Schattschneider vs. Johnson and others. right to keep up the water had ever been acquired at all." These quotations are sufficient to show the general import of the charge; and when the charge is considered with reference to the evidence, it is unobjectionable. The criticism passed upon it, or upon portions of it, seems to us over nice and refined, and fails to point out any error which could have misled the jury. Of course, when the plaintiff showed that any portion of his land was flowed or injured by the defendants' dam, it was incumbent on them to establish a prescriptive right thus to flow it. This was the issue in the case, and it appears to have been submitted upon the evidence, with no misdirection as to the law. By the Court. The judgment of the circuit court is affirmed. SCHATTSCHNEIDER VS. JOHNSON and others. CHANGE OF VENUE. (1) Appealable order. Res adjudicata. Denial of one motion does not bar a second. (2) Discretion of trial court as to change of venue for prejudice of the people of the county. 1. An order refusing to change the place of trial on account of the prejudice of the people of the county in which the action was brought, is appealable, and it may also be reviewed on appeal from the final judgment; and one such order made in an action does not bar a second like motion by the same party on the same ground. Hackett v. Carter, 38 Wis., 394. 2. The granting of a change of venue in such cases rests in the sound discretion of the court, acting upon its own knowledge and observation as well as upon the proofs presented; and its decision will not be reversed except for an abuse of discretion. APPEAL from the Circuit Court for Jefferson County. 1. The order was not appealable. Baldwin v. Marygold, 2 Wis., 419; Rines v. Boyd, 7 id., 155; Runals v. Brown, 11 Schattschneider vs. Johnson and others. id., 186; Western Bank of Scotland v. Tallman, 15 id., 92; 22 id., 99. 2. The question was not res adjudicata by the denial of the former motion. G. W. Bird, for respondent: 1. The question was res adjudicata by the denial of the former motion, made on the same grounds. Cothren v. Connaughton, 24 Wis., 134; Kabe v. The Eagle, 25 id., 108; Moll v. Benckler, 28 id., 611; Branger v. Buttrick, id., 450; Mercein v. The People, 25 Wend., 63; Sup'rs v. Briggs, 2 Denio, 26; White v. Coatsworth, 2 Seld., 137; In re Livingston, 34 N. Y., 555; Pierce v. Kneeland, 9 Wis., 23; Hill v. Hoover, id., 15; Allen v. Gibbs, 12 Wend., 202. But if the doctrine of res adjudicata were not applicable to the motion, it could not be renewed without first obtaining leave of the court. Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493; Belmont v. R. R. Co., 52 Barb., 637; Corwith v. Bank, 11 Wis., 430. 2. A change of venue on the ground here assigned could properly be granted only upon the fact being clearly established to the satisfaction of the court. Tay. Stats., 1425, § 14; R. S., 1055; Hungerford v. Cushing, 2 Wis., 397; Frank v. Avery, 21 id., 166. The determination of the court below will not be disturbed unless there was an abuse of its discretion. 24 Wis., 533; 30 id., 129; 31 id., 512; 33 id., 413; Lego v. Shaw, 38 id., 401. LYON, J. This appeal is from an order of the circuit court denying the motion of the plaintiff for a change of the place of trial of the action because of the alleged undue influence of the defendants over the people of the county in which the action is pending, and because of the prejudice of such people against the plaintiff. At a previous term of the court a similar motion had been made by the plaintiff, and denied. Affidavits were read in support of and against the last motion. These were quite voluminous, and it will serve no useful purpose to set them out at length, or to attempt to state the sub Schattschneider vs. Johnson and others. stance of them. It is sufficient to say, that, in our opinion, those read in support of the motion, considered alone, are entirely sufficient to justify, if not to require, a change of the place of trial. But the affidavits read in opposition to the motion materially weaken the force of those read to support it. Yet, considering all of the affidavits, we are inclined to think the place of trial ought to have been changed. Certainly, had the motion been granted, this court would be slow to interfere with the ruling. It must be remembered, however, that this is a matter which rests in the sound discretion of the circuit court, and nothing short of an abuse of such discretion will justify our interposition. We cannot say that there was an abuse of discretion in the present case. In reaching the conclusion that the motion ought to be denied, the learned circuit judge may have been influenced by his personal observation and knowledge, to which he might properly resort. Jackman Will Case, 27 Wis., 409; Lego v. Shaw, 38 id., 401. The former order denying a like motion is no bar to the last motion. This is one of the cases to which the doctrine of res adjudicata is not applicable. The order refusing to change the place of trial is appealable, and it may also be reviewed on an appeal from the final judgment in the action. Haas v. Weinhagen, 30 Wis., 326. Hence the case is ruled by Hackett v. Carter, 38 id., 394. The motion may be renewed at the pleasure of the plaintiff. By the Court.-Order affirmed. Van Slyke vs. Trempealeau County Farmers' Mutual Fire Ins. Co. VAN SLYKE VS. TREMPEALEAU COUNTY FARMERS' MUTUAL FIRE INSURANCE COMPANY. CONSTITUTIONAL LAW. TRIAL BY NON JUDEX. (1) Limitation of legislative power as to conferring judicial jurisdiction. (2) Act permitting trial by a member of the bar of this court in certain cases, void. (3) Presumption from record in such a case. (4) Judgments of judges de facto, distinguished. (5) Reversal of judgment for mistrial. CHANGE OF VENUE. (6) How question of judge's prejudice to be raised. 1. The constitution of this state having vested all judicial jurisdiction in courts and justices of the peace, and provided for the election of judges of all courts, the legislature can confer no judicial jurisdiction on other officers or persons, excepting power not exceeding that of a circuit judge at chambers, on court commissioners. 2. Ch. 69, Laws of 1870, which authorizes parties to avoid a change of venue for prejudice of the circuit judge, by stipulating that a member of the bar of this court shall act as judge in the case, with all the powers and duties of a circuit judge, is void. 3. On appeal from a judgment signed by the clerk, where the record here shows that on the trial of the cause in the court below the judge of that court left the bench, and that his place was assumed by another person, a member of the bar of this court, but not a judge, who tried the cause, and upon whose consideration the judgment was rendered, this court cannot presume that such judgment rests upon a proper trial of the issue, but must treat the proceeding as coram non judice, and the judgment as void. 4. In re Boyle, 9 Wis., 264; State v. Bloom, 17 id., 521; and Laver v. MeGlachlin, 28 id., 361, in which the court upheld the judgments of judges de facto, and not de jure, distinguished from this case, in which the person who tried the cause was not in possession of the office of judge, and did not claim it. 5. The judgment, having proceeded upon a mistrial, and not being a proper judgment of the court below, whether it is void or voidable, must be reversed. 6. Whether the petition of a party to an action, representing the judge to be related to the parties and necessarily and insensibly prejudiced in the case, but not praying a change of venue, properly raises the question of prejudice, is not here decided. APPEAL from the Circuit Court for Trempealeau County. Van Slyke vs. Trempealeau County Farmers' Mutual Fire Ins. Co. Action for a loss by fire, under an alleged agreement for insurance. Plaintiff presented to the court a petition representing that the judge, by reason of relationship to the parties, was insensibly prejudiced in the case; whereupon the parties stipulated for a trial before John J. Cole, Esq., a member of the bar of the supreme court.* The bill of exceptions states that the action " came on for trial before John J. Cole, Esq., a counselor of the supreme court of this state, who sat as judge to try the case by stipulation of the parties, and a jury, at the April term of the court," etc.; and it is signed "JOHN J. COLE, Counselor, acting as Judge." The plaintiff had a verdict and judgment; and the defendant appealed. A. W. Newman, for appellant. G. Y. Freeman, for respondent. RYAN, C. J. Mere imputation of prejudice to the circuit judge, made in proper time by either party to a civil action, entitles the party making it to a change of the venue. Ch. 123, sec. 8, R. S.; ch. 206 of 1862. With a view, doubtless, of mitigating such inconvenience, ch. 69 of 1870 authorizes the parties to avoid change of the venue on that ground, by stipulating that a member of the bar of this court shall act as judge in the cause, with all the powers and duties of the circuit judge. Such a statute might work well. But we cannot consider *Ch. 69, Laws of 1870, amended the statute directing a change of venue upon petition of a party showing prejudice of the judge, by adding thereto the following: "Unless the parties to said action, by themselves or their attorneys, shall make and file with the clerk of the court in which said cause is pending, a written stipulation agreeing that some member of the bar of the supreme court of Wisconsin act as judge in said cause; and in that case the place of trial of such action shall not be changed, but the party so agreed upon may act as judge in said cause, and shall have all the powers and perform all the duties of the judge of said court in said cause." |