18 N.W. 720
Wis.
1884
LtoN, J.

1. The point is made by the plaintiffs that in the determination of this appeal the affidavits which the court permitted to be filed (evidently аs part of the motion papers) should be disregarded because they were not made until after the court had denied the motion to change the place of trial, and consequently could not have been used on the hearing of the motion. We think thе point is not well made. All the material facts stated in the affidavits appeared of record in the cause, and the judge necessarily took judicial notice of them when he considered and decided the motion. Had the whole record of the сase been returned here this court could do the same thing. But instead of sending up the whole record the court has allowed thеse affidavits to be filed which state the proceedings so far as they affect the order appealed from. The affidаvits merely inform us of facts of which the circuit court had judicial knowledge, and upon which it acted in deciding the motion. It is common рractice, on motions, to embody in affidavits the substance of material portions of the record; and it is better practice than to lumber the motion papers with the whole record, or copies of it. The record in the action was before the circuit court on the hearing of' the motion, without copies thereof and without the affidavits (Circuit Court Rules, XI, sec. 4), and the practice adopted is a convenient *51and, we think, an unobjectionable 'way of informing this court what the record contains аnd upon what facts the circuit court acted. In this view it is quite immaterial that the affidavits were not interposed until after the motion wаs determined. This question of practice being disposed of, we are now to consider the merits of the appeal.

2. The defendant Young did not join in the application for the change of the place of trial. Taking cognizance of the reсord in the action, as the same is stated in the affidavits,— particularly in that of the attorney for the appellant,— it appears that Young was not served with process, and never appeared in the action. On the authority of Wolcott v. Wolcott, 32 Wis., 63, it was not essential to the success of the application that he should join therein. This court said in that case: “We are further of the opinion,, and sо hold, that an application for a change of the place of trial for the prejudice of the judge, made by the dеfendants in an action, and which is otherwise sufficient, should ‍​‌​‌​‌‌‌‌​​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‍not be denied merely because a defendant who has not appeared in the action and is in default, has not joined in the application.” The reason is even stronger why the failure to join in the аpplication by a defendant not appearing in the action, and who has not been served with process, should not defeat the motion.

The rule is as applicable to actions at law as to equitable actions, and the mere circumstanсe that Wolcott v. Wolcott was an equitable action did not affect the judgment. In Rupp v. Swineford, 40 Wis., 28, the late chief justice in his opinion uses language which might well be understood as restricting the rule of Wolcott v. Wolcott to suits in equity. But in that case аll of the defendants had appeared in the suit and answered the complaint before the application was madе by one of them to change the place of trial. The precise point there decided by the court was noted at thе time by the writer as follows: “No change of venue can *52lawfully be awarded in a civil action on the application of а portion of the ‍​‌​‌​‌‌‌‌​​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‍defendants (or plaintiffs, as the case may be), except as mentioned in Wolcott v. Wolcott. This case is not within any such excеption.” The above language in the opinion is a repetition, as to actions at law, of the argument of counsel for the appellant in Wolcott v. Wolcott, and not the expression of the judgment of the court in the case in which the opinion was written. Besides, it is entirely оutside the case, and therefore purely oloiter dictum. The present members of this court who participated in the decision of Rupp v. Swineford freеly admit that the opinion should not have been allowed to go into the reports in its present form as ‍​‌​‌​‌‌‌‌​​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‍the opinion of the cоurt. All they can do is to join with their associates in reasserting the rule of Wolcott v. Wolcott, which the court has never overruled or shaken. It is very obvious that the learned circuit judge was misled, as he might well be, by the opinion in Rupp v. Swineford, when he overruled the application to change the place of trial. We regret that he was placed in this position, but must, at the same time, decide this appeal in the light of well-settled rules of lаw.

3. The plaintiffs claim that the application to change the place of trial came too late, becausе the action was on the calendar for trial, and the parties had agreed that it should be referred. Grobman v. Hahn, 59 Wis., 93, is cited to support this position. It was there ‍​‌​‌​‌‌‌‌​​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‍held that the.case came within the rule of Swineford v. Pomeroy, 16 Wis., 553, in which it was held that such an application, made during the progress of the trial, was too late. The application in Qrób-man v. Hahn was made a little earlier than in Swineford v. Pomeroy, but after the trial had substantially commenced, although the jury had not been actually sworn. We do not think this case comes within the rule there applied, and hence wTe think the application was seasonably made.

4. The appellant was not in default for not paying the *53costs and procuring the transmission of the record to La Crosse county on the order of November term, 1882, chаnging the place of trial to that county; at least, he is no more in default in that behalf than are the plaintiffs.. The order was madе pursuant to a stipulation of the parties; that is to say, it was procured by them jointly, and one party was under no greater obligation than the other to pay the costs and procure the transmission of the record. ¥e think the case in respect to that order stands precisely as though the parties had stipulated that such order be vacated. In that case it would hardly be clаimed that the making and vacating of the order of 1S82 would be an impediment to granting the application of 1883. We do not determine, however, whether, had the first order been procured by the appellant, his failure to cause the record to be transmittеd would have been a bar to the last application. See R. S., 719, see. 2627.

Upon the whole case we conclude that the application should have been granted. The ‍​‌​‌​‌‌‌‌​​​‌‌​‌​​‌‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​​​​‌‌​​‌​‌‍order appealed from must be reversed, and remanded for further proceedings.

By the Court. — ■ It is so ordered.