Sherman v. Reynolds

McLUCAS, J.,

pro

tem.

Appeal by defendants from a judgment denying defendants’ motion for change of venue from the county of Imperial to the county of Los Angeles.

The complaint was filed June 29, 1923. It alleged three

[405]

causes of action; the first was for vegetables and produce sold and delivered, the second for fruit and produce sold, and the third for labor performed. The last two claims were assigned to plaintiff. Defendants filed an affidavit of merits and written demand that the trial be had in Los Angeles County. In support of their motion for change of venue defendants made affidavit that at the time of the filing and commencement of the action on June 29, 1923, the defendants and each of them resided in the county of Los Angeles, had so resided for some time prior to the commencement of the action, and have ever since continuously so resided and do now reside in the county of Los Angeles. Plaintiff filed a counter-affidavit that on May 22, 1923, plaintiff and defendants entered into a agreement for the sale by plaintiff to defendants of certain vegetables, melons, and fruit then growing, and that the account sued upon is due under the terms of said contract; “that under the terms of said contract the defendants were to take and hold possession of said premises for the purposes thereof”; that on May 22, 1923; the defendants moved upon and took possession of the premises and resided upon the same; that defendant Reynolds, together with his wife, lived on said premises up to and including June 19, 1923; that defendant Aschenbrenner, together with his wife, resided thereon up to and including July 12, 1923; that said defendants and each of them moved certain of their furniture and household goods upon said premises and did live upon said premises as their home during all of the time aforesaid. Defendant Reynolds filed a reply affidavit stating that he did not at any time, and does not now, reside in the county of Imperial; that it is not true that defendant moved upon or resided upon the premises located in the county of Imperial; that defendant went to the county of Imperial on June 2, 1923, for the purpose of harvesting a crop on premises leased by him, and returned to the county of Los Angeles on June 10, 1923; that defendant again went to Imperial County for the purpose of harvesting said crops, but not for any other purpose, on June 13, 1923, and returned to Los Angeles County on June 18, 1923; that defendant did not move upon said premises or any premises in the county of Imperial for the purpose of establishing a residence, but only for the purpose of harvest