125 Cal. 334 | Cal. | 1899
Action brought in Los Angeles county to recover commissions on sale of real property by plaintiffs as agents of defendant. Complaint was filed May 24, 1897. The matter is here on appeal from an order denying defendant’s motion for change of place of trial to Santa Barbara county. The proceedings as they appear from the transcript were as follows: On June 15, 1897, defendant made an affidavit of merits, and on the same day signed a demand directed to plaintiffs’ attorneys that the place of trial be changed, and on the same day defendant’s attorneys signed a notice directed to plaintiffs’ attorneys stating that defendant would, on June 30, 1897, at 10 o’clock A. M., or as soon thereafter as counsel could be heard, move for a change of the place of trial, and that the motion would be heard “upon affidavits, copies of which are herewith served upon you, and upon the demand to change the place of trial and the papers on file in the case,” et cetera. Defendant also, on the same day, served upon plaintiffs’ attorneys a general demurrer to the complaint. These papers were all duly served on plaintiffs’ counsel and filed. “On the twenty-eighth day of June, 1897, said demurrer came on regularly to be
The affidavit first served stated as follows: “I reside in the county of Santa Barbara, state of California, and have so resided for more than five years last past. I further say that I have fully and fairly stated the case in this cause to (naming his attorneys), and after such statement. I am by them and each of them advised and verily believe that I have a good and substantial defense on the merits to the said action.” This affidavit was sufficient. (Watkins v. Degener, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553.) The motion to change 'the place of trial was pending when the demurrer was passed upon, of which plaintiffs’ counsel had notice. The absence of defendant’s counsel on law day, when the demurrer was called, did not authorize the court to hear the demurrer. It was the duty of the court to hear and determine the motion before it could hear or determine the demurrer, and, if the defendant had been found to
I advise that the order denying defendant’s motion he reversed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order denying defendant’s motion is reversed.
Garoutte, J., Van Dyke, J., Harrison, J.