Nolan v. Mcduffie

CHIPMAN, C. Action brought in Los Angeles county to recover commissions on sale of real property by plaintiffs as agents of defendant. Complaint was filed May 24, 1897. The matter is here on appeal from an order denying defendant’s motion for change of place of trial to Santa Barbara county. The proceedings as they appear from the transcript were as follows: On June 15, 1897, defendant made an affidavit of merits, and on the same day signed a demand directed to plaintiffs’ attorneys that the place of trial be changed, and on the same day defendant’s attorneys signed a notice directed to plaintiffs’ attorneys stating that defendant would, on June 30, 1897, at 10 o’clock A. M., or as soon thereafter as counsel could be heard, move for a change of the place of trial, and that the motion would be heard “upon affidavits, copies of which are herewith served upon you, and upon the demand to change the place of trial and the papers on file in the case,” et cetera. Defendant also, on the same day, served upon plaintiffs’ attorneys a general demurrer to the complaint. These papers were all duly served on plaintiffs’ counsel and filed. “On the twenty-eighth day of June, 1897, said demurrer came on regularly to be [336]heard on the law and motion calendar of said court, and the same, being called for argument, was answered ready by plaintiffs’ counsel, the defendant not being present nor consenting to the hearing, and the court, having no knowledge of demand for change of place of trial, took up said demurrer and complaint and passed upon the same, sustaining said demurrer on said twenty-eighth day of June, 1897.” It appears, also, that on the thirtieth day of June, 1897, the hearing of defendant’s demand for change of place of trial “came on for hearing before said court, and the court, being of the opinion that the affidavit of merits was insufficient, granted defendant leave to amend the same, and the further hearing of the matter was continued until July 14, 1897, at which time the defendant filed ■the following amended affidavit of merits.” Then follows this affidavit. It appears that the matter came on for hearing again on July 14, 1897, the day fixed by the court, when defendant’s motion was denied on the grounds: 1. That the first affidavit of merits was insufficient, but in what respect is not shown; and 2. “That the demurrer heretofore filed in said cause by said defendant had been passed ;on by the court and sustained, and the application for a change of venue came too late.” Defendant appeals from the order denying his motion. Respondents have filed no brief.

The affidavit first served stated as follows: “I reside in the county of Santa Barbara, state of California, and have so resided for more than five years last past. I further say that I have fully and fairly stated the case in this cause to (naming his attorneys), and after such statement. I am by them and each of them advised and verily believe that I have a good and substantial defense on the merits to the said action.” This affidavit was sufficient. (Watkins v. Degener, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553.) The motion to change 'the place of trial was pending when the demurrer was passed upon, of which plaintiffs’ counsel had notice. The absence of defendant’s counsel on law day, when the demurrer was called, did not authorize the court to hear the demurrer. It was the duty of the court to hear and determine the motion before it could hear or determine the demurrer, and, if the defendant had been found to