80 Cal. 559 | Cal. | 1889
Lead Opinion
After argument on hearing in Bank, we adhere to the conclusion reached in Department.
The action was commenced in the justice’s court in Alameda County to recover $155.38 for certain taxes alleged to have been paid by plaintiff for defendant. Defendant filed a verified answer, in which he averred the illegality of the taxes. This answer made it necessary, under section 838 of the Code of Civil Procedure, for the justice to suspend all further proceedings, and certify the case to the superior court of Alameda County,—which was accordingly done.
The superior court denied the motion, and defendant appeals.
The right to have a change of the place of trial of an action pending in a superior court upon the ground of residence is purely statutory; and it can be successfully asserted only by a party "who brings himself clearly within the statutory provisions on the subject. There is no such right on the ground of residence in a justice’s court.
It is the established law that under the provision of section 396 of the Code of Civil Procedure a motion for a change of venue after demurrer or answer is too late.
Appellant filed his answer in the justice’s court, and of course his demand for a change of venue in the superior court was after answer. It is not necessary to determine here what his position would have been if, wrhen he filed his answer in the justice’s court,—knowing that it would cause a transfer to the superior court,-—-he had then and there made his demand for a change. When he did make his motion he was inevitably in the position of one who makes such a motion too late. It is vain to say that he could not have made his motion any sooner in the superior court; he is still seeking a privilege which can come only from a compliance with a statutory provision with which he had not complied. If there was no way in which he could have complied with the statute, then the fair inference is, that the legislature intended that a motion for a change of venue should be allowed only in those cases which get into the superior court in the usual way,—where the complaint shows upon its face jurisdiction in that court,—and not in the few comparatively trivial cases where the amount sued for is within the jurisdiction of justices’ courts, and where the cases
Order affirmed.
Thornton, J., Sharpstein, J., and Paterson, J., concurred.
Dissenting Opinion
I dissent. When the verified answer was filed ousting the jurisdiction of the justice’s court that court could take no further steps in the case. It was the duty of the justice to immediately certify the case to the superior court, and that court then had “over the action the same jurisdiction as if it had been commenced therein.” (Code Civ. Proc., sec. 838.)
No affidavit could properly have been filed or motion made for a change of the place of trial in the justice’s court. If that court had jurisdiction of the case, it would have been improper, because a change to another county cannot be had from a justice’s court. If the justice had not jurisdiction it would have been idle to file the affidavit there, because that court had no power to act upon it. The defendant made the necessary affidavit as soon as the case reached a court having jurisdiction to act upon it, and before any act was done by him in that court, or any other step taken therein. This was using the utmost expedition in the assertion of his rights that could be reasonably required under the statute. It is well enough to say that the “right to a change of the place of trial is purely statutory, and a party must bring himself clearly within the provisions on the subject,” but it is quite another thing for the courts to so construe a statute as, in certain cases, to deprive a party of the right entirely, and thus in such cases to nullify the statute itself.
If the doctrine declared in the prevailing opinion is to obtain, all a plaintiff will have to do hereafter, in order to prevent a defendant from asserting his right to be tried in the county of his residence, is to bring his
Dissenting Opinion
We dissent. The case is a trifling one as to the amount of money involved, but it involves a principle which it is important should be settled correctly. Under section 395 of the Code of Civil Procedure, it is a matter of absolute right on the part of the defendant that he shall have the case tried in the county where he resides. This section is mandatory in its terms, and so plain as not to be open to construction, either as to its meaning, or as to the intention of its framers. On the other hand, section 396, cited in the leading opinion, is a mere provision of the mode of procedure to secure the right. The right itself being absolutely established by legislative enactment, if no mode of procedure had been provided for its enforcement, it would be the duty of the court to prescribe one. Section 396 has prescribed one for all the ordinary cases arising in the.course of practice; but here happens to come a case, as sometimes occurs in the conduct of human affairs, that the mode of procedure provided, if we follow the literal language of the statute, does not meet, and we have a case of a right without a remedy. In