Ludwig v. Harry

HAYNES, C.

—This action was brought in the superior court of the county of Placer. The summons,was served upon the defendant in the county of Tuolumne, and the defendant in due time filed a demurrer to the complaint, and an affidavit of merits, and moved -the court to change the place of trial to said last-named county upon the ground that said county of Tuolumne was his place of residence, as shown by his affidavit filed therewith. The plaintiff filed her affidavit in opposition thereto, and the defendant filed several additional affidavits tending to sustain and corroborate his .original affidavit. Upon the hearing the court denied the motion, and the defendant appeals.

Plaintiff, in her complaint, alleged that she was the owner of a hotel in the town of Auburn, Placer county, and in August, 1896, leased the same with the furniture, barn, and stable to the defendant, and brought this action to recover three hundred and fifty dollars, rent due and unpaid. This action

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was commenced October 18, 1897. In her affidavit in opposition to- the motion it was stated that the defendant actually resided in said leased premises with his family, conducting the business of a hotel keeper, until in September, 1897, when he left Auburn, his wife and family remaining in the leased premises conducting the hotel business under the lease, and for the benefit of the defendant, until November 19, 1897; that defendant did not inform her that he was going away; that shortly before the commencement of this action she learned for the first time that the defendant was'in Sonora (Tuolumne county); that she informed defendant’s wife on the day before the commencement of this action that she was contemplating bringing it; that defendant’s wife tried to dissuade her from doing so, and assured her that the defendant would return about the 1st of December and resume possession and control of said hotel; that affiant was never informed from any source that defendant had left Auburn intending to change his place of residence, but was led to believe from all the information she was able to obtain that his absence was temporary, and that he intended to return.

The defendant’s affidavit in reply states that he went to Tuolumne county intending to change his place of residence to that county, and so expressed himself to various persons before leaving; that he has been since about August 1, 1897, a