Refrigeration Discount Corp. v. Superior Court

THOMPSON, J.

This is a petition for a writ of prohibition to restrain the Superior Court of Tehama County from proceeding to try a cause after having formally made and entered its order granting a motion for change of venue, and thereby transferring the cause to Los Angeles Comity.

No answer to the petition in this proceeding was filed. The complaint in the original action which was filed in Tehama County is not before this court. However, it does appear from the petition that an action was filed in Tehama County, entitled “Chauncey T. Burgess, as Trustee for Jack Kerr, under assignment for the benefit of creditors, Plaintiff, v. Re

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frigeration Discount Corporation, a corporation, and T. B. McQuade, Defendants,” to which complaint the defendants filed a demurrer. At the same time, this petitioner moved the court for a change of the place of trial, under sections 396 and 397 of the Code of Civil Procedure, to the county of Los Angeles, which is the residence and principal place of business of the defendant corporation. The motion was duly presented upon written notice and demand, together with an affidavit of merits as required by law. An opposition to the motion was filed by plaintiff. The motion was heard upon affidavits. Petitioner’s affidavit avers facts showing that it is a foreign corporation with its residence and place of business at Los Angeles as the proper place of trial, and that the other defendant, T. B. McQuaid [named in the suit as T. B. McQuade] is a resident of Alameda County. Plaintiff’s affidavit in opposition to the motion avers that the obligations upon which the complaint was based “are due and payable in the County of Tehama.” After hearing and arguments by respective counsel, the court made and entered a minute order on January 6, 1949, granting the motion to transfer the cause to Los Angeles County. Subsequently, upon notice to the corporation, on motion of the plaintiff to reconsider and vacate the order transferring the case for trial to Los Angeles, the court, over written opposition and protest of this petitioner on the ground that the Tehama court had lost jurisdiction of the cause, made an order vacating the order for a change of place of trial on the ground that it “is void upon its face,” and thereupon denied the motion for change of venue. The order is not void upon its face, or at all. This petition for a writ of prohibition was filed in the Supreme Court on February 2, 1949, and transferred to this court on February 10th.