195 P. 451 | Cal. Ct. App. | 1920
The defendant, E. B. Lettunich, appealed from an order denying a motion for change of venue. Upon his death, Stella E. Lettunich, as executrix of his will, was substituted in his place.
The action, which is personal in its nature, having been commenced in the city and county of San Francisco, summons was regularly served on June 16, 1919, in the county of Santa Cruz. The defendant appeared by filing a demurrer on July 16, 1919, service of the demurrer having been admitted by indorsement under date of July 11th. With the demurrer was served and filed an affidavit showing, among other things, that the defendant was a resident of Santa Cruz County. At the same time the statutory demand in writing was served and filed that the trial be had in the proper county. (Code Civ. Proc., sec.
[3] So far as the court is informed there is no decision holding that the notice of motion must accompany the affidavit and demand. They are entirely separate matters. Section 396 requires only the demand and affidavit to be served and filed with the demurrer or answer. The motion could not be made at that time unless notice under section 1003 were waived. The proceeding, it is true, must be prosecuted with diligence. (Cook v. Pendergast,
[4] In the present case a notice of motion was served and filed with the demurrer and other papers, in which the time of presentation was fixed as July 18, 1919. There was no order shortening time. The time allowed was less *454
than that required by section
While in the respondent's brief, the argument is divided into ten sections, there are really but two points involved in the appeal. They are, first, whether or not the court had power to consider the motion made on the second notice, and if so, whether the showing of right on the part of the appellant was sufficient. Following the respondent's elaboration of these two points, a conclusion in favor of the appellant is reached on both.
1. The respondent relies on the decision in McNeill etc. v.Doe,
2. It has already been stated that whether or not the first affidavit of merits was sufficient is conceded by the respondent to be immaterial, and that it was amendable. Permission to amend was granted properly and the amendment made to meet the objections to the original, which objections appear to have been unfounded.
3. It is argued that the original affidavit was insufficient, but, as the respondent states, that is immaterial to this appeal.
[5] 4. It is contended that the amended affidavit is insufficient because it fails to state when the defendant stated the facts to his attorney, A. W. Sans, or when the latter advised him he had a good defense. The second notice of motion stated that it would be made on the papers, files, and records of the proceeding, and the bill of exceptions settled by the judge shows that on the hearing he had before him both the original and the amended affidavits. The original affidavit was verified on July 10th, before any appearance in the action by the defendant. In it, after stating that he was the defendant and had been served with summons in Santa Cruz County, the defendant averred that he had fully and fairly stated the case to Sans and Hudson, his attorneys, and after such statement he had been advised by them, and he verily believed, he had a good defense on the merits to the action. He further alleged that he was then, at the time of the commencement of the action and for a long time prior thereto had been, a resident of Santa Cruz County, and was not, and never had been, a resident of the city and county of San Francisco. On behalf of the respondent it was contended that under this affidavit it did not appear that Sans and Hudson were attorneys, nor which of them advised the defendant he had a good defense. *456
In the amended affidavit, which was verified, on July 29, 1919, the defendant set forth the other necessary matters, and averred that he had fully and fairly stated the case to A. W. Sans, an attorney at law and one of the members of the firm of Sans Hudson, and after such statement he was advised by him, and he verily believed, he had a good and substantial defense on the merits of said action. The amended affidavit in no way contradicts the original, from which it appeared that the facts were stated and the advice given by both members of the firm before the demand for change of place of trial was filed. The objections appear to be supertechnical and without merit. (Nolan v. McDuffie,
5. It has already been shown there is a clear distinction between the demand for change of place of trial which must be, and in this case was, served and filed with the demurrer and the motion which cannot then be made unless notice of hearing be waived.
6. The foregoing statement answers the contention that the motion must be made at the time the demurrer or answer is filed. The statute requires nothing of the sort. (Code Civ. Proc., secs. 396, 397, 1003, 1005 and 1010.)
7. The right to have the place of trial changed may be waived, but in this case, far from their being a waiver, the defendant at all times insisted, and still insists, upon the enforcement of this established right.
8. The proceedings are statutory, and in this case in all matters of substance the statute was followed by the defendant. The provisions of the statute are to be liberally construed to promote justice, not to be technically warped to defeat a fixed right. (Code Civ. Proc., sec.
9. There was really but one motion to enforce the right which vested in the defendant, although there were two notices. (Code Civ. Proc., secs.
[6] 10. The defendant was guilty of no laches. The conditions would not have been changed if he had filed the demurrer, affidavit, and demand on the day they were served instead of five days later. They were filed within the time permitted by the statute.
The order in this case cannot be upheld upon the presumption that the order of the trial court was made *457
because of unreasonable and unexplained delay. In the case ofHart v. Forgeus,
The order appealed from is reversed, with directions to the trial court to make an order granting the motion for change of place of trial.
Brittain, J., and Nourse, J., concurred.