Rey v. Barclay

Belcher, C. This action was commenced in the superior court of the city and county of San Francisco [200]to recover damages alleged to have been sustained by plaintiff by reason of the negligence of defendants, as attorneys at law, while retained and employed by the plaintiff; and the appeal is from an order granting the motion of defendants to change the place of trial to the county of Los Angeles.

On the fourth day of June, 1889, the defendants filed a general demurrer to the complaint, and a notice of motion to change the place of trial, with a demand in writing that the trial be had in the county of Los Angeles, upon the ground that all of the defendants then and at the time'of the commencement of the action resided in that county. They also, at the same time, filed an affidavit made by the defendant Barclay, in which it was stated “ that he has fully and fairly stated all the facts in the above-entitled case constituting the defense of the defendant in the above-entitled action to Alexander Campbell, Esq., an attorney at law duly admitted to practice in the supreme court of the state of California, and one of the attorneys for defendants in this action, and is by his said attorney advised that he and his co-defendants have a full and complete defense to said action upon the merits.”

The motion came on regularly to be heard on the twenty-third day of August, 1889, and thereupon counsel for plaintiff asked the court to deny the motion, upon the ground that no sufficient affidavit of merits had been filed. This the court refused to do, “ but granted leave to the said defendants to amend their affidavit of merits, and to file, upon said motion to change the place of trial, an amended affidavit of merits.” A new affidavit was then filed, and the motion granted.

In cases like this, the code provides that the action must be tried in the county in which the defendants, or some of them, reside at the time of its commencement. (Code Civ. Proc., sec. 395.) But it also provides that “ 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, [201]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.” (Code Civ. Proc., sec. 396.)