, which declares, in effect, that no justice of this court “shall decide- or take part in tbe decision of any cause or matter which shall have been determined by bim, while sitting as a judge of any other court.” See. 2580,- Stats. 1898. In a case-where a justice of this court was disqualified by that statute from participating in tbe decision of tbe same by reason of having previously determined the cause or matter at the-circuity it was held that tbe judgment of this court in which be so participated was *“coram non judice*and void,” notwithstanding be was only one of tbe five justices so deciding the-cause in this court. *Case v. Hoffman,*100 Wis. 314, 352-358, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945. In construing that section in that case Mr. Justice Wmsnow, speaking for tbe whole court, said that tbe section “is manifestly founded upon tbe idea that in an appellate court tbe parties-*60are entitled to have a bearing before a bench, none of whose members has previously passed upon the matter in issue, or upon any material part thereof.” So under the section of the statute here involved, the circuit judge, by reason of having acted as attorney and counsel for one of the parties to the action in respect to the same cause of action there involved, was deprived of all “power to hear and determine such action or proceeding, or to make any order therein, except with the consent of the parties thereto.” Sec. 2579, 'Stats. 1898.

*By the Court.*— The demurrer to the return is sustained, and the alternative writ of *mandamus*heretofore issued is 'hereby made peremptory, with direction that the trial “court •or the presiding judge thereof” shall forthwith “change the place of trial of such action or call in another judge in the manner prescribed in section 2625” of the Statutes of 1898; 'but without costs.