Smilie v. Smilie

Appeal—Beview of Órdeb Based XJpon Conflicting Affidavits.—In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review; if there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.

Id.—Affidavits in Favor of Successful Party—What Deemed to Establish.—As error is not presumed, and all intendments are in favor of the action of the lower court, it follows that the affidavits in behalf of the successful party are deemed to establish not only the facts directly stated therein, but also all facts which may reasonably be inferred or presumed from the direct and positive statements.

Id.—Divorce—Motion for Change op Venue—Residence op Depend-ant.—A motion by the wife, in an action against her for divorce, to change the place of trial from Alameda to Sacramento County, on the ground that she is a resident of the latter, is properly denied, where it appears that she left the home of the plaintiff in Alameda County, without his consent and without misconduct on his part, taking a portion of her personal effects with her, went to Sacramento County, where she remained only one day, then departed for a third county, taking with her all the personal effects she had brought from Alameda County, and did not return, to Sacramento County and there reside although she entertained an intention of so doing.