Blevins v. Blevins

RICHARDS, J.,

pro

tem.

This is an appeal from an order denying a motion for change of place of trial upon the ground of convenience of witnesses. The action is one for divorce on the ground of extreme cruelty. It was originally commenced by the plaintiff in the superior court of the city and county of San Francisco. Upon the appearance and demand of the defendant the action was transferred for trial to the county

[319]

of Colusa, the place of the defendant’s residence. Thereafter his answer and cross-complaint were filed, in the former of which the defendant made specific denials of the averments of the plaintiff’s complaint in so far as they referred to his alleged acts of cruelty, while in his cross-complaint the defendant averred numerous acts of cruelty on the plaintiff’s part. To this cross-complaint the plaintiff answered with specific denials. The issues having thus been made up the plain- • tiff made her motion for the transfer of the case to the city and county of San Francisco upon the ground of convenience of witnesses, supporting the same with an affidavit containing the names of twenty-five witnesses residing in San Francisco, with a statement as to the matters in support of the averments of her complaint to which she expected each of said witnesses to testify. In resisting this motion the defendant filed a counter-affidavit, denying that the convenience of witnesses and the ends of justice would be promoted by the change of place of trial, deposing that the calendars of the several departments of the superior court of San Francisco were congested to the extent that a trial of this action could not be had for several months if the cause should be transferred to said court, while in the county of Colusa it could be tried speedily. The defendant further set forth the names of nineteen witnesses residing in the county of Colusa or counties. adjacent thereto, together with the matters to which he expected each of them to testify, in denial of the averments of the plaintiff’s complaint, or in support of those of his cross-complaint. The motion came on for hearing on or about July 18, 1916, whereupon the plaintiff presented and filed a so-called stipulation in which she agreed that if certain specified witnesses named in the defendant’s affidavit did not appear on his behalf at the trial of the cause if transferred to San Francisco, she would admit that said witnesses would testify to the matters set forth in the defendant’s affidavit to which they were severally expected by him to testify. The admission as to eleven of these witnesses was unqualified, but as to the remaining eight was so qualified as to largely impair its value. Upon the presentation and filing of this affidavit on plaintiff’s behalf the defendant presented a stipulation on his behalf to the effect that as to seventeen of the plaintiff’s witnesses he would admit that their proposed testimony, as shown in the plaintiff’s affidavit, was true and to be consid