Reavis v. Cowell

Morrison, C. J.: This action was commenced in the District Court of the Second Judicial District, in and for the county of Butte, and the [589]defendant, being a resident of the county of Santa Cruz, filed his motion and affidavit to have the case transferred to the county in'which he resided, for trial. The motion was opposed by the plaintiff, on the ground that the convenience of witnesses would be subserved by retaining the cause in the county of Butte. The defendant thereupon filed another affidavit, contradicting the affidavit of the plaintiff, and tending to show that the convenience of witnesses would be promoted by the transfer. The Court below denied defendant’s motion, and this appeal is taken from the order of the Court refusing to change the place of trial.

On the hearing of the motion, the defendant objected to the reading of plaintiff’s affidavit, on the ground that the same was irregular and void, for the following reasons: “ 1. That there was no venue to the same. 2. That it was taken and verified by and before one of the attorneys of plaintiff in the cause. 3. That the affidavit was defective, because it did not state that affiant expected to procure the attendance of the persons named therein as witnesses, in the event of the trial being had in the county of Butte.” The Court below overruled the objections, and permitted the affidavit to be read by plaintiff.

The first objection to plaintiff’s affidavit was, that there was no venue thereto. It appears that at the head of the affidavit appeared the title of the court and cause, which was as follows:

“ In the District Court of the Second Judicial District of the State of California, in and for the county of Butte.”

And the jurat was :

“ Subscribed and sworn to before me this 24th day of April, 1878. “ James B. Eeevis,

[seal OF NOTABY.] . “ Notary Public.”

The act regulating notaries requires each notary to keep a seal, upon which must be engraved the arms of this State, the words “ Notary Public,” and the name of the county for which he is commissioned; and the presumption is, that “ official duty has been regularly performed.” (Subd. 15 of § 1963, Code Civ. Proc.)

[590]