Gallo v. Boyle Manufacturing Co.

THOMPSON, J.

—The plaintiffs have moved to dismiss the appeal in this ease on the ground that the issues have become moot. The plaintiffs filed suit in Stanislaus County for damages for a breach of the warranty of sale of certain casks containing wine, “f.o.b. Modesto”. The defendant is a corporation. It moved for a change of venue to Los Angeles County, which is its principal place of business. At the same time a demurrer to the complaint was filed. The motion was made under the provisions of section 395 of the Code of Civil Procedure and denied, pursuant to article XII, section 16, of the Constitution, on the theory that the contract was to be performed in Stanislaus County. The Constitution provides in that regard:

“A corporation or association may be sued in the county where the contract is made

or is to be performed,

or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other oases.”

At the time the motion for a change of venue was denied the defendant’s demurrer to the complaint was also overruled. From the order denying the change of venue, the defendant promptly appealed. Subsequent to the perfecting of the appeal, to preserve its legal rights the defendant filed an answer and cross-complaint. Pending the appeal, at the time the cause was set for trial, by leave of court first ob-

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tamed, the defendant filed an amended answer and cross-complaint.

On this motion to dismiss the appeal it is contended the appellant waived its right to a change of place of trial to Los Angeles County by amending its answer and cross-complaint after the appeal was perfected, and that the issue to be determined on appeal thereby became moot. There is no merit in this motion to dismiss the appeal.

(Goss

v.

Brown,

64 Cal. App. 381 [221 Pac. 683].) In the ease cited, in which a hearing was denied by the Supreme Court, under similar circumstances, it was held the subsequent filing of an answer and cross-complaint does not constitute a waiver of the right to change the place of trial. Quoting with approval from the case of