Hanovia Chemical & Manufacturing Co. v. Keller

PLUMMER, J.

— On February 20, 1926, the plaintiff began this action to recover from the defendant the sum of $322.88, balance alleged to be due on certain promissory notes. On the thirtieth day of March, 1926, the defendant filed a demurrer, a demand for a change of place of trial, and an affidavit of merits. The demand, omitting the title, is in the following words: “I, the undersigned, defendant, in the above entitled Action, hereby demand that the place of trial of this cause be changed to the proper county, to-wit: the County of San Mateo, State of California. ’ ’ (Signed by defendant.)

The affidavit of merits, omitting the title, reads as follows:

“Charles Keller, being first duly sworn, deposes and says: That he is the defendant in the above entitled action:

‘ ‘ 1. That said action was commenced on or about the 20th day of February, 1926.

“That I have fully and fairly stated the case in this cause to E. J. Talbott, attorney at law, whose office is at number 704 Market street, San Francisco, my counsel, and after such statement I am by him advised and verily believe that I have a good and substantial defense on the merits to the action.

“That I now reside and did reside at the commencement of this action in the County of San Mateo, State of California. ’ ’

No notice of motion for the removal of said cause was ever given or filed by the defendant, nor was any motion ever made by the defendant invoking the action of the court in relation to the removal of said cause. The ease remained

in statu qua

until the seventeenth day of May, 1926, when the demurrer interposed by the defendant was overruled by the trial court and an order made purporting to deny the motion for a change of venue, the record showing that neither the defendant nor his counsel were in court. Under the rules of the court, the demurrer was placed upon the calendar for hearing on Monday, April 5th, but no action was taken thereon until, as above stated, on the seventeenth day of May. The appeal is from the order purporting to deny the defendant’s motion for a change of venue.

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