#### Moe vs. Moe. (Three Appeals.)

Chauge of Venue: Stay of Pboceedings: Appeal: Divobce: Tem-pobaRY Alimony. *(1) Bight of defendant in divorce to have venue changed to his county, even when it must afterwards he removed thence. (3) Demand of such change does not stay proceedings. (2) Double appeal for same relief, (i) Record on appeal from order for temporary alimony. (8) Power of court to which the cause is removed, over previous allowances for temporally alimony, etc.*

1. In a divorce suit not commenced, in the county of defendant’s residence, he is entitled to have the venue changed to that county, notwithstanding iilaintiff’s affidavit that the ch-cuit judge thereof is prejudiced against her; although, upon renewal of such affidavit after the change of venue, she may be entitled to have the cause sent out of that circuit for trial.

*3092. Where the same motion, on the same ground, is made and denied twice in the same action, and both orders appealed from, the relief sought being obtained on the first appeal, the second is dismissed.

3. Where the summons is served on the.defendant in his own county, his demand that the venue be changed to that county (under sec. 4, ch. 123, R. S.) does not operate as a stay of proceedings; and the court in which the action is, has authority, ponding the motion for the change of venue, to order payment of temporary alimony and suit money. *Bonnell v. Ch-aij,*36 Wis., 574, followed.

4. Where an answer was served after the motion for temporary alimony, etc., was made, and before it was determined, but was not filed until after its determination, and was not before the court on the hearing of the motion, this court must affirm the order" granting such alimony if justified by the facts stated in the petition.

5. But the proper circuit court can modify said order on defendant’s application, and may in its discretion allow, on the attorney’s fees therein- directed to be paid, any attorney’s fees which shall be paid by the defendant on tírese appeals.

APPEALS from tlie Circuit Court for *Milwaukee*County.

• Appeals from tliree orders made in the progress of the cause. The action is for a divorce, and was commenced in the circuit court for Milwaukee county. The summons and complaint were served on the defendant in Portage county, March 8,1875. It is undisputed that the defendant was then, and for many years had been, a resident of the latter county. On the 13th of the same month, defendant served upon plaintiff’s attorney an affidavit of such residence, together fvith a notice, of motion to he made to the court on a day therein specified for an order changing the place of trial of the action to Portage county, unless plaintiff should sooner consent to said change. Plaintiff not consenting thereto, the motion was argued, and was denied by an order bearing date, May 17, 1875. On the argument, an affidavit of the plaintiff was read in opposition to the motion, to the effect that the judge of the judicial circuit which includes Portage county is prejudiced against the plaintiff. The first appeal is from the order of May 17th.

*310Tbe motion for a change of tbe place of trial, for tbe same canse, was renewed, and, by an order dated May 26, 1875, was again denied. Tbe second appeal is from tbis order.

"With tbe summons and complaint a petition of tbe plaintiff for temporary alimony and suit money, and an order to sbow cause wby an allowance tberefor, to be paid by tbe defendant, should not be made, was served upon tbe defendant. Tbe petition alleges that tbe plaintiff is wholly destitute of tbe means of support, and, upon information and belief, that tbe defendant has property of tbe value of over $20,000, and that bis annual income is over $3,000. Tbe motion, or order to sbow cause, was undefended, and tbe court made an order founded thereon, dated April 20, 1875, requiring tbe defendant to pay to tbe plaintiff’s attorney $100 for attorney fees, and also to pay to her or her attorney five dollars per week during tbe pendency of tbe action. Tbe third appeal is from tbe order of April 20th.

Tbe cause was submitted on briefs.

*D. Iloyd*Jones-and *Butler, Dams da*Flanders, for tbe appellant,

contended that a demand in writing for a change of tbe venue to defendant’s county having been made in due form before tbe time for answering expired (Tay. Stats., 1423, § 4), and proof of such demand having been filed in tbe office of tbe clerk of tbe circuit court for Milwaukee county, tbe latter court bad no other jurisdiction than to make an order transmitting tbe papers in tbe cause to tbe proper county; and that tbe order granting alimony was therefore void. 2. That unless tbe summons and complaint were served on tbe defendant in Portage county, tbe demand itself stayed all proceedings; and there is no record proof as to where tbe summons and complaint were served. Tay. Stats., 1423, § o. 3. That tbe order granting alimony should be reversed for tbe further reasons that it was made in tbe absence of tbe defendant and bis counsel, and not upon tbe day named in tbe order to sbow cause wby alimony should be granted; and that *311the answer alleged facts showing that plaintiff was not entitled to alimony.

*J. V. V. Platto,*for respondent,

argued that as tbe object sought by the two appeals from the two orders refusing to change the place of trial could have been accomplished by one appeal, the second appeal must be dismissed. *Young v. Groner,*22 "Wis., 205; *Mead v. Walker,*20 id., 518. 2. The defendant did not entitle himself to a change of venue on the ground that the action had not been commenced in the proper county, because no proper *demand*in writing was made before the time for answering expired (Tay. Stats., 1423, § 4), but a *motion*was made in the first instance. The *consent*of the plaintiff must first be sought in such cases; if that is not obtainable, an order of the court may then be sought. “ The object of the demand is to allow the plaintiff an opportunity of voluntarily correcting the error without the expense of a motion.” *Yt. P. B. Go. v. Northern R. B. Go.,*6 Ilow. Pr.,' 106; *Houck v. Lasher,*17 id., 520; *Pereles v. Albert,*12 "Wis., 666; *Foster v. Bacon,*9 id., 345, 347; *State*-y. *McAr-tlvwr,*13 id., 407-8; *Lame v. Burdick,*17 id., 92, 95; 2 "Wait’s Pr., 628 b, 629 a; 1 Till. *&*Shearm. Pr., 528-30; 1 Whitta-ker’s Pr. (3d ed.), 664; 2 id., 1019; 2 Abb. Pr. & PL, 243, note (a), and 246. 3. By admitting “due service” of notice of trial and giving a cross notice, defendant waived his right to a change of venue. *Strvmer v. Ocean Lns. Go.,*9 Abb. Pr., 23,27; *Taiman v. Barnes,*12 Wend., 227. 4. The affidavit used in plaintiff’s behalf at the hearing, showing that the circuit judge of Portage county was prejudiced against her, was a sufficient ground for denying the motion. *Bormell v. - Fsterly,*30 Wis., 549; *Goodno v. Oshkosh,*31 id., 127. 5. The appeal from the order denying a change of venue was no ground for refusing suit money and alimony *pendente Ute. 5*Wait’s Pr.,'736; *Robertson v. Robertson,*1 Edw., 360; *Wood v. Wood,*7 Bans., 204. 6. The statements of the answer, being contradicted by those of the plaintiff’s petition, *312cannot be taken as true against ber; and she is entitled to the means of support and of carrying on the suit pending the trial and determination of the issues of fact.

LyoN, *J.*

I. The first motion for a change of the place of trial to Portage county should have been granted. The notice of motion contained a good demand for such change under the statute (R. S., ch. 123, sec. 4), and the affidavit of the ■plaintiff that the judge of the seventh circuit' is prejudiced against her, is not sufficient to defeat the motion. Such affidavit may show that the action should not be tried in that circuit; and if it be renewed.when the cause is sent to Portage county, the circuit judge will doubtless send the cause out of his circuit; but it does not show that the trial ought to be had in Milwaukee county. In that respect it is quite unlike the case of *Couillard v. Johnson,*24 Wis., 533, where it was made to appear that the action ought to be tried in the county in which it was commenced. We hold that in this and similar cases, an affidavit of the prejudice of the judge of the circuit court for the county in which the ’ defendant resides, is not, of itself, sufficient ground for denying a motion to change the place of trial to that county. The order of May 17,1875, denying the plaintiff’s motion to change the place of trial to Portage county, must be reversed, and the cause remanded with directions to the circuit court to grant such motion. The defendant must pay the costs of the appeal from the order of May 17; but no attorney’s fees shall be taxed therein against him.

II. The defendant having obtained by his first appeal all that he seeks to obtain by his appeal from the order of May 26, the latter appeal is superfluous, and must be dismissed. *Young v.*Groner, 26 Wis., 205.

III. The demand that the place of trial be changed to Portage county was made under sec. 4, ch. 123, R. S., and did not operate as a stay of proceedings, as it would have done had *313tbe summons been served in any other than Portage county. Laws of 1869, cb. 185 (Tay. Stats., 1423, § 5). No order was made staying proceedings in tbe action pending tbe motion. Under these circumstances it must be held, on tbe authority of *Bonnell v. Gray,*36 Wis., 574, that pending such motion tbe court bad jurisdiction of tbe action, and authority to make tbe order for tbe payment of temporary alimony and suit money. In making that order tbe court bad before ' it only tbe complaint and petition. True, tbe answer bad been served when tbe motion was determined and tbe order made; but it was not filed until June 4th, and was not before tbe court on tbe bearing of tbe motion.

Taking tbe facts stated in tbe petition as true, tbe allowance does not seem excessive. *We*must therefore affirm tbe order of April 20th. But tbe whole matter is under tbe control of tbe proper circuit court; tbe defendant is at liberty to apply to that court for a modification of tbe order; and tbe court may in its discretion allow, on tbe attorney’s fees therein directed to be paid, any attorney’s fees which shall be taxed against and paid by tbe defendant, on these appeals.

*By the. Gourt.*'- — Order of March 17th reversed; that of April 20th, affirmed; and tbe appeal Rom tbe order of May 26th, dismissed.