People ex rel. State Bd. of Harbor Comm'rs v. Larue

The Court Appeal from an order refusing to change the place of trial.

Both defendants filed a demurrer to the complaint, and filed a demand in writing, signed by their attorney, that the place of trial be had in the county where they resided. Notice of the motion for change of place of trial was given by both defendants, and stated that the motion was based on the papers on file and the affidavit of Greenlaw. The affidavit of merits was the affidavit of defendant Greenlaw alone, and stated that “ he has fully and fairly stated his case, and the facts constituting his defense in the said action,” to his attorney.

The respondents, on behalf of the correctness of the order denying the motion, urge :

First. That the demand was not signed by the defendants in person ; that the attorney had no authority until he had appeared in the action.

The appearance and the demand were simultaneous acts-There is nothing in the point.

[236]Second. That Larue did not file any affidavit of merits, nor Was one filed on his behalf.

The defendants were sued as sureties on a bond. The point is not well taken. (Rowland v. Coyne, 55 Cal. 1.)

Third. That Greenlaw’s affidavit was insufficient; and cite Nickerson v. California Raisin Company, 61 Cal. 268. In that case, the affidavit was that he had stated his defense—and the affidavit was held defective. In the case at bar, the affidavit was that he had fully stated his ease and the facts constituting his defense in the action.

We are of opinion that the affiant, in saying that he had stated his ease, in effect said no more than that he had stated his defense—not that he had stated the ease ; and that the decision in Nickerson v. California Raisin Company, supra, applies. See also, Watkins v. Degener, 63 Cal. 500.

Order affirmed.