Hennessy v. Nicol

Belcher, C. This is an application for a writ of mandate commanding the respondent, as judge of the superior court of Tuolumne county, to hear and determine a motion made in an action pending in his court for a change of the place of trial of said action.

The facts upon which the application is based are as follows: On June 1, 1894, Cornelia Hennessy commenced an action in the superior court of Tuolumne county against John C. Hennessy, the petitioner here, alleging that the parties to the action were married on July 4, 1889, in said county, and had ever since been, and still were, husband and wife; that from the time of their marriage they continued to live and cohabit together as husband and wife in this state until June 21, 1891, when the defendant willfully and without cause deserted the plaintiff, and had ever since refused to live with her, or to provide a home for her, or to allow her .to return to him; that in November, 1891, a son, the issue of the marriage, was born, and that since the said separation the defendant had refused and neglected to pay or contribute any thing towards the support of [140]plaintiff or the said child; that defendant had an income sufficient to pay plaintiff a reasonable sum for the support of herself and child, and that forty dollars per month was a reasonable sum for such support. And the prayer was that defendant be adjudged to pay plaintiff for permanent support and maintenance of herself and child the sum of forty dollars per month, besides the costs and counsel fees in the action.

The summons in the action was served upon the defendant in the city of San Francisco on June 11th, and at the same time notice, with an affidavit of plaintiff, was served upon him, stating that on June 29th, at 10 o’clock a. m., counsel for plaintiff would move the court for an order requiring the defendant to pay her the sum of two hundred dollars as alimony pendente lite, and for costs.

On June 23d the defendant served and filed a notice that on June 29th, at 10 o’clock a. m., he would move the court for an order changing the place of trial of the action to the superior court of the city and county of San Francisco, upon the ground that at the time of the commencement thereof he was a resident of the said city and county. And at the same time he also served and filed a demurrer to the complaint, a demand that the place of trial be changed from the county of Tuolumne to the city and county of San Francisco, and his affidavit stating that he then was, and for more than three years had been, a resident of said city and county, and also stating in proper form that he had a good defense to the action on the merits.