Woods v. Berry

THOMPSON (R. L.), J.

This is a motion on the part of respondents to affirm an order denying defendants’ application for a change of venue.

The complaint was brought against the principal and sureties on an indemnity bond for the value of labor performed and materials furnished by the plaintiffs pursuant to a contract for the repairing of a hotel building at Red-ding. The defendants filed a motion for change of venue based upon an asserted residence in San Francisco. The plaintiffs filed a counter-motion to retain the action for trial in the county of Shasta. Affidavits and counter-affidavits were filed by the respective parties on both motions. Upon the hearing of these motions the court denied defendants’ application for a change of venue and granted plaintiffs’ motion to retain the action for trial in Shasta County. A notice of appeal was filed in due time and a demand for a transcript was made pursuant to section 953a of the Code of Civil Procedure. The clerk prepared and personally certified to the proceedings, including therein the complaint, counter-motions, demands and accompanying affidavits of the respective parties, the minute order of the court disposing of these motions, the notice of appeal, demand for a clerk’s transcript and the clerk’s certificate of

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proceedings. It does not appear from this record that the defendants either demurred to the complaint or filed an answer thereto. No certificate of the trial judge to the accuracy of the proceedings or the affidavits appears. The transcript, certified to by the clerk alone, was filed in this court June 7, 1929. Appellants’ opening brief on appeal was filed August 7, 1929. After extension of time procured for the filing of respondents’ brief, this motion was filed by it March 15, 1930, to affirm the orders of the trial court denying defendants’ application for a change of venue and granting plaintiffs’ counter-motion to retain the action for trial in Shasta County for the convenience of witnesses.

Assuming that the record which is before this court “constitutes a full, true and correct copy of the judgment-roll,” as the clerk has certified that it does, we must conclude that no answer was filed since none appears in the transcript. The issues of the cause were therefore not joined and it was impossible to determine what witnesses would be required to attend the trial in Shasta County. Until an answer is filed and the issues are joined a court may not lawfully determine the place of trial based upon the convenience of witnesses for the obvious reason there is no possibility of then ascertaining what witnesses may be required.