Cannon v. McKenzie

CHIPMAN, P. J.

This is an action to recover the value of certain eighteen tons of broom brush and for board furnished defendant and labor done. The court gave judgment for plaintiff in the sum of $612.33, with interest, and costs and disbursements, amounting to $273.45. The action was commenced in Glenn county, and summons was served in said county on October 3, 1904. Defendant appeared by demurrer, and at the same time served his demand in writing and notice of motion that the place of trial be changed to the city and county of San Francisco. The motion was made on the affidavit of defendant, the demand in writing and the papers and records on file in the action. The motion was heard on October 31, 1904, and at the hearing plaintiff’s attorney filed an affidavit of plaintiff in reply to defendant’s said affidavit. The court denied the motion of defendant, to which exception was duly taken. Thereafter, on November 10, 1904, defendant served and filed his motion to vacate and set aside the order of the court made October 31st, and to grant defendant leave to renew his said motion. This latter motion was made on the alleged grounds: 1. That said order was given and

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made through inadvertence and mistake. 2. That the court was not fully advised as to defendant’s residence. 3. That the affidavit of plaintiff is false and untrue so far as it relates to defendant’s residence. 4. That defendant was taken by surprise at the hearing of said motion to change the same and was given no opportunity to reply to plaintiff’s said affidavit. 5. That there is no evidence before the court sufficient to justify said order.

With defendant’s said motion for leave to renew his former motion, defendant served and filed the affidavit of defendant and also the affidavit of Frank Moody, Esq., his attorney, appearing at the hearing of the first motion. It was stated in the motion that it would be heard upon the affidavits of defendant and said Moody ‘‘ and upon all the papers on file in this cause, and upon such other evidence as may be introduced at the hearing of this motion.” It was admitted that at the hearing of the first motion no objection was made by defendant to the introduction of plaintiff’s affidavit, “nor was any time asked by counsel for defendant to reply to said affidavit.” The court denied defendant’s motion to vacate said order of October 31, 1904, and denied the motion for leave to renew said motion to change the place of trial. “The court, in denying defendant’s motion, said that the additional showing of defendant for a change of venue should have been made in the original affidavit of defendant.” No exception appears to have been taken to the order or decision of the court denying defendant’s motion to set aside the first order, and to permit defendant to serve his motion for a change of the place of trial. Respondent makes the point that the second order is not appealable under section 939, Code of Civil Procedure, and therefore, not having been excepted to, cannot be reviewed. (Citing Code Civ. Proc., sec. 647;