Juneau v. Juneau

[15]

GRIFFIN, J.

It appears from a bill of exceptions settled and allowed by the trial court that on June 15, 1939, plaintiff Edward A. Juneau filed his complaint for divorce. Summons was duly issued. On June 21, 1939, an order for publication of summons was signed. Service by publication was duly made. A copy of the complaint was mailed to appellant Bertha G. Juneau at her last known residence in Detroit, Michigan, on September 2, 1939. On October 2, 1939, she received the copy so mailed. On October 3, 1939, an interlocutory decree of divorce by default was granted respondent. On October 24, 1939, appellant filed a motion to set aside that decree. On October 31, 1939, the motion was granted on condition that appellant file her answer forthwith. On the same day she filed her answer she also filed a cross-complaint together with a notice of motion for change of venue based upon an affidavit, setting forth as the ground for such change that at all the times herein mentioned she “was, has continued, and still is” a resident of Los Angeles County. Respondent filed an opposing affidavit alleging that “at the time of the filing of this action ... he did not know nor was not able to find out the whereabouts of the defendant-cross-complainant and had no knowledge or information that she was in Los Angeles County or any information as to where she was at the time. And further, your affiant does not believe that the defendant-cross-complainant was, or is, a permanent resident of Los Angeles County”. He also set up certain facts which would indicate that he and his witnesses would be greatly inconvenienced by the change of venue. Upon considering the affidavits of the parties and after hearing argument thereon, the court made its order denying the motion for change of venue. Appeal was taken by appellant from that order.

Appellant now contends that the affidavit filed by the respondent did not constitute a sufficient counter-affidavit, or make a sufficient showing to retain the cause in San Diego County on the grounds of convenience of witnesses or the promotion of the ends of justice, or on any other grounds, and that the court erred in denying the motion; and that respondent’s purported denial of appellant’s claimed place of residence was not sufficient to raise a conflict, citing

McKune

v.