Goss v. Brown

NOURSE, J.

Plaintiffs appeal from an order granting defendant’s motion for a change of place of trial from the city and county of San Francisco, in which the action was commenced, to Stanislaus County, the county of defendant’s residence.

The moving papers are conceded to be in due and proper form and to entitle defendant to a change of venue, except that, concurrently with their service and filing, the defendant also filed a cross-complaint. The only point involved on appeal is whether defendant, by filing a cross-complaint with his answer at the time he filed the moving papers, waived his right to have the place of trial changed to the county of his residence.

Undoubtedly a failure to assert this right in the manner provided by section 396 of the Code of Civil Procedure would be deemed a waiver of the right. But defendant has strictly complied with the provisions of that section. It requires that a defendant file an affidavit of merits and make the demand for the change of the place of trial at the time he answers or demurs. This the defendant did. We do not think he lost the right which then arose under the statute merely because, in addition, he filed a cross-complaint. Section 442 “of the Code of Civil Procedure provides that a cross-complaint may be filed at the same time as the answer, or

by permission of the court

subsequently. As said, in a somewhat similar situation, in

Pittman

v.

Carstenbrook,

11 Cal. App. 224, 228-230 [104 Pac. 699, 702], “it would be a very harsh rule to hold that by following the statute the defendant waives a privilege conferred by the statute. . . . It is true that the privilege (to have the place of trial changed) may be waived impliedly as well as expressly, bui

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in order to do so there must be some act of the moving party tending to show his intent to invoke the jurisdiction of the coúrt of first instance for the trial of questions of fact or of law. The filing of the amended demurrer does not indicate this intention, although it might just as well have been filed after the cause was transferred.” In the case at bar the defendant, in order to protect his rights under the cross-complaint, was required to either file his cross-complaint with Ms answer or to trust to the discretion of the trial court to permit him to file it after the cause had been transferred. A similar situation arose also in