Schilling v. Buhne

LORIGAN, J.

Plaintiff, an attorney-at-law, commenced an action in the superior court of the city and county of San Francisco to recover for legal services alleged to have been rendered to defendant. On application of the defendant, the cause was transferred to the superior court of Humboldt County, that county being the place of defendant’s residence. Thereafter the plaintiff applied to said superior court of Humboldt County to have the cause retransferred to the superior court of the city and county of San Francisco, on the ground that the convenience of witnesses would thereby be subserved, and that the ends of justice would be promoted by the change. In support of his application he filed affidavits, which were'

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met by countervailing affidavits upon the part of the defendant. Upon the hearing his application was denied, and he appeals.

As to the convenience of witnesses, the affidavits show, that upon the trial of the cause the plaintiff intended to prove the value of his services by the testimony of certain attorneys (named in the affidavit) residing in the city and county of San Francisco. It does not appear from the affidavits that he intended to call these witnesses as to the nature or amount of legal services which he claims to have rendered to the defendant, but to call them solely as experts for the purpose of fixing their value; The defendant in his affidavit bearing upon the convenience of witnesses, sets forth the names of an equal number of witnesses—practicing attorneys, resident in Humboldt County—whom he proposed to call as to the value of the services rendered by the plaintiff. It will be thus observed that, as far as the convenience of these witnesses is concerned, the plaintiff stands in no better position than the defendant. - It is true the record shows that the services for which defendant makes charge were rendered in the city and county of San Francisco, a portion of them consisting in services rendered in an action brought there entitled “Mutual Life Insurance Company v. Kroeger.” ' We 'caimot assume however, in the absence of any statement to that effect in the affidavits, that the value of services for which plaintiff claims compensation is to be measured by a different standard of value because they, were performed in San Francisco, than if they had been performed in Humboldt, and, this being true, and - no more reason being shown why -the witnesses for the defendant on this point should be required to come from Hum-, boldt County to San Francisco, than that.the witnesses to the same point for the plaintiff should go from San Francisco to. Sumboldt County, we can see no cause for disturbing the action of the lower court in denying the application, upon that ground. Another ground urged upon the motion was,, that it would be necessary upon the trial to produce the papers on file in the case of “The Insurance Comp any