Pascoe v. Baker

SLOSS, J.

Appeal by defendant from an order changing the place of trial.

The action is for damages for personal injuries. It was commenced in the city and county of San Francisco. The defendant appeared and demanded a transfer to the county of Los Angeles, in which he resided. His motion to that end was granted. Thereafter the plaintiff moved the superior court of Los Angeles County for an order re-transferring the action to the city and county of San Francisco, basing his application on the ground of convenience of witnesses. The present appeal is from an order granting this motion.

The appellant makes four points for reversal.

1. It is urged that the plaintiff delayed the making of his motion for so long a period as to deprive him of the right to have the cause removed. A motion for retention or remand on the ground of convenience of witnesses could not be made" before the joining of issues of fact

(Heald

v.

Hendy,

65 Cal. 321, [4 Pac. 27];

McSherry

v.

Penn. C. G. M. Co.,

97 Cal. 637, [32 Pac. 711]). It appears that the answer was filed on December 1, 1908, and that plaintiff’s motion was presented on March 5, 1909. The hearing had, however, been continued to the last-named date, and had been noticed, by notice dated February 9, 1909, for the nineteenth day of February, 1909. The delay was, therefore, a few days more than two months. It is, no doubt, the general rule, that motions for change of

[234]

venue should he prosecuted with diligence. (4 Ency. of Plead. & Prac. 421;

Cook

v.

Pendergast,

61 Cal. 72, 79;