Benjamin v. Benjamin

[368]

WHITE, P. J.

On July 2,1953, plaintiff filed an action for divorce in the Superior Court of Los Angeles County. Defendant was served with summons and complaint in the county of Riverside on or about August 7, 1953. Subsequently, defendant made a motion to change the place of trial to Riverside County. No counter affidavits or other documents were filed by plaintiff in opposition thereto. At the hearing on defendant’s motion held on August 21, 1953, the testimony of witnesses offered by plaintiff was taken, and defendant’s motion was denied.

On September 23, 1953, the latter filed a motion to vacate the aforesaid order denying the motion for change of venue, and also filed a motion to make a new order changing the place of trial to Riverside County. Contemporaneously therewith, defendant filed a new affidavit of merits accompanied by some 23 affidavits of persons who were not parties to the litigation. At the subsequent hearing on the last-mentioned motions, both were denied. Prom the order denying the- aforesaid motions defendant prosecutes this appeal.

As to the first of the foregoing motions the following will serve as an epitome of the factual situation presented to the court. It is agreed that the parties hereto were married in Chicago, Illinois, on December 22, 1948. Two years later they moved to Palm Springs, in Riverside County, California, and continued to reside there until the date of their separation on January 26, 1953. Subsequent to the separation plaintiff moved to Los Angeles. Defendant continued to reside with her mother in the residence at Palm Springs, in which both parties herein resided until the aforesaid separation.

Defendant testified that she rented an apartment in Los Angeles on June 10, 1953, pursuant to the advice of her physician that she avoid the extreme heat in Palm Springs during the summer months. That the apartment was a furnished one, rented on a month-to-month basis. That she removed some of her clothing to the Los Angeles apartment but retained the greater portion thereof at her Palm Springs address. She testified that she had a telephone installed at the apartment listed in her name. That she received no mail at the Los Angeles address except the telephone bill and a package of letters forwarded to her from Palm Springs.