Younger v. Spreckels

COOPER, P. J.

In this case the trial court denied the defendant’s motion for a change of the place of trial upon the ground that the place of residence of the defendant at the time of the commencement of the action was the county of Santa Cruz, and not the city and county of San Francisco.

In our opinion the court erred in its conclusion. The affidavits filed by defendant and in .his behalf stated positively that the defendant at the time the action was commenced was, and for many years prior thereto had been, a resident of the city and county of San Francisco, and that he has always during said times been registered as a voter in said city and county of San Francisco, and has never resided or

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been registered as a voter at any other place for the past forty-five years.

The only affidavit in opposition to the above is that of plaintiff’s attorney, which states that for more than twenty years defendant has been the owner and in possession of a piece of real property situate in Santa Cruz county known as the Aptos ranch; that there is upon said ranch a dwelling-house which, when occupied, is occupied by defendant and his family as a residence. “That said Spreckels remained and resided in and occupied said dwelling-house on said ranch at the time of the commencement of this action, and at the time he was served with summons herein he was served with such summons at said dwelling-house. That said defendant, at the time of making his affidavit of residence herein, made such affidavit while domiciled in said residence as aforesaid. . . . That for many years last past said Spreckels has been in the habit of frequently returning to said dwelling-house in said county of Santa Cruz in seasons of repose.”

The above affidavit on behalf of plaintiff does not show, nor does it state, that defendant was not a resident of the city and county of San Francisco at the time the action was commenced. Neither does it state that he was a resident of the county of Santa Cruz. The purport of the affidavit is that the defendant was residing in the dwelling-house on the ranch at the time the action was commenced. This is entirely consistent with the affidavit of defendant that among ■other properties he owns the Aptos ranch, and “that he has at various times sojourned on the same as a summer resort, but at no other times and for no other purposes.”