San Joaquin & Kings River Canal & Irr. Co. v. Stevinson

RICHARDS, J.,

pro tem.

This is an appeal from an order granting the plaintiff’s motion for a change of place of trial of this action from the county of Merced, upon the ground ■ that the said plaintiff could not have a fair and impartial trial in said county of Merced. The plaintiff’s notice of said ■motion stated that “said motion will be made upon the records, papers, and files in the above-entitled action and upon the affidavit of J. F. Clyne, which is attached to this notice. ’ ’ The defendant, in resisting said motion, presented and filed twenty-two counter-affidavits. In granting said motion the court made the following order: “For reasons given in the opinion of the court filed herein this day, motion of plaintiff for change of- venue is granted and action is transferred to the county of Mariposa, State of California.” The bill of exceptions prepared and settled for the purpose of an appeal from said order contains the plaintiff’s said notice of motion for change of place of trial, the affidavit of J. F. Clyne attached thereto, the counter-affidavits presented and filed by

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the defendant at the hearing upon said motion and in opposition thereto, the statement that “at said hearing, after the introduction of said affidavits the motion of plaintiff was argued and thereafter submitted to the court, and the court on the 10th day of January, 1917, made the following order”; then followed the order of the court above quoted, after which was the statement “that said order was made during the absence of the plaintiff and its attorneys from the court and the defendant excepts thereto: That no other or further proceedings were had upon said motion.” It was stipulated by counsel for the respective parties that “the foregoing bill of exceptions is correct and may be settled. ’ ’ This bill of exceptions, accompanied by the notice of appeal, constitutes the transcript on appeal herein. The first contention of the appellant to be noticed upon the consideration of this appeal is its claim that this court, in the determination of its merits, is confined to the affidavits filed by the respective parties and presented upon the hearing on said motion, the basis of the appellant’s contention in this regard being that the bill of exceptions shows that the only evidence introduced before the court upon the hearing of said motion was that of said affidavits, and affirmatively states “that no other or further proceedings were had upon said motion.” In answer to this contention the respondent insists that in its notice of said motion it was stated that the same would be made “upon all the records, papers, and files in the above-entitled action,” and that it was not necessary upon the hearing of said motion to introduce before the trial court said papers, records, and files in said action, for the reason that the trial court took judicial notice of its own papers, records, and files, and, hence, that the introduction of these in evidence would have been an idle and unnecessary formality. The difficulty presented to this court in attempting to determine this initial inquiry in the case is twofold, arising first out of the meagerness of the record before us, by reason of the entire absence therefrom of the pleadings, and, also, of any and all proceedings preceding the making of the motion for change of place of trial, except as glimpses of these pleadings and proceedings may be afforded us in the contents of the affidavits filed in support and resistance of said motion; and, arising second, out of the fact that whatever judicial notice the trial court may have been entitled to take, and may have taken, of its own “records, papers, and