Opinion
February 7, 1950 —
February 8, 1950.
PETITION for a writ of mandamus directing the circuit judge of the Tenth judicial circuit to comply with the statute in the matter of changing the place of trial to an adjoining circuit. Writ granted.
Jack J. Schumacher of Shawano, for the plaintiff.
O. B. Strossenreuther, district attorney of Shawano county, for the respondent.
On January 25, 1950, Mary Boyd Alloway's counsel petitioned this court for an alternative writ of mandamus. The writ was issued ordering the Hon. MICHAEL G. EBERLEIN, judge of the Tenth judicial circuit, to show cause on February 7, 1950, before this court, why a writ of mandamus should not issue compelling him to change the place of trial of the petitioner to an adjoining circuit because of an affidavit of prejudice filed against him by said petitioner on August 17, 1949.
It appears from the records and file in this matter that: Petitioner Mary Boyd Alloway was arrested on or about August 4, 1949, in Shawano county, Wisconsin, on a charge of first-degree murder; the preliminary hearing was had in the justice court branch of the county court in and for Shawano county, at which time the petitioner was bound over for trial to the circuit court for Shawano county; information was filed in the circuit court for Shawano county on August 4, 1949, charging petitioner with first-degree murder; petitioner is now incarcerated in the common jail of Shawano county awaiting trial.
At the time of the arrest and the preliminary hearing, the circuit court for Shawano county was in its May term which had commenced on the second Monday of May, 1949, and continued to the first Monday of December, 1949. Petitioner filed the affidavit of prejudice against the Hon. MICHAEL G. EBERLEIN, circuit judge, presiding in and for Shawano county, on August 17, 1949.
It appears from the affidavit of the Hon. MICHAEL G. EBERLEIN, filed with this court on January 25, 1950, that about August 22, 1949, the petitioner was admitted to bail in order that she might obtain hospital treatment. She received such hospitalization and medical attention until December 27, 1949. She could not get the proper hospital treatment at the Keshena Indian Hospital where she was confined, and was ordered to return to the Shawano county jail so that medical treatment might be furnished her. This was done with the consent and approval of counsel for petitioner. It is stated further in said affidavit that on January 6, 1950, affiant had arranged with the Hon. ARTHUR W. KOPP, president of the board of circuit judges, to come to Shawano county at 10 a. m. on February 14, 1950, for the purpose of handling all matters required of him, including the setting of petitioner's case for trial.
In another affidavit filed by the Hon. MICHAEL G. EBERLEIN on February 4, 1950, he states that in the month of November, 1949, he requested the Hon. ROLAND J. STEINLE, then president of the board of circuit judges, to call in some circuit judge to try cases pending in Shawano county in which affiant was disqualified, and was advised that the president of the board of circuit judges was unable to do so and that he desired the affiant to hold court for other judges in the state, which affiant refused to do, alleging that the work in his circuit required his attention.
Sec. 356.03, Stats., rules the venue, place of trial, and procedure when an affidavit of prejudice is filed against the judge. Sub. (2) provides:
"In lieu of granting a change of venue the court may, in its discretion, retain jurisdiction of the action and provide for a trial thereof by a judge of some other circuit in the manner provided by subsections (1), (3), and (4) of section 261.08, which subsections shall apply to criminal actions."
Sec. 261.08 (1), Stats., is as follows:
"The court shall change the place of trial to an adjoining circuit upon the application of any party, who shall file his affidavit, that he has good reason to, and does believe, that he cannot have a fair trial on account of the prejudice of the judge, naming him, or the court may retain the action until the end of the current term; and in the meantime shall request the chairman of the board of circuit judges to call some other circuit judge to attend and hold court during the current or next term for the purpose of exercising jurisdiction in all actions and proceedings in which applications for change of the place of trial have been made for such reason. And while so in attendance, said judge may make all orders and hear all applications and motions that may be brought on for hearing. If no other judge can hold court for such purpose, at either of such terms, an order changing the place of trial shall be entered on the first day of the next term."
It will be noted that this subsection provides:
". . . or the court may retain the action until the end of the current term; and in the meantime shall request the chairman of the board of circuit judges to call some other circuit judge to attend and hold court during the current or next term. . . . If no other judge can hold court for such purpose, at either of such terms, [the `current term' or the `next term'] an order changing the place of trial shall be entered on the first day of the next term."
The affidavit filed February 4, 1950, states that in November, 1949, before the expiration of the May term of court, the Hon. MICHAEL G. EBERLEIN did request the president of the board of circuit judges to call in a judge to attend and hold court, but it does not state whether it was for the "current" or "next" term.
It is apparent from reading and studying the affidavit that no other judge could hold court during the "current" or "next" term of said court because of the refusal of the Hon. MICHAEL G. EBERLEIN to assist other judges in other circuits. No arrangements having been made for a qualified judge to hear the matter at the "next term" which commenced on December 5, 1949, it follows that the court lost jurisdiction of the matter on the expiration of the "current term" (May term, 1949) except for the purpose of transferring the place of trial to an adjoining circuit on the first day of the "next term" as required by statute. We do not consider the requests for medical treatment and hospitalization a waiver of the affidavit of prejudice.
The writ of mandamus prayed for by the petitioner directing the circuit judge of the Tenth judicial circuit to comply with the statute is granted, and the Hon. MICHAEL G. EBERLEIN is hereby ordered forthwith to change the place of trial of the petitioner to an adjoining circuit.
By the Court. — Writ granted.