Smith v. Pelton Water Wheel Co.
Before: Beatty, Shaw
Synopsis
Place op Trial—Action Brought in Wrong County—Time to Demand Change.;—If a defendant desires a change of the place of trial on the ground that the action is brought in the wrong county he ought to move for, or at least demand, a transfer on his first ' appearance in the cause. And if it is made afterwards the applicant must explain any seeming lack of diligence on his part.
Id.—Denial op Change—Subsequent Motion—Lack op Diligence.— Where a corporation defendant at the time of its appearance presents a demand and notice of motion for a change of the place of trial on the ground that the county in which the action was brought was not the proper county, and accompanies it with affidavits by one of its officers, and such motion is denied, a subsequent motion for such change, made about seven months after-wards, on the same ground and based upon the original demand and additional affidavits, should be decided upon the conditions as they existed at that time, and not upon the conditions existing at the time of the original demand. And where the affidavits used on the subsequent motion, although showing the defendant to have been entitled to the change at the time of the original demand, state no facts that should not have then been known to the defendant’s officers, it will be presumed on appeal, in support of an order refusing the subsequent motion, that it was denied because of the lack of diligence displayed by the defendant in prosecuting it.
Opinion — Shaw
SHAW, J.
Appeal from an order denying a motion for change of venue. After the taking of the appeal William T. McArthur was substituted as plaintiff.
The order appealed from was made on March 4, 1904. The action was begun in July, 1903. On August 4, 1903, the de
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fendant appeared and filed a demurrer to the complaint, accompanied by a demand and notice of motion for a change of place of trial, and two affidavits of Edward L. Bray ton, vice-president of the defendant. The ground of the motion, as stated, was that the county of Los Angeles was not the proper county for the trial of the cause, inasmuch as the plaintiff was a corporation organized under the laws of this state, and its place of business and residence was the city and county of San Francisco. This motion was denied without prejudice on November 9, 1903.
On November 16, 1903, the defendant filed a second notice of motion for the change of venue, based on the prior demand and affidavits, and also on the affidavit of David Donzel, secretary of the corporation, additional thereto. The grounds of this motion were the same as before, with the addition that the contracts sued on were neither made in the county of Los Angeles, nor to be performed there, and that the obligation did not arise, nor the breach thereof occur, in that county. This motion was duly presented on briefs on November 20, 1903, and was denied by the court on December 23, 1903.
On January 15, 1904, the demurrer to the complaint was submitted to the court for decision, and on January 25, 1904, the court made an order overruling the demurrer and allowing the defendant ten days within which to answer. This time to answer was afterward extended by the court on the defendant’s application.
Before the time to answer, as extended, had expired, the defendant filed a notice of motion for leave to renew the former motion for change of venue. This notice stated that the motion was to be based on the affidavits before filed, on two other affidavits by the same parties, and upon the former demand and the papers on file in the case. The ground of the motion for leave to renew was that the former motion had never been heard upon the merits. The notice also stated that the motion for change of venue would be made upon certain grounds set forth at length therein, which were in substance the same as set forth in the notice of November 16, 1903. The new affidavits of Brayton and Donzel stated no additional facts in support of the motion for leave to renew, nor did they contain any new matter relating to the grounds of the application for a change of venue. They merely stated
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