The court commissioner of Rock county made an order transferring this cause from the county court to the circuit court of Rock county by reason of alleged prejudice in the judge, notwithstanding which the county court proceeded in the cause to give judgment, and the first question'presented upon the record is, whether the commissioner had power to make such an order.
The office of court commissioner is one created by statute, and he has no powers but what are conferred. We are all convinced that no such power ought to be conferred by the legislature upon that officer, and we therefore feel assured that no such power has been conferred.
But upon the trial, the defendant offered to prove by a witness called upon the stand by the plaintiff, that “ at the time of the commencement of the suit the plaintiff had not, never since has had, and has not now any title to or interest whatever in ” the note upon which the suit was instituted. This testimony was objected to and overruled. This offer was very broad, as I should infer (from what was said upon the argument), much broader than the defendant could comply with.
But we are not permitted to rest upon any such interested inference. Very likely, as was argued by the defendant in error, the possessor of the promissory note who has any interest therein may maintain suit upon it. But the defendant offered to show that plaintiff had no interest whatever in the note sued upon. If the fact was so, he could not be the rightful owner of the note. Payment to him would be no discharge against the right owner. Judgment recovered by him *390would be no bar to a subsequent suit by the right owner. And we think such proof ought to have been received, and that the judgment of the county court must therefore be reversed.
Judgment reversed.