Bradley v. Davis

ANGELLOTTI, J.

This is an appeal from an order denying defendant’s motion for a change of place of trial of the action from the superior court of El Dorado County to the superior court of Sacramento County, made upon the ground that the defendant was a resident of Sacramento County at the time of the commencement of the action.

[268]

The motion was heard, submitted, and determined solely upon affidavits. These affidavits were conflicting upon the question of the place of residence of defendant at the time of the commencement of the action. The affidavits of plaintiff and G. S. Estey were positive and unequivocal to the effect that the defendant was then a resident of El Dorado County and there is nothing in either affidavit from which we are authorized to infer that the affiants did not have personal knowledge of the facts as to which they swore positively and without qualification. Under these circumstances, notwithstanding the fact that defendant’s counter affidavit is very clear and specific, it must be held that there was a substantial conflict on the question of residence. It has heretofore been held, and we think correctly, that the mere fact that one is registered in a certain place and has voted therein is not conclusive evidence upon the question of his domicile.

(Quinn

v.

Nevills,

7 Cal. App. 231, [93 Pac. 1055].)

Under section 395 of the Code of Civil Procedure, defendant was entitled as a matter of absolute right to have the action transferred to Sacramento County if he resided therein at the time of the commencement of the action. The question whether he did so reside in Sacramento County was, however, one to be determined primarily by the court in which the action was instituted and to which the motion for the change of place of trial was addressed, and it is well settled that the finding of a trial court upon this question of fact will not be disturbed on appeal where the evidence in respect to residence is conflicting, even though the whole evidence upon the question is contained in affidavits.

(Hastings

v.