144 P. 313 | Cal. Ct. App. | 1914
This is an appeal by plaintiff from an order granting the motion of certain of the defendants for a change of the place of trial. *549
The action is one in claim and delivery; and at the time it was commenced in the superior court in the city and county of San Francisco, several of the defendants resided in the county of Siskiyou, and others of them resided without the confines of the state of California. The defendants residing in the county of Siskiyou filed a demurrer to the complaint, accompanying it with an affidavit of merits, and the demand required by section
The notice of motion was based upon the ground that none of the defendants at the time of the filing of the complaint or since were residents of the city and county of San Francisco. Section
The original affidavit of merits was defective in that it averred that the defendants had fully and fairly stated the matters of defense to the cause of action alleged by plaintiffs to their attorney, and that said attorney had advised them that they had a good and legal defense on the merits to the cause of action set forth in the complaint. (Nickerson v. CaliforniaRaisin Co.,
The venue of the amended affidavit of merits was laid in Siskiyou County, while it was sworn to before a notary public in the city and county of San Francisco. It is doubtless true that a notary is only authorized and empowered to administer oaths in the county for which he was appointed (Fairbanks,Morse Co. v. Getchell,
The order appealed from is affirmed.
Lennon, P. J., and Richards, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1914.