Mills Sales Co. v. Gonzales

HOYT, J.

This is an appeal from an order denying a motion for a change of venue. On October 13, 1955, plaintiff filed a complaint against defendant containing two causes of action: (1) a cause of action on an alleged conditional sales contract, and (2) a common count for moneys due and owing. In due time the defendant filed a motion for change of venue supported by an affidavit which alleged his residence at all times pertinent to this action to be in the county of Los Angeles; that if any contract was entered into between plaintiff and defendant, said contract was made in the county of Los Angeles and that the goods mentioned in the purported contract were to be received by defendant in said county of Los Angeles. At the same time defendant filed an affidavit of merits, a demurrer and a memorandum in support of the motion and demurrer.

On

November 23, 1955,

defendant’s motion for change of venue was argued and taken under submission by the court with the request that counsel submit authorities. On De

*Supp. 901

comber 2, 1955, plaintiff filed an affidavit in opposition to the motion for change of venue. On December 12, 1955, defendant filed a notice of motion to strike said affidavit. On December 15, 1955, said motion was argued and submitted.

On December 27, 1955, the following minute order was entered: “All authorities having been presented, motions submitted; Motion to strike affidavit granted; Motion for change of venue granted.

“It Is Ordered that this action, together with all papers and files, be transferred to the Municipal Court for the Los Angeles Judicial District, County of,Los Angeles, State of California, upon prepayment of fees.”

On December 29, 1955, the following minute order was entered: “It Appearing To The Court That, through clerical error, the above-entitled action was ordered transferred to the Municipal Court for the Los Angeles Judicial District, County of Los Angeles, California, on the 27th day of December, 1955, and that this is incorrect, and erronneous; therefore,

“It Is Ordered that the order transferring said cause to Los Angeles Municipal Court, and entered in Minute Book No. 155, at page 2196, is hereby vacated and set aside.”

Thereafter, on January 9, 1956, the following minute order was entered: “Motion of defendant for change of venue and to strike affidavit on file herein heretofore heard and submitted; now called for decision.