State ex rel. Rowell v. Dick, 125 Wis. 51.

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 the case at bar the application for the change of venue was made by the widow of Ira Rowell, who died July 19, 1886, and their four children, and the husband of one of them, claiming an interest in the undivided one-fourth of the premises. They constituted a group of defendants having interests in common in the 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. Rowell, and the defendant, the John S. Rowell Manufacturing Company; and they both objected to such change. The manufacturing company held a lease of the premises, executed by John S. Rowell, on the undivided three-fourths of the premises, and thereunder claimed the 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. Rowell 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. Rowell 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. Rowell and their

State ex rel. Rowell v. Dick, 125 Wis. 51.

wives, upon each and all of whom the summons and complaint were served. No further proceedings were had therein until July 29, 1904, except that the 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. Rowell 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. DICK, 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

State ex rel. Rowell v. Dick, 125 Wis. 51.

matters now presented by said defendant corporation, and could not, as such 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. Rowell 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. Rowell. 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. Rowell, as to such partition, which

State ex rel. Rowell v. Dick, 125 Wis. 51.

was the cause of action alleged in the complaint in both actions. Such being the facts, the statute deprived him of "power to hear and determine such action or proceeding or to make any order therein, except with the consent of the parties thereto." The same conclusion has been reached in other states under similar statutes. Thus, in California it has been held that:

"A change of the place of trial may be had on the ground that the judge of the court in which the action was brought had received a general retainer from one of the 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 his having been counseled regarding the subject matter of the 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 the precise question here presented, but it has determined a question quite analogous and one involving the same principle, arising under the next section of the statute, which declares, in effect, that no justice of this court "shall decide or take part in the decision of any cause or matter which shall have been determined by him, while sitting as a judge of any other court." Sec. 2580, Stats. 1898. In a case where a justice of this court was disqualified by that statute from participating in the decision of the same by reason of having previously determined the cause or matter at the circuit, it was held that the judgment of this court in which he so participated was "coram non judice and void," notwithstanding he was only one of the five justices so deciding the cause in this court. Case v. Hoffman, 100 Wis. 314, 352358, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945. In construing that section in that case Mr. Justice WINSLOW, speaking for the whole court, said that the section "is manifestly founded upon the idea that in an appellate court the parties

Dixon v. Sheridan, 125 Wis. 60.

are entitled to have a hearing 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.

DIXON, Administrator, Respondent, vs. SHERIDAN, imp., Ap

pellant.

April 5-May 2, 1905.

Statute of frauds: Parol agreement to make a will: Parol transfer of personalty: Conversion: Double damages.

1. In an action for conversion of certain personal property alleged to belong to a decedent's estate by transfer from his father, the evidence, stated in the opinion, is held to show a parol agreement by the father to make a will of real and personal property in favor of decedent, and such agreement, being indivisible, was void under the statute of frauds.

2. Under sec. 3824, Stats. 1898 (providing that if any person, before the granting of letters testamentary or of administration, shall convert any property of the deceased, such person shall be liable for double the value of the property so converted), a conversion, after the appointment of a special administrator but before the appointment of the regular administrator, is not within the terms of the statute.