Gardner v. Steadman

RICHARDS, J.

This is an appeal from an order changing the place of trial of the action from the city and county of San Francisco to the county of Los Angeles, upon defendant’s motion.

The said defendant was sued in the city and county of San Francisco upon a personal obligation and was duly served with process. "Within the time required by law he appeared by his attorney of record and demurred, and at the same time filed a demand for a change of the place of trial of the action to Los Angeles County. There was also filed at the same time an affidavit of residence and merits, which affidavit, however, was not sworn to by the defendant but by his wife, who deposed therein that the defendant was temporarily absent from the state of California, and therefore, for that reason, the affidavit was made by her; that the residence of the defendant was some time prior to and at the time of the commencement of the action and thereafter in the county of Los Angeles; that the affiant was familiar with the facts of the case, and had fully and fairly stated the same to Newton J. Skinner, the defendant’s attorney, and upon such statement had been advised by him and verily believed that the defendant had a good and substantial defefise to the action on the merits. Upon the hearing of the motion plaintiff objected to this affidavit, but upon what grounds does not appear in the record. However, the defendant thereupon asked and obtained leave to file an amended affidavit of residence and merits, and thereafter presented and filed an affidavit

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of merits and of residence sworn to by Newton J. Skinner, his attorney of record. The plaintiff, in opposition to the motion, presented a counter-affidavit as to the defendant’s residence, and upon the hearing the court granted the de-f fendant’s motion for a change of the place of trial, whereupon plaintiff prosecutes this appeal.

The first contention of the appellant is that the affidavit of merits made by the defendant’s wife and presented on his behalf on said motion was fatally defective and void, for the reason that it was not made by the defendant himself. Section 396 of the Code of Civil Procedure provides that the affidavit of merits upon motion for change of place of trial must be filed by the defendant. The supreme court, construing this section of the code in an early case, decided that this did not mean that the affidavit of merits must be made by the defendant, but upheld the sufficiency of an affidavit of merits made by the attorney.