Story v. Christin

[485]

HOUSER, J.

The pertinent facts as they appear in the brief filed by the appellant, and with which statement of facts “respondents agree”, are as follows:

“The defendants filed a demurrer to the complaint, and a demand for a change of venue, accompanied by an affidavit of merits and a notice of motion. The motion was noticed for Monday, the 7th day of April, 1930, but was continued from time to time, and was finally heard on May 16, 1930. However, prior to the hearing upon said motion and upon the demurrer, to-wit, on April 28, 1930, the plaintiff served and filed an amended complaint, as of course, and this amended complaint was, therefore, on file on May 16, 1930, when defendants’ motion was heard.

“The motion for the change of venue was presented and argued on May 16, 1930, and the court on said date made an order denying the motion. Thereafter, to-wit, on or about "June 3, 1930, the defendants served and filed a demurrer to the amended complaint, a motion to strike and a new demand for a change of venue upon the same grounds, accompanied by an affidavit of merits and a notice of motion, in which notice was given that the defendants would on Monday, the 16th day of June, 1930, move the court for its order transferring said cause from the county of Los Angeles to the city and county of San Francisco.

“The said amended complaint, filed on April 28, 1930, was for the same cause of action stated in the original complaint, and, except for a slight change in paragraph II with respect to the parties, the only difference between the two complaints was that in paragraph V of the amended complaint the facts were pleaded a little more fully than in paragraph Y of the original complaint.

“The hearing on defendants’ second motion for a change of venue was continued from time to time and was finally heard on June 26, 1930, at which time the matter was argued and submitted, and on July 17, 1930, the court in effect reversed its previous position and made an order granting the defendants’ motion for change of venue from the Superior Court of Los Angeles county to the Superior Court of the city and county of San Francisco. It is from this latter order that the present appeal is prosecuted.”