Modine v. Modine

JENNINGS, J.

The appeal herein is from an order of the superior court denying the motion of defendant

to

change the place of trial from Fresno County to Alameda County. The ground of the motion was that, at the commencement of the action, the defendant was and ever since has been a resident of Alameda County. The motion was based upon the demand and affidavit of the defendant. The action is for divorce on the ground of desertion.

The motion for change of place of trial was presented to the trial court upon affidavits. The affidavit of defendant contains the following statement:

“All the parties defendant in this action reside in the County of Alameda, State of California, and did so reside at the time of the commencement of this action and ever since.” Plaintiff’s affidavit filed in opposition to the motion for change of place of trial contains the following statement:

“That defendant has never at any time established a residence in any county other than the County of Fresno, State of California; that the legal residence of defendant has at all times been the legal residence of plaintiff, namely, the County of Fresno, State of California.”

There was thus presented to the court conflicting evidence upon the question of fact which the court had to determine, viz., the residence of defendant. The familiar rule that a finding of fact of a trial court will not he disturbed when the record discloses a conflict in the evidence relating to the finding applies as well when the evidence is presented in the form of affidavits as when it is produced by way of oral testimony

(McKenzie

v.

Barling,

101 Cal. 459,

[69]

462 [36 Pac. 8];

Doak

v.

Bruson,