This is аn appeal from an order denying a motion for change of venue. The motion was predicated upon the grounds of residence of the defendant.
The plaintiff and defendant intermarried on June 7, 1936, and estаblished their residence in the county of Merced, state of California, where they lived for approximаtely twelve weeks. On or about the 6th day of September, 1936, the defendant and appellant returned to the city and county of San Francisco, her former home and former place of residence. On the 31st day of October, 1936, plaintiff and respondent filed a complaint for divorce in the Superior Court of the Stаte of California, in and for the County of Merced. On the 2d day of December, 1936, the defendant and appellant filed in said court a notice of motion for change of venue, motion for change of venue, аffidavit of merits, demand for change of place of trial, and a demurrer to the complaint. On March 20, 1937, the motion for change of venue came on regularly for hearing before the court, and at that time, pursuant to stipulation of parties, the oral testimony of the defendant was taken.
The affidavit of merits is in the usual and customary form, and alleges: “That she was, at the time of the commencement of the above-entitled action, and ever since has
The oral testimony of the defendant taken at the time of the hearing was as follows: ‘ ‘ That after the marriage of the parties they established a residence in the County of Merced, State of Califоrnia, and maintained it for sometime, and at the'time of leaving the County of Merced, State of California, it wаs not the defendant’s intention to change her residence, but that she had only temporarily left until the plaintiff rеgained his health, and that at no time did she intend to abandon her residence in Merced County. ’ ’
The trial court thеreupon made its order denying the motion for change of place of trial, and subsequently thereto, оn April 1, 1937, made and entered a formal order to that effect. On April 10,1937, the defendant filed a notice of appeal from the order denying motion of defendant for change of venue, and on the same day filеd a notice to the county clerk to prepare papers on appeal. The record on appeal was filed on July 6, 1937, in the Supreme Court of the State of California.
On the 3d day of Septеmber, 1937, the defendant and appellant filed a notice of motion for order for diminution of the clerk’s transcript on appeal in the above-entitled proceeding, and at said time offered to file сertain affidavits with the court in support of said motion.
The testimony of the defendant and appellant сlearly shows that the residence of the defendant and plaintiff was in the county of Merced, state of California, from June, 1936, to September, 1936; that defendant and appellant returned to the city of San Francisсo, on or about September 6, 1936, but that it was not her intention to remove to San Francisco,
The residence can be changed only by thе union of act and intent. (Pol. Code, sec. 52, par. 7.) Prom the testimony of the defendant and appellant, it is clearly evident that her intention was to return to Merced at some future time, and there was therefore nоt a change of residence within the contemplation of the Political Code.
Considering the affidavit of the defendant and the oral testimony together, and giving to each the broadest possible interpretation, it can result only in a conflict upon the question of fact as to the residence of the defendаnt.
Under such circumstances the conclusion of the trial court will not be disturbed on appeal. The burden of proving residence is upon the party alleging it, and this burden has not been met by appellant. The motion was therefore properly denied.
The Code of Civil Procedure, section 946, provides: “Whenever an аppeal is perfected, as provided in the preceding sections of this chapter, it stays all furthеr proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein. ’ ’ The notice of appeal was given on April 10, 1937, and the clerk’s transcript оn appeal was filed on July 6, 1937. The court was therefore without any authority or jurisdiction to entertain any mоtion, or to make any order respecting the change of place of trial, concerning which order the appeal had been taken and perfected.
The order appealed from is affirmed.
Pullen, P. J., and Thompson, J., concurred.