Hart v. Forgeus

ANGELLOTTI, C. J.

This is an appeal by defendant from an order of the superior court refusing to change the place of trial of the action from the superior court of Alameda County to that of Santa Cruz County.

The action is one for the recovery of money. It was commenced in Alameda County on February 28, 1919, and on March 11th defendant, who was a resident of Santa Cruz County, was personally served in the city and county of San Francisco. On March 26,1919, defendant’s attorneys, whose offices were in San Francisco, sent by mail to the county clerk of Alameda County, having first served the same, a demurrer to the complaint, a demand in writing that the trial he had in the proper county, and an affidavit of merits, etc., together with a notice of motion to be made April 4, 1919, for change of place of trial. These papers were accompanied by a check for three dollars, which was sufficient in amount to entitle them to be filed, but did not include a calendar fee of two dollars. The papers were received by the clerk on March 27, 1919, and he filed the demurrer, but

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failed to file the other papers because of the failure of the defendant to forward the claimed fee of two dollars for placing the motion on the calendar, retaining such papers in his custody. He forthwith transmitted to defendant’s attorneys his receipt for three dollars, and advised them in writing that there was a fee of two dollars -due for placing motion for change of venue on the calendar. The motion was not placed on the calendar for April 4, 1919, and was not called. Nothing further was done in the matter until June 12, 1919, when defendant paid the calendar fee, and the papers were then marked filed and the matter was put on the motion calendar for June 20, 1919. On or about June 16, 1919, defendant’s attorneys notified plaintiff’s attorneys that the motion would be on the calendar on June 20, 1919. It was brought on for hearing on the last-named day, and on August 8, 1919, was denied, the order of denial being general and not indicating the particular ground or grounds on which the court based its conclusion.

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We think the papers in the matter of the change of place of trial, with the possible exception of the notice of motion, should be regarded as having been filed when received by the clerk, for, accompanied by the requisite fee for such filing, it was his official duty to then file them. The only objections to the granting of the motion that appear to us to present any debatable question are, first, that the moving party did not act with due diligence in making his motion, and, second, that the affidavit of merits was defective.