Watt v. Bradley

Vanclief, C. This action was commenced in the county of San Joaquin to recover $3,175.85 for medical attention, nursing, support, etc., alleged to have been furnished to the wife of defendant’s intestate in said asylum, situate in said county, at the request of said intestate. *

On motion of defendant, the court ordered a change of the place of trial from the county of San Joaquin to the county of Santa Barbara, on the alleged ground that defendant was a resident of the latter county. The plaintiffs appeal from this order, and contend that the affidavit of defendant upon which the order was made is insufficient. The following is a copy of the affidavit: —

“ In the superior court of the county of San Joaquin, state of California.

“ Robert Watt, Arthur Thornton, H. T. Dorrance, Obed Harvey, and R. S. Johnson, as the board of directors of the Stockton State Insane Asylum, plaintiffs.

“ State of California, )

“ County of Santa Barbara. ) ss"

“ Charles Bradley, being first duly sworn, deposes and says that he is the defendant in the above-entitled action.

“ That he now is, and at the time the above-entitled action was commenced, and for twenty years prior thereto had been, a resident of the county of Santa Barbara, state of California, and was such resident when the summons in said action was served on him, which service was in said Santa Barbara County.

“ That I have fully and fairly stated the case in this action, and fully and fairly stated all the facts relating to such action, to my counsel and attorney in said action, B. F. Thomas, an attorney at law, residing in the city and county of Santa Barbara, state of California, and after such statement to my said attorney, I am advised by him that I have a good, substantial, and complete defense on the merits of said action.

“Charles Bradley.”

[4171]. It is contended that the affidavit does not intelligibly refer to this action, because the title of this action is not fully stated in the affidavit.

The bill of exceptions shows that the notice of the motion “ stated that said motion would be made upon the affidavit and demand of defendant to change the place of trial, annexed and served with said notice, and upon said notice and all of the papers and pleadings on file in said action.” Both the notice and demand “were duly entitled in the action,” and the affidavit was filed with the notice. Therefore, the reference in the affidavit to the “above-entitled action” must have been understood to refer to the title of the action stated in the demand, and in the notice to which the affidavit was annexed and with which it was served. This was sufficient, under section 1046 of the Code of Civil Procedure, which provides that “ an affidavit, notice, or other paper, without the title of the action, .... or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action.”