Thurber v. Thurber

Searls, C. This is an appeal from an order of the superior court of the county of Santa Cruz denying a motion of defendant to change the place of trial of the cause from said county of Santa Cruz to the city and county of San Francisco.

The action was commenced November 30, 1894, to recover money from the defendant.

The summons was served upon the defendant at the city and county of San Francisco on the fifteenth day of April, 1895.

Defendant appeared in due time, filed a demurrer, an affidavit of merits, and showing that he was a resident of the city and county of San Francisco, a demand for a change of the place of trial from the county of Santa Cruz to the city and county of San Francisco, together with a notice that on the twenty-seventh day of May, 1895, he would move the court, upon the affidavit and [609]demand aforesaid, for an order changing the place of trial as aforesaid.

The affidavit of defendant, Thurber, stated “that he is now, and for several months last past has been, an actual and bona fide resident of the city and county of San Francisco, state of California,” but did not in terms state that he was such resident at the date of the commencement of the action.

Subsequently, and before the hearing of the motion, the defendant filed sundry affidavits showing his residence to have been in the city and county of San Francisco at and prior to the commencement of the action, and that he was still a resident thereof, etc.

Plaintiff thereupon filed a counter-affidavit, in which he stated that “at the time of the filing of the complaint in the said action, on the thirtieth day of November, 1894, the county in which the said defendant above named, the said Alfred S. Thurber, then resided, was unknown to the said plaintiff; that the said defendant was, at the time of the commencement of the said action, a resident of the state of California.”

These later affidavits were evidently filed by leave of the court or by consent of parties, as they were used without objection at the hearing.

The court below refused the motion to change the place of trial upon the ground that the action was one for the recovery of money, and the place of trial is governed by section 395 of the Code of Civil Procedure, and upon the ground that it was “an undisputed fact that the defendant at the commencement of this action resided in the state, and that the county of his residence was unknown to plaintiff.”