Jaques v. Owens
Before: Burnett
Synopsis
Venue—Change of Place of Trial—Besidence of Defendant—Insufficient Affidavit—Proper Amendment.—Where the defendant made a proper demand to change the place of trial of an action to the county of his residence, but the affidavit was insufficient in merely stating his residence as of the time of making the affidavit, the court did not abuse its discretion in allowing him to amend the affidavit by stating his residence at the time of the commencement of the action and ever since.
Id.—Power of Court to Allow Amendment Under Section 473— . Liberal Construction—Belation Back to Original.—The court had the power to allow the amendment to the affidavit under section 473 of the Code of Civil Procedure, which is to be liberally construed, with a view to promote justice. The amended affidavit when allowed, related back to the time of the filing of the original affidavit; and it then furnished information upon the ground of the motion for a change of the place of trial, and supplied sufficient evidence to warrant the order granting it.
Id.—Presence of Parties in Court at Time of Motion upon Amended Affidavit—Amended Notice not Bequired.—The parties being in court when the amended affidavit was allowed, and the motion thereupon was heard, no amended or additional notice of the motion was required.
Id.—Formal Notice of Motion not Necessary—Begulation Under Bules of Court.—The statute does not require formal notice of the motion to change the place of trial. When the demand and application with demurrer were served and filed, the plaintiff had due notice of the application. Any additional notice would be regulated or determined by the rules of the court. The “motion” is the formal application in court for the order, in its regular course of procedure; and the court, in such regular course, has jurisdiction to hear and determine the motion.
BURNETT, J.
This is an appeal from an order changing the place of trial. At the time of serving and filing his demurrer. to the complaint, the defendant served upon plaintiff and filed a notice of motion for a change of venue, on the ground of his residence, together with an affidavit of merits and a demand in writing that the trial be had in the proper county. At the time and place specified in the notice the plaintiff appeared and opposed the demand and motion. The original affidavit of the defendant contained the clause: “I am the defendant in said action, and I reside in the city and county of San Francisco.” At the beginning of the hearing the court, over the objection of plaintiff, permitted the defendant to serve upon plaintiff and file an amended affidavit containing, in place of the last-quoted clause, the following: “I am the defendant in said action, and at the commencement of this action resided, ever since have resided, and I now reside in the city and county of San Francisco, State of California.” It is apparent that the first affidavit was defective in its failure to aver that defendant resided in San Francisco
at the time of the commencement of the action.
By the amendment this omission was supplied, and the sole question is whether the court rightly exercised its authority in permitting said amended affidavit to be filed.
Section 396 of the Code of Civil Procedure provides that “if the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein unless the defendant, at the time he answers or demurs, files an affidavit of merits and demands in writing that the trial be had in the proper county. ’ ’ As pointed out by respondent, two jurisdictional pleadings are therefore required to secure a change of the place of trial, to wit: A
demand in writing
and an
affidavit of merits.
The demand was in proper form and no objection was made to it. That the court has the discretion to allow the affidavit of merits to be amended has been directly determined in
Palmer & Rey
v. Barclay, 92 Cal. 199, [28 Pac. 226], and
Pittman
[116]
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