County of Nevada v. Phillips

ADAMS, P. J.

Plaintiff filed this action against defendants, alleging that said defendants, by reason of their negligent and careless operation of a truck, had damaged a bridge maintained by plaintiff as a part of its public road system. Defendants Phillips and Boswell were served with summons in the county of Nevada and both answered. They denied the allegations of the complaint and alleged contributory negligence on the part of plaintiff. Said defendants then demanded a jury trial and plaintiff filed a memorandum to set the cause for trial. July 16, 1951, was set as the trial date, but prior thereto defendants noticed a motion for a

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change of venue to San Joaquin County on the ground that the action having been brought by a county it could not be tried in such county, “as provided for by section 394 of the Code of Civil Procedure.” An affidavit of merits was filed by one of the attorneys for defendants in which he alleged that said action had been commenced in and for the county of Nevada, but it contained no allegation as to defendants’ place or places of residence.

After argument the motion for a change of venue was denied by the court, whereupon defendants appealed from said order.

Nowhere in the record does it appear that either of the' defendants was not a resident of Nevada County. It is obvious that in the trial court and also in the opening brief of appellants their contention was that solely by reason of the fact that the county was a party to the action it was mandatory upon the trial court to transfer it to another county.

Section 394 of the Code of Civil Procedure provides:

“An action or proceeding

against

a county, or city and county, may be tried in such county, or city and county, unless such action or proceeding is brought by a county, or city and county, in which case it may be tried in any county, or city and county, not a party thereto.

“Whenever an action or proceeding is brought

by

a county, city and county, or city, against a resident of