Henson v. Superior Court

THE COURT.

This is a petition for writ of mandate after the order of respondent court denying petitioner's motion for change of venue.

Petitioner is the defendant and cross-complainant in a di

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vorce action brought by her husband, the real party in interest, in the Tuba County Superior Court. In his complaint he alleged his residence to be in Tuba County. Petitioner in her cross-complaint alleged her residence to be in the City and County of San Francisco. Thereafter petitioner regularly moved the trial court to transfer the action to the superior court of said city and county. The motion was made under Code of Civil Procedure, section 397, subdivision 3 (convenience of witnesses), and under section 397, subdivision 5.

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The notice of motion was accompanied by petitioner’s affidavit of merits, included in which was a showing that five named witnesses were necessary to her case and would be called to testify in her behalf, four of whom resided in San ■Francisco and one in Solano County. An affidavit specified the testimony these witnesses would give. San Francisco was alleged to have been the place of marital domicile at the time of separation. Other facts were alleged in detail showing that inconvenience would occur if these witnesses were required to attend trial in Marysville. Real party in interest in his opposing affidavit averred that the marital domicile at time of separation. had been in Suisun, Solano County. His principal answer to petitioner’s affidavits was that a pregnant witness whom plaintiff was to call would have had her child, that all other witnesses petitioner had named were her relatives.

The husband in his affidavit did not name a single witness to be called on his own behalf, nor even that any witness would be called. While he contended that petitioner and the witnesses could travel to Marysville in one car, he did not answer petitioner’s allegation that neither she nor any of her witnesses owned a car.

On this showing the trial court denied the motion without comment. We issued an alternative writ at the hearing of which real party in interest did not appear.