
    Peterson, by guardian ad litem, Appellant, vs. Daniel Shaw Lumber Company, Respondent.
    
      May 22
    
    June 19, 1896.
    
    
      Change of venue: Prejudice of judge: Application, when to he made: Waiver.
    
    1. An application for a change of venue on the ground of prejudice of the judge is not too late, though made after a struck jury has been summoned and is in attendance pursuant to ch. 268, Laws of 1889 (S. & B. Ann. Stats, secs. 2544s-2544y), if made before any further proceedings are had. Grobman v. Hahn, 59 Wis. 93, distinguished.
    2. A stipulation, in such a case, that the action should be tried by the struck jury was not a waiver of the right to apply for a change of venue.
    Appeal from a judgment of the circuit court for Eau Claire county: W. F. Bailey, Circuit Judge.
    
      Reversed.
    
    For the appellant there was a brief by George M. Pophcm, attorney, and V. W. James, of counsel, and oral argument by C. T. Bundy.
    
    They argued that at the time of the filing of the affidavit of prejudice and motion for change of venue no proceedings had been taken by either party before the court and the trial had not in any sense begun. The application was therefore seasonably made. Eldred v. Becker, 60 Wis. 48. Ch. 268, Laws of 1889, under which the struck jury in question was attempted to be drawn, is borrowed verbatim from the statutes of Minnesota (Gen. Stats. Minn. cb. 71); and bad been construed in tbe particular under consideration by tbe supreme court of that state before its adoption by our legislature. O'Brien v. Minneapolis, 22 Minn. 378; Ma/rh v. Si. P., M. dk M. B. Oo. 32 id. 208.
    For tbe respondent tbe cause was submitted on tbe brief of M. M. May den.
    
   Cassoday, C. J.

This action is to recover damages for personal injuries to tbe plaintiff while in tbe employ of tbe defendant. Tbe answer was served and issue joined March 8, 1895. Tbe cause was noticed for trial and on tbe calendar for tbe term commencing March 18,1895. June 14,1895, the parties stipulated to tbe effect that tbe defendant might demand, within two days, and obtain a struck jury for tbe trial of tbe cause, as prescribed by statutes; that one day’s notice therefor should be sufficient; that tbe action should be tried by tbe jury so obtained, tbe same as though all tbe provisions of law relating to tbe striking of such juries bad been complied with. On tbe same day tbe defendant demanded of tbe clerk of tbe court that a struck jury be drawn as prescribed by statute, for tbe trial of the action. Laws of 1889, cb. 268 (S. & B. Ann. Stats, secs. 2544s-2544y). Tbe clerk forthwith delivered a certified copy of such demand to tbe sheriff, who thereupon made a list of forty names, from which such struck jury was to be selected, and gave due notice to tbe attorneys of tbe respective parties of tbe time and place for striking such jury. Both parties attended accordingly, and each struck twelve names from tbe list. Thereupon tbe clerk issued a venire to the sheriff, requiring him to summon tbe sixteen persons whose names remained upon tbe list to appear before the- judge of the court, at tbe court room in Eau Claire, June 24, 1895, at 10 A. M., to serve as jurors. Tbe sixteen men so summoned attended as required, but owing to tbe absence of the presiding judge no proceedings were bad on that day. June 25, 1895, both parties and the sixteen persons so summoned as jurors attended at the place named before the judge, whereupon, and before any other proceedings were had, the plaintiff filed his affidavit to the effect that he had good reason to believe, and did believe, that he could not have a fair trial of the action on account of the prejudice of the judge (naming him), and moved the court to change the place of the trial of said action, but which motion was then and there denied. Thereupon the cause was adjourned to July 15,1895, by consent of the respective parties. July 15,1895, the sixteen jurors being present and the court ready to try the cause, the plaintiff refused to enter upon said trial, and asked to submit to a voluntary nonsuit; and thereupon, and on motion of the attorney for the defendant, it was ordered by the court that the action be, and the same was thereby, dismissed, with costs to be taxed in favor of the defendant. From the judgment entered thereon accordingly the plaintiff brings this appeal.

Counsel for the defendant concedes that the only question presented by this appeal is whether the application for the change of venue was “ made in due season,” or “ made too late,” and the presiding judge certifies that question or point of law to be of such doubt and difficulty as to require the decision of this court. The affidavit was. in strict compliance with the statutes (S. & B. Ann. Stats, sec. 2625). This being so, and the statute being imperative, it rendered the presiding judge incompetent to try the case, if the application was seasonably made. Fatt v. Fatt, 78 Wis. 635, and cases there cited. “ If the court actually lost jurisdiction by virtue of such application, then it did not regain it by reason of any subsequent proceeding in the case.” Id. The only question, therefore, is, as stated by counsel, whether the application was seasonably made, or made too late.

It has repeatedly been held that the application is too late if not made until after a jury has been called and a trial of the' cause commenced. Swineford v. Pomeroy, 16 Wis. 553; Cairns v. O’Bleness, 40 Wis. 469; Grobman v. Hahn, 59 Wis. 93; Allis v. Meadow Springs Distilling Co. 67 Wis. 16; Duffy v. Hickey, 68 Wis. 380; Schuetze v. Continental L. Ins. Co. 69 Wis. 252. It has also been held by this court that such application was seasonably made, “ although the cause was upon the calendar for trial and the parties had agreed that it should be referred.” Eldred v. Becker, 60 Wis. 52. It is claimed that the case at bar is ruled by Grobman v. Hahn, supra. That case was properly on the calendar of the Dodge county court for trial, December 6,1882, and was called, and a jury was drawn and struck, and by agreement of the parties the trial was set for December 21, 1882. A venire was thereupon issued and served on the jurors selected, who were present in court on the day named. The defendant was also present with his witnesses, ready for trial. Whereupon the plaintiff applied for such change of venue, and it was held that it came too late. That case was ■distinguished in Eldred v. Becker, supra, and Mr. Justice LyoN said that the application in Grobman v. Hahn was made “ after the trial had substantially commenced, although the jury had not been actually sworn.” In that case the jury were selected and summoned under sec. 2418, S. & B. Ann. Stats. As therein prescribed, when the cause was called for trial a demand was made “in open court” for a trial by jury; and thereupon the clerk drew the same, and the respective parties were then and there entitled to “peremptory challenges . . . as in case of drawing a jury in the circuit court, except that the persons so drawn need not be present when drawn.” Id. When so drawn, or otherwise agreed upon by the parties, a venire therefor was required by the statute to “be issued by the court to the ■sheriff,” who was therein required to summon the persons therein named to serve as such jury, and it was for the court to fix the time in such venire when such jurors should be required to appear in court. Id. In case of any failure to appear, or any legal objection to or excuse of any of those who did appear, the coivrt was therein required to direct the sheriff to summon from the county or bystanders other disinterested persons, as talesmen, to supply the deficiency, but otherwise the twelve men so selected were to be the jury id the case. Id. Under that statute the court was necessarily an active agency in doing what was done in Grobman v. Hahn. In selecting the names of the sixteen persons from whom a jury was to be chosen in the case at bar, as indicated, and the issuing of a venire for the same, and fixing the time when the same should be made returnable, and summoning them to appear, the presiding judge, under the statute, had no part. Laws of 1889, ch. 268 (S. & B. Ann. Stats, secs. 2544s-2544y). The first thing he was called upon to do in the case was to change the venue, which he refused. Ordinarily a party can have no good reason for believing a judge to be prejudiced against him in an action until he does something in or says something about parties or the action. The affidavit of prejudice in the case at bar may be, and presume ably was, based upon something that occurred after the making of the stipulation mentioned. True, the parties had agreed to try the cause by the jury so obtained; but we do not understand that either party thereby intended to waive, or did waive, the right secured by statute for the change of venue in case a good reason for doing so should arise. Besides, the presiding judge, notwithstanding such application, had the right, “ in his discretion,” to retain the action and1 call in another circuit judge to try the same before such jury. Laws of 1887, ch. 435 (S. & B. Ann. Stats, sec. 2624a). We are constrained to hold that the rulings of the trial court were erroneous.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.  