Hughes v. Gorlek

BARNARD, P. J. This is an appeal from an order granting a change of place of trial.

The first count of the complaint in this action alleged that on January 30, 1952, an account was stated in the county, of Tulare by and between the plaintiffs and the defendants finding that $825 was due to the plaintiffs, which amount the defendants agreed to pay. In a second count, it was alleged that within four years last past, and in the county of Tulare, the defendants became indebted to the plaintiffs upon an open [913]book account in the sum of $825 for services and goods furnished. Both defendants filed a verified answer, denying generally and specifically each and every allegation contained in each count of the complaint, and denying that they were indebted to the plaintiffs in any amount or at all. At the same time the defendants filed a notice of motion for change of venue, together with a motion for change of venue, asking the court to change the place of trial to the Municipal Court of the Los Angeles Judicial District. The notice of motion, which was sworn to, states, among other things, that each of the defendants is a resident of the county of Los Angeles and that the motion will be made and based upon that notice, the affidavit of residence served therewith, and the pleadings in the action. The motion for change of venue mentions only “the defendant,” was signed by the “attorney for defendant” and was verified by the defendant husband. It states that * “the defendant” moves for this change of trial upon the ground “that he is a-resident of the county of Los Angeles,” and that this motion is made and based upon the notice of motion filed and upon the pleadings in the action. There was also filed on the same day an affidavit of the defendant husband stating that he is the defendant in the action, that he was at the commencement of the action and now is a resident of the county of Los Angeles and not a resident of the county in which the action was commenced, and this is followed by the usual statement that he has a meritorious defense to the action. The plaintiffs did not file a counter affidavit, but chose to rely upon the verified complaint. After a hearing the court made the order transferring the case to the Municipal Court for the Los Angeles Judicial District, and the plaintiffs have appealed from that order.

It is first contended that the court erred in ordering a change of venue in the absence of any showing that the defendant wife was also a nonresident of the county where the action was commenced, it being argued that there was no showing of such fact. There was nothing in the verified complaint, which is relied upon by the plaintiffs in opposition to the motion, with respect to the residence of the defendants. The affidavit of the defendant husband stated that he was at the commencement of the action, and now is, a resident of the county of Los Angeles. In the absence of anything indicating the contrary, there is a natural presumption that the residence of the wife is, and has been, the same as that of her