Wong Fung Hing v. San Francisco Relief & Red Cross Funds
Before: Shaw
Synopsis
Venue—Change of Place of Trial—Residence of Defendant—Issues Joined—Convenience of Witnesses—Materiality to Issues. No question of convenience of witnesses can arise where a change of the place of trial is sought upon demurrer filed; and if the same change is sought upon issues joined and the change is resisted for the convenience of witnesses, it is the duty of the court to disregard the testimony of any witness for that purpose whose testimony is not material to any issue of fact raised. The plaintiff cannot successfully resist defendant’s motion, where his affidavits show that the witnesses whose convenience is sought to be subserved would not be material or competent upon the trial of the issues involved; and an order retaining the cause based upon such affidavits must be reversed.
Id.—Action for Conversion of Goods—Denial of Complaint—Absence of Affirmative Issue—Immaterial Witnesses.-—Where the plaintiff brought an action in Los Angeles county for the conversion of goods by a corporation having its principal place of business in San Francisco which demanded a change of the place of trial after answer filed, which merely took issue upon the allegations of the complaint, without presenting any affirmative matter, and filed an affidavit of merits, affidavits of witnesses for the plaintiff, whose testimony related solely to the nondelivery and forgery of the indorsement of a check, not made any issue in the case, cannot justify the retention of the cause for convenience of witnesses.
SHAW, J.
Defendant appeals from an order of court denying its application for a change of the place of trial
[538]
from Los Angeles county, where the action was commenced, to the city and county of San Francisco.
Defendant is a corporation having its principal place of business in the city 'and county of San Francisco. No demurrer was interposed to the complaint. With its verified answer, merely denying all the allegations of the complaint, defendant filed an affidavit of merits, in due form and sufficient in substance, showing that defendant was a corporation having its principal place of business in the city and county of San Francisco, and accompanied by a demand in writing, therewith filed, demanding that the place of trial be changed from the county of Los Angeles to the city and county of San Francisco, upon the grounds, first, that the city and county of San Francisco, and not the county of Los Angeles, was the proper county wherein said action should be tried; and, second, that the convenience of witnesses would be promoted by such change. While defendant’s application was being heard, and before the final disposal thereof, plaintiff moved that the case be retained in Los Angeles county for trial, upon the ground of the convenience of witnesses, and filed affidavits in support of such motion. Upon the final hearing, the court made an order that the motion for a change of place of trial be denied, and that the trial of the ease be retained in Los Angeles county, for the reason that the convenience of witnesses would be promoted by such retention.
It clearly appears that defendant was a resident of San Francisco at the time of the commencement of the action, and, hence, upon demand duly made therefor, was, in the absence of a counter-showing, entitled to an order changing the place of trial to the county of its residence. (Code Civ. Proc., sec. 395.) Assuming, then, that notwithstanding such right on the part of defendant, the court might, nevertheless, upon a proper showing that the convenience of witnesses would be subserved thereby, retain the ease for trial in Los Angeles county, the question presented for determination is whether the facts set forth in the affidavits presented by plaintiff justified the order made by the court. Subdivision 3 of section 397, Code of Civil Procedure, provides that the court may, on motion, change the place of trial,, “when the convenience of witnesses and the ends of justice would be promoted by the change. ’ ’ Manifestly, until an answer is filed and
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