Roberts v. Roberts

California Court of Appeal Feb 26, 1927 No. Docket No. 5724.Published

Before: Cashin

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Holding. The court held that the defendant's affidavit of merits was insufficient to support a motion for a change of venue because it failed to properly state the facts of the case and failed to adequately aver that counsel advised the defendant of a meritorious defense. Furthermore, the court presumed the trial court's implied finding regarding the effect of a prior judgment was correct.

Issues

Whether an affidavit of merits stating facts 'relating to said demand' satisfies the requirement to state 'the facts of the case.'
Whether an averment that a defendant was advised of a meritorious defense without specifying the advice came from counsel is sufficient.
Whether a trial court's implied finding regarding the effect of a prior judgment referenced in an affidavit should be presumed correct on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a statement “of all the facts relating to said demand” was not equivalent to a statement of “the case” or of “the facts of the case,” and the affidavit in this particular was insufficient”

“the affidavit is nevertheless defective in not stating in substance at least that he is advised by such counsel that he has a good and substantial defense on the merits.”

CASHIN, J.

An action was commenced in the superior court of Alameda County to recover on a written contract for the payment of money. The defendant, who is the appellant here, filed with his demurrer to the complaint a demand and motion for a change of venue to Los Angeles County, where, according to his affidavit of merits, he resides. The motion was denied, and the appeal was taken from the order.

It is alleged in the affidavit mentioned that defendant “fully stated all of the facts relating to said demand in this action to his counsel herein.” We are of the"opinion that a statement “of all the facts relating to said demand” was not equivalent to a statement of “the case” or of “the facts of the case,” and the affidavit in this particular was insufficient to meet the requirements of the rule established by the following cases:

Nickerson

California Raisin Co.,

61 Cal. 268;

People

Larue,

66 Cal. 235 [5 Pac. 157];

Palmer

Barclay,

92 Cal. 199 [28 Pac. 226];

Westover

Bridgford,

25 Cal. App. 548 [144 Pac. 313];

Hanna

Deroch, 52

Cal. App. 389 [198 Pac. 1006].

Appellant contends that the rule stated in the cases cited has been changed by the decision in

Hughes

Elliott,

167

[501]

Roberts v. Roberts

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CASHIN, J.

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