Cook v. Pendergast

California Supreme Court Jul 24, 1882 No. No. 7,752Published

Before: McKinstry

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Holding. The court held that a plaintiff cannot successfully resist a defendant's motion for a change of venue based on improper county by filing a cross-motion for convenience of witnesses before an issue of fact has been joined by an answer.

Issues

Whether a plaintiff may file a cross-motion to retain an action in the original county based on the convenience of witnesses before the defendant has filed an answer.

Disposition. reversed

Quotations verified verbatim against the opinion

“Independent of an express provision of statute, the Superior Court ought not to be called on before issues of fact have been joined to decide that the convenience of witnesses will be promoted by a change of the place of trial”

“If his motion to change the place of trial is brought to a hearing before he has answered, the plaintiff can not by cross-motion, demand the retention of the action in the county where it is pending, on the ground of. convenience, etc.”

Synopsis

Change of Place of Trial—Practice.—The only case in which it can ¡ ever be necessary or proper for plaintiff on cross-motion to ask that the action be retained for trial in the county where he has brought it (because of convenience of witnesses, etc.), is the case in which the motion of defendant is upon the ground that the county designated in the complaint is not the proper county. When the motion on part of defendant is made upon the ground that an impartial trial can not be had or that the change will promote the convenience of witnesses or that the judge is disqualified, the plaintiff, without cross-motion, but in response to defendant’s motion, may file counter affidavits.

Id.—Id.—A defendant who demurs to a complaint without answering must demand a transfer (if he claim it on the ground that the proper county is not designated) before or when he demurs. If his motion to change the place of trial is brought to a hearing before his answer, the plaintiff can not by cross motion demand the retention of the action in the county where it is pending on the ground of convenience of witnesses.

Id.—Id.—Query.—Whether if the motion of defendant is heard after he has answered, the claim on his part, that the suit has been brought in the wrong county, must or can be met by one on the part of the plaintiff (if the latter intends to assert such claim) that it will promote the convenience of witnesses and the ends of justice to retain the cause for trial where it is a question not necessary to be decided in this case.

Id.—Id.—Oases Distinguished, etc.—Loehrv. Latham, 15 Oal. 418; Pier-son y. McCahill, 22 id. 127; Hanchett v. Finch, 47 id. 192; Edwards v. S. P. R. Co., 48 id. 460; Jenhins v. California Stage Company, 22 id. 537, commented on and distinguished.

The Court : The defendant moved for a change of venue on the ground that the action was not brought in the proper county, by reason of non-residence of the defendant. The plaintiff resisted the motion on the ground of. convenience of witnesses. The Court below denied the motion, and defendant appealed. The appeal was heard in this Court by Department One, and its opinion was filed January 9, 1882. (8 Pac. L. J., 1,006.)

Subsequently, a hearing by the Court in bank was gianted. Such hearing has been had.

We are satisfied with the views expressed in the opinion of the Department; therefore, the order appealed from is reversed.

The following is the opinion of Department referred to:

McKinstry, J.: Under the act known in this State as the "Practice Act,” it was held by the Supreme Court that an application to change the place' of trial of an action must be made by defendant in the answer, or contemporaneously with the filing of an an-swer or demurrer. (Tooms v. Randall, 3 Cal. 438; Reyes v. Sanford, 5 id. 117; Pearkes v. Freer, 9 id. 642; Jones v. Frost, 28 id. 245; Mahe v. Reynolds, 38 id. 560.)

Sections 396 and 397 of the Code of Civil Procedure read as follows:

396. “If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.”

397. “The Court may, on motion, change the place of trial in the following cases:

“1. When the county designated in the complaint is not the proper county.

“2. When there is reason to believe that an impartial trial can not be had therein.

“3. When the convenience of witnesses and the ends of justice would be promoted by the change.

[76]“4. When from any cause the Judge is disqualified from acting.”

The only case in which it can ever be necessary or proper for plaintiffi on cross-motion, to ask that the action be retained for trial in the county where he has brought it (because of convenience of witnesses, etc.,) is the case in which the motion of defendant is upon the ground that “the county désignated in the complaint is not the proper county:” When the motion on the part of defendant is made upon the ground, that, “an impartial trial” can not be had, or that the change will promote the convenience of witnesses, or that the Judge is disqualified, the plaintiff, without cross-motion but in response to defendant’s motion, may file counter affidavits tending to prove that an impartial trial can be had in the county where the action is pending, or that the convenience of witnesses will not be promoted by the change, or that the Judge is not disqualified.

Cook v. Pendergast

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