Armstrong v. Superior Court

Per Curiam. Certiorari. Petitioner prays for the annulment of an order of the Superior Court setting aside an order made in response to an application by defendant in an action, wherein one Estep is plaintiff and the petitioner is defendant, for a change of the place of trial from Lake to Sonoma County.

The motion was made on the ground that the action had been brought in the wrong county, and was supported by the defendant’s affidavit that he was, and for many years had been, a resident of Sonoma. The plaintiff resisted the motion, asking that the cause- be retained in Lake County, and filed and read an affidavit setting forth facts tending to prove that it would be for the convenience of witnesses to retain the cause. As the motion was made before answer the plaintiff was not authorized to resist it on the ground that it would be more convenient for witnesses to try the action in Lake. (Cook v. Pendergast, 61 Cal. 72.)

January 29, 1883—the return day of the motion—the court below ordered: “ That the motion to change the place of trial be granted, upon the payment by defendant of all fees accrued in this court to date.”

A demurrer to the complaint had been filed by the defendant contemporaneously with his demand for a change of venue, and, on the 12th day of February, 1883, the plaintiff asked the court to set down the demurrer for argument and proceed with the determination thereof, claiming that a reasonable time had elapsed since the making of the order respecting a change of the place of trial, and the defendant had not paid the costs as therein required.

Thereupon it was by the court ordered:—

“Whereas, in this cause, the court, on the 29th day of January, 1883, made an order, on the application of the defendant, that the same be transferred for further proceedings to the Supe[412]rior Court of the county of Sonoma, upon payment by defendant of all costs accrued and to accrue in this court, and whereas at this date said defendant has not paid said costs, nor offered any excuse for his failure to do so; now, therefore, it is ordered by the court that the order made on the 29th day of January, 1883, be annulled and set aside.” And it was then and there further ordered “that the demurrer aforesaid be set for hearing on the 29th day of February, 1883.”

It is insisted by the petitioner that the condition in the order of January 29th, as to the payment of costs, was and is void, being a condition which the court had no right to require, and, as a consequence, that the order should be read as if no such condition had been inserted, and was and is an order granting the motion for a change of the place of trial; that the order granting the change necessarily included an adjudication as to the defendant's residence; that the power of the court was exhausted in the premises when it found that the defendant resided in Sonoma and granted the motion, and that, immediately upon the entry of the order, the Superior Court of Lake lost, and the Superior Court of Sonoma acquired, jurisdiction of the action.