Walsh v. Superior Court

BURNETT, J.

On August 16, 1919, petitioner Leyla M. Walsh filed in the superior court of Sacramento County a complaint for a divorce against her husband, Earnest E. Walsh. On September 16th the defendant appeared in the action and filed a general demurrer to the complaint, a demand for a change of the place of trial, with an affidavit of merits and of his residence in the county of Butte. At the same time the defendant filed in the court a written instrument purporting to be a motion for said change of the place of trial, referring therein to the fact that said demand and affidavit were filed therewith, and averring that he had “served upon the opposing counsel notice of this motion, which said notice sets forth that this motion will be called for hearing on the twenty-ninth day of September.” A copy of this instrument was served on the same day on the attorney for plaintiff. On the following day, September 17th, plaintiff in said action served upon the attorney for the defendant a notice in writing that on Monday, the twenty-second day

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of September, she would present a motion to said superior court “for an order awarding and allowing her, as such plaintiff, the sum of one hundred dollars as a reasonable and just sum with which to pay and defray the fees of her attorney for prosecuting said action and the further sum of twenty dollars” for other costs. This application came on for hearing on said date, whereupon defendant, through his attorneys, objected to its consideration by the court for the reason that there was pending and undetermined said motion for a change of venue. Thereupon the court, after reciting said objection made by the defendant and the fact that the other motion was pending before said court, “ordered that said objection of defendant to the hearing of said motion be and it is hereby sustained, and that said motion of plaintiff made before this court on said twenty-second day of September, 1919, for the payment of counsel fees and costs be and it is hereby abated until after the motion for change of place of trial has been heard and determined, upon the ground that the power of this court to hear or consider said motion for counsel fees and costs is suspended because of the filing herein by said defendant of said affidavit, demand, and notice of motion for the change of place of the trial of said action from Sacramento to Butte County, filed herein on September 16, 1919; that defendant is entitled to have all judicial action in the case determined by the superior court of the proper county.”