Hearne v. De Young
Before: Searls
Synopsis
Action- for Libel—Venue—Change of Place of Trial—Residence of Codefendant—Consent to Change.—An action for libel is one which, under section 359 of the Code of Civil Procedure, the plaintiff has a right to have tried in the county in which the defendants or some of them reside; and where one of the defendants is a resident of the county in which the action is brought, a motion by another nonresident defendant to change the place of trial to the county of his residence is properly denied, notwithstanding the resident defendant consents in writing that the place of trial be changed as prayed by his eodefendant. '
Id.—Waiver of Venue—Burden of Proof.—The right to have a cause tried in a particular county is one which a party may ivaive either expressly or by implication, and where the complaint is silent as to the residence of the defendant, the burden of proof is cast upon him to show the county of his residence if he would secure a change of venue; and where there are several defendants, he who would procure a change of venue must show that none of them are residents of the county in which the action is brought; and where the record fails to show such proof, a motion by one defendant for such change is properly denied.
Id.—Oral Stimulation—Admission of Residence at Hearing—Action of Court—Estoppel.—Although an executory stipulation, when denied, cannot be proved otherwise than by an agreement in writing filed with the clerk, or by agreement entered upon the minutes of the court, yet where the record shows that it was admitted at the hearing of a motion to change the place of trial that one of the defendants resided in the county where the action was brought, there was no occasion for other proof of the admitted fact, and such admission having been acted upon by the court, and embodied in a bill of exceptions, cannot be traversed upon appeal.
Searls, C. This is an appeal from an order of the superior court of the county of San Diego, denying a motion by defendant De Young to change the place of trial to the city and county of his residence, viz., the city and county of San Francisco.
The action is brought in the county of San Diego, to recover from the defendants, M. H. De Young and J. F. Blunt, and each of them, the sum of one hundred thousand dollars as damages sustained by plaintiff, by reason of an alleged libel published by said defendants of and concerning plaintiff in the San Francisco Chronicle.
The complaint avers that during all the times therein mentioned M. H. De Young was the proprietor and the defendant Blunt was the San Diego correspondent of a certain daily newspaper known as the San Francisco Chronicle, which said newspaper had and still has a large circulation in the city of San Diego, state of California.
That on the twenty-seventh day of August, 1894, the said defendants and each of them did maliciously and falsely print and publish in said San Francisco Chronicle, and did maliciously, willfully, and falsely cause to be printed, published, and circulated in said paper, in said county of San Diego, a certain false and defamatory article of and concerning the plaintiff, a copy of which article is made a part of the complaint.
The complaint contains no allegations, other than as above, in reference to the place of publication of said newspaper, or of said article, or as to the relations existing between said defendants, or in reference to the residence of either of them.
Defendant De Young alone moved in due time and form for a change of the place of trial, as aforesaid, [376]showing that during all the times mentioned in the complaint he was and still is a resident of the city and county of Ban Francisco, and a nonresident of the county of San Diego; that he had a meritorious defense, etc. Defendant Blunt consented in writing that the place of trial be changed as prayed by his codefendant.
It was admitted at the argument of the motion that defendant Blunt was, at the commencement of the action, a resident of the county of San Diego, California. The motion was denied and defendant De Young alone appeals.
This action is one which, under section 395 of the Code of Civil Procedure, the plaintiff had a right to have tried in the county in which the defendants, or some of them, resided at the commencement of the action.
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