Eldred v. Becker

• Decision Date: 18 March 1884
• Citation: 60 Wis. 48,18 N.W. 720
• Parties: ELDRED AND ANOTHER v. BECKER, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 48

18 N.W. 720

ELDRED AND ANOTHER

v.BECKER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Marathon county.

This appeal is by the defendant Becker from an order denying his application, made in his own behalf alone, for a change of the place of trial of the action. The application was based upon the affidavit of Becker to the prejudice of the judge of the court in which the action was pending. Such affidavit is in the form required by section 2625, Rev. St. The situation of the case when the above proceedings were had is set forth in two affidavits made after the order appealed from was entered, which were filed by leave of court. One of these was made by the attorney for the appellant, the other by one of the plaintiffs. From the first of these affidavits it appears that the action was brought against the defendants as partners on an account against the firm, but that the defendant Young was not served with process and has not appeared in the action; that the indebtedness in suit was contracted by Young; and that Becker had interposed a verified answer denying the partnership. The other affidavit is to the effect that the cause was duly noticed for trial at the October term, 1882, of the circuit court of Marathon county; that the parties stipulated to change the place of trial thereof to La Crosse county, but the change was not made because the costs in the action were not paid by any one, and the record was never transmitted; that the attorney for appellant refused to pay such costs; and that the cause was again noticed for trial at the October term, 1883, of the circuit court of Marathon county, and placed upon the calendar; that after a motion by defendant to strike the cause from the calendar for want of notice of trial, and an objection that the same was not triable in Marathon county, had been overruled, the parties agreed that the cause should be referred, but no referee was selected; that the appellant thereafter made two applications for the removal of the cause to the United States court, both of which were denied; and that he thereafter at the same term presented the above-mentioned affidavit of the prejudice of the judge and applied for a change of the place of trial to another county, which application the court denied, as before stated. Also that the court afterwards appointed a referee to hear, try, and determine the action.E. L. Bump, for respondents, C. F. Eldred and others.

John J. Cole, for appellant, Henry Becker, impleaded, etc.

LYON, 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 as 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 the 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 case been returned here this court could do the same thing. But instead of sending up the whole record the court has allowed these affidavits to be filed which state the proceedings so far as they affect the order appealed from. The affidavits 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 practice, 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 rule 11, § 4,) and the practice adopted is a convenient, and, we think, an unobjectionable way of informing this court what the record contains, and upon what facts the circuit court acted. In this view it is quite immaterial that the affidavits were not interposed until after the motion was 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 record 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...