Gordon v. Perkins

PRESTON, J.

This is an appeal from an order of the Contra Costa County superior court granting a change of venue from that county to the county of Madera.

The complaint, which was filed in Madera County, alleged damages in the sum of eight thousand dollars suffered by plaintiff because of defendant’s failure and refusal to perform his part of a certain written agreement respecting the sale by him to plaintiff of a forty-acre tract of land situate in said county. Defendant filed a demurrer to the complaint, together with notice of motion and demand for change of venue; also affidavit of merits in support thereof,

[185]

alleging also therein his residence in Contra Costa County. In opposition thereto plaintiff filed his counter-affidavit alleging that the convenience of witnesses and ends of justice would be promoted by retention of the cause in Madera County.

When in opposition to a motion for a change to the residence of defendant the convenience of witnesses is alleged, and- requires that an action be tried in the county where it was brought, the place of trial will not ordinarily be changed. This rule, however, is subject to the exception that, unless answer has been filed at the time the demand for change of venue is made, a counter-motion to retain the case on such ground will not lie, for the obvious reason that until the issues are settled the court cannot determine what testimony will be material.

(Cook

v.

Pendergast,

61 Cal. 72;

Dawson

v.

Dawson,

83 Cal. App. 119 [256 Pac. 491];

Pascoe

v.

Baker,

158 Cal. 232 [110 Pac. 815];

San Jose Hospital