Sowers v. Sowers

[581]

KNIGHT, J.

Defendant appeals from an order denying his motion for change of place of trial based on the ground of nonresidence, and granting plaintiff’s counter-motion to retain the case on the ground of convenience of witnesses.

The action was brought in Los Angeles County by defendant’s divorced wife to obtain a judgment providing for the maintenance and support of their two minor, children, whose custody had been theretofore awarded to plaintiff by a divorce decree granted in the state of Arizona, but which contained no provision for their maintenance and support. The complaint in the present action was filed on October 3, 1929. Summons was served on defendant in Sacramento, where he resided; and on October 28th he filed notice of motion for change of place of trial, a demand therefor and an affidavit of merits. Two days later, to wit, on October 3'0th, he filed his answer to the complaint, and on November 1, 1929, plaintiff filed her counter-motion, accompanied by a supporting affidavit, to retain the trial of the action in Los Angeles County. On the following day, November 2d, defendant filed a demurrer to the complaint. The motions and the demurrer were heard on November 13, 1929, at which time defendant’s motion was denied, his demurrer was overruled, and plaintiff’s counter-motion was granted.

According to .the well-established rale, if a defendant, moving for a change of place of trial on the ground of nonresidence, files an answer to the complaint, the plaintiff in the action is entitled to interpose and have determined in the court in which the action is filed a counter-motion to retain the trial of the action in that court, the reason for the rule being that upon filing the answer the facts of the case are at issue and the court is in a position to determine what testimony will be material to those issues.

(Sheffield

v.

Pickwick Stages,

191 Cal. 9 [214 Pac. 852] ;

Gordon

v.

Perkins,

203 Cal. 183 [263 Pac. 231] ;