19 P.2d 278 | Cal. Ct. App. | 1933
This is an appeal from an order denying a motion for a change of place of trial from the county of Sonoma to the city and county of San Francisco. The motion is made upon the ground that San Francisco is the residence of the defendants. The order is sought to be upheld upon the ground that the action is one for personal injuries caused by alleged negligence in the extraction of a tooth, and that the injury occurred in the county of Sonoma.
Section
The complaint contains no allegation as to the county wherein the injury occurred nor the place of residence of defendants. Defendants demurred and moved for a change of venue, filing their affidavit in support thereof alleging residence in the city and county of San Francisco. In opposition to the motion, plaintiff filed a counter-affidavit claiming the injury occurred in the county of Sonoma; the court thereupon refused to change the place of trial, and from that order defendants appeal. Defendants object to consideration by the court of this counter-affidavit setting up the county wherein the injury occurred. It is their contention that the court is limited to an examination of the complaint *730 and the affidavit of the moving party only, in determining the place of trial, and that plaintiff, in resisting a motion for a change of place of trial on the ground of residence, cannot file a counter-affidavit setting up facts showing the proper county to be the one in which the action was commenced.
[1] In an action where the court has jurisdiction of the subject matter, in the absence of affidavits showing to the contrary, the county wherein the title of the action shows it was brought is prima facie the proper county (Lakeside Ditch Co.
v. Packwood Canal Co.,
[2] We have found no authority holding directly that the court may consider counter-affidavits in resisting such a motion, but the practice has been accepted and applied as proper by the courts.
In Mahler v. Drummer Boy Min. Co.,
In Loehr v. Latham,
In Bachman v. Cathry,
In Woods v. Berry,
Appellants cite the case of Krogh v. Pacific Gateway Co.,
It is obvious from the foregoing citation that plaintiff cannot be permitted by affidavit to controvert an allegation set forth in his complaint in an effort to retain the place of trial, but we know of no rule that would prevent the showing, by affidavit, of facts outside the allegations set forth in the complaint that might assist the court in determining the proper place for trial.
Defendants also rely upon the case of Brady v. Times MirrorCo.,
"After the motion for change of place of trial had been made it was not competent for the court to entertain or make an order for the amendment of the complaint in the matter of parties, any more than in the matter of substantive averments. If, upon the case as it was then presented, the defendants were entitled to have their motion granted, they were entitled to have all judicial action in the cause determined in the superior court of their own county. Whether the plaintiff is desirous to amend his complaint so as to obviate the objections that may have been pointed out by demurrer, or in other respects that may render it impervious to attack, if such amendment can be made only upon the leave of thecourt, he must wait until after the case has been transferred, and make his application to that tribunal. This motion intercepted all judicial action in the case, and suspended the power of the court to act upon any other question until it had been determined." (Italics ours.)
The filing of a counter-affidavit is not a judicial act by the court nor does the right to file the same depend upon leave of court. Upon the filing of a motion to change the place of trial, the court is limited strictly to a consideration of that issue, but there is no limit as to the receipt by affidavit of evidentiary matter for a proper determination of that question.
Good pleading in a complaint requires a statement of the facts constituting a cause of action in ordinary and concise language. In the case before us the name of the county in which the injury is alleged to have occurred is not essential *733 to an allegation of the cause of action, and the pleader should not be penalized for omitting something that is only material when and if a motion for a change of place of trial is raised. Being a collateral matter the proper means of disposing of the motion is by affidavit and counter-affidavit and the pleader should not be compelled to anticipate a possible motion and embody allegations in his complaint that fulfill no other purpose than to meet a possible move to change the place of trial.
The court therefore properly received and considered the affidavits of plaintiff, showing the county of Sonoma to be the county wherein the injury to the person occurred, it not being in conflict with any allegation set forth in the complaint. The affidavit of plaintiff having been properly received and considered, the order refusing to change the place of trial was proper.
In the case of Gridley v. Fellows,
The order of the court refusing to change the place of trial is affirmed.
Thompson, J., and Plummer, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 22, 1933, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 20, 1933. *734