Dawson v. Dawson

YORK, J.

Before an issue of fact had been joined, defendants moved, under section 395 of the Code of Civil Procedure, to have the trial of the action transferred to the county of Los Angeles, on the undisputed fact that they were residents of the county of Los Angeles at the time of the commencement of the action, and were not at the time of the commencement of the action, or at the time of the hearing, residents of Imperial County. An objection was

[120]

made by the plaintiff to the removal of the cause on account of alleged convenience of witnesses, under subdivision 3 of section 397 of the Code of Civil Procedure.

The question is therefore presented whether or not such an objection would be well taken or could be considered before an issue of fact has been joined. No answer has yet been filed, and until the trial court could be properly informed of the facts to be established at the trial, or until it could be determined from all the pleadings of the case whether witnesses, and the evidence to be given by them, as set forth in affidavits presented to support such objection, would be even necessary or material, a transfer on account of convenience of witnesses could not be granted.

In the case of

Cook

v.

Pendergast,

61 Cal. 72, particularly at page 80, the supreme court says: “Independent of the express provision of the statute, the superior court ought not to be called on, before the issues of fact have been joined, to decide that the convenience of witnesses will be promoted by a change of the place of trial. . . . The Code of Civil Procedure does not require a decision which, in the nature of things, must ordinarily be premature.” See, also,

Wong Fung Hing

v.

San Francisco etc. Funds,

15 Cal. App. 537, 538, 539 [115 Pac. 331, 332], where the court says: “It clearly appears that defendant was a resident of San Francisco at the time of the commencement of the action, and, hence, upon demand duly made therefor, was, in the absence of a counter-showing, entitled to an order changing the place of trial to the county of its residence. (Code Civ. Proc., sec. 395.) Assuming, then, that notwithstanding such right on the part of defendant, the court might, nevertheless, upon a proper showing that the convenience of -witnesses would be subserved thereby, retain the ease for trial in Los Angeles county, the question presented for determination is whether the facts set forth in the affidavits presented by plaintiff justified the order made by the court. Subdivision 3 of section 397, Code of Civil Procedure, provides that the court may, on motion, change the place of trial, ‘when the convenience of witnesses and the ends of justice would be promoted by the change.’ Manifestly, until an answer is filed and issues of fact joined, it cannot be said a production of witnesses upon a trial will be required. Hence, a motion either to change the place of trial