Wood, Curtis & Co. v. Herman Mining Co.

CHIPMAN, C.

Certain four defendants appeal from an order denying their motion to change the place of trial from Sacramento County to Alameda County, the place of their alleged residence. The action is to recover for merchandise alleged to have been sold and delivered by plaintiff and certain assignors of plaintiff to defendants. Summons was duly served on defendants Henshaw, H. A. Tubbs, and Greenwood, on April 7, 1902, and defendant Susan A. Tubbs voluntarily appeared, together with the other defendants last above named, and joined with them in the proceeding herein. On April 28, 1902, appellants (defendants last above named) served on plaintiff’s counsel written demand and notice of motion for a change of the place of trial, on the ground that none of the defendants resided in the city of Sacramento at the commencement of the action, and on the same day served on said counsel and filed a demurrer to the complaint, also an affidavit on motion to change the place of trial, also a written notice of motion to strike out parts of said complaint, all of which appear in the bill of exceptions. The motion to change the place of trial came on regularly to be heard on May 9, 1902, at the hour of 1 -.30 p. m. and said motion to strike out part of plaintiff’s complaint was on the calendar for hearing at said time, but was not heard. At the hearing, Grove L. Johnson, Esq., stated that he represented the defendants Byrne, Fitzpatrick, and Pratt, and that said defendants had appeared and answered, and that no objection was made by said defendants represented by him to the trial of said action in the county of Sacramento, and said last-named defendants,

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and each of them, objected to and resisted the motion to change the place of trial. Mr. Johnson further objected on the ground that none of the moving papers upon the motion to change the place of trial had been served upon him as attorney for his said clients (defendants) and that their answer “was filed on the same day herein upon which the motion for a change of the place of the trial was filed herein, and the said answer was the first appearance of said defendants in said action.” Counsel for appellants were for the first time apprised of the matters stated by Mr. Johnson at the time he made his statement. The affidavit in support of the motion showed that the moving parties resided in Alameda County, and were not residents of Sacramento County, and it avers “that the affiant and the other defendants hereinabove named have each and all fully and fairly stated the. facts of the case to (naming their attorneys), who upon such statement advised each and all of the defendants hereinabove named that they have, and each of them has, a good and substantial defense upon the merits of the action to this, which each and all of the defendants above named believes to be true.” Plaintiff objected to the hearing of the motion, on the ground that by filing a motion to strike out material parts of the complaint defendants had thereby waived their right to demand a change of the place of trial; also, because defendants Fitzpatrick, Byrnes, and Pratt had answered to the merits of the complaint for trial in the superior court of Sacramento County; also, that defendant Crow had filed written protest and objection to granting any change of place of trial; also, because the affidavit of merits by defendant Tubbs “attempts to set forth what was in the minds of his associate defendants in said motion for change of place of trial,” and the affidavit does not show compliance with the code provisions.