Sims v. Mains

PLUMMER, J.

This is an appeal by the defendants, E. P. Mains and Phoebe S. Mains, from an order denying their motion for change of place of trial. The allegations of the complaint are as follows:

“1. That the plaintiff is the owner and entitled to the possession of that certain personal property consisting of a six-room house situate in the southeast quarter of the northeast quarter of section 8, in township 6 south, range 10 east, M. D. B. & M., in the county of Merced, state of California;

“2.

That said personal property is of the value of $900.00;

“3. That the defendants, and each of them, claim some right, title or interest in and to said personal property, and that the claim of said defendants, and each of them, is without right, and that said personal property is in the present possession of said

defendants;

“4. That the plaintiff has demanded of the defendants, and each of them, the possession of said personal property, but that the defendants and each of them, wrongfully withhold .possession thereof from the plaintiff.”

The complaint then prays for possession of the property, or for $900, the value thereof, etc.

The defendants, E. P. Mains and Phoebe S. Mains, Maud B. Graybiel, A. Bethel Colwell and Cora M. Graybiel, appeared by filing a demurrer to the plaintiff’s complaint. At the time of the filing of the demurrer, the defendants, E. P. Mains and Phoebe S. Mains, filed a demand for a change of place of trial from the county of Merced to the county of San Diego, stating in the demand that the defendants, E. P.

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Mains and Phoebe S. Mains, are both residents of the county of San Diego, and that no one of the defendants stated in the complaint is a resident of the county of Merced.

Accompanying the demurrer and demand, and filed at the same time, was an affidavit of merits, a notice that the defendants, E. P. Mains and Phoebe S. Mains, would, at a day and time named in the motion, move the court for a change of place of trial to the county of San Diego. The affidavit filed by E. P. Mains and Phoebe S. Mains sets forth that the defendants, E. P. Mains and Phoebe S. Mains, are both residents of the city and county of San Diego; that none of the defendants named in the complaint were residents of the county of Merced at the time of the beginning of the action, and were not residents of the county of Merced at the time of filing the affidavit. The affidavit of the defendants, E. P. Mains and Phoebe S. Mains, as to the residence of other defendants is made upon information and belief.