McNeill & Co. v. Doe

LORIGAN, J.

This appeal is from an order denying the motion of defendant Reick (sued as John Doe) for a change of the place of trial of the action and from the judgment entered against him.

The suit was in claim and delivery to recover from defendant Reick possession of a piano alleged to have been delivered to him by the defendant Hirsch, a piano salesman for plaintiff in exchange for a secondhand automobile, without authority so to do.

The action was commenced in the superior court of Fresno County and summons served on defendant Reick in Tulare County on May 17, 1910. On June 9, 1910, defendant Reick filed a demurrer to the complaint and at the same time served notice and demand for a change of the place of trial from Fresno County to Tulare County on the ground that he was' a resident of the latter county when the action against him was commenced. This demand was accompanied by what purported to be an affidavit of merits. Before the day noticed for hearing of his motion Reick filed a supplemental affidavit of merits. The motion was denied on June 20, 1910. The order of denial was clearly right as the original and supplemental affidavits of merits were radically defective in essential particulars. No claim to the contrary is made by appellant. In fact no appeal has been taken from this order.

On July 5, 1910, defendant Reick filed his answer and therewith served another notice of demand for a change of the place of trial on the ground of his residence in Tulare County when the action was commenced, and on the further

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ground of the convenience of witnesses; this demand also being accompanied by an affidavit of merits. On July 18th this motion on both grounds was denied; properly as applying to the demand for a change on the ground of the residence of defendant for reasons hereafter to be given, and properly also on the ground of alleged convenience of witnesses, as the affidavit of merits contained neither the names of the witnesses nor any statement of the matters to which they would testify.' Nothing, however, need further be said about this order as no appeal has been taken from it.

On August 27, 1910, defendant again served a notice and demand for a change of the place of trial, both on the ground of his residence in Tulare County when the suit was commenced, and the further ground of the convenience of witnesses, filing therewith an affidavit of merits addressed to both grounds. The plaintiff filed a counter affidavit on the matter solely of the convenience of witnesses. The motion for a change came on for hearing on September 12, 1910, when it was agreed that it should be submitted to the court on briefs and it was so ordered. Thereafter, on October 10, 1910, the court entered an order denying it.