93 Cal.App.2d 301, 14135, Yellow Mfg. Acceptance Corp. v. Stoddard
|Citation:||93 Cal.App.2d 301, 208 P.2d 1040|
|Opinion Judge:|| Bray|
|Party Name:||Yellow Mfg. Acceptance Corp. v. Stoddard|
|Attorney:|| Hindin, Weiss & Girard for Appellant.  V. G. Skinner for Respondent.|
|Case Date:||August 11, 1949|
|Court:||California Court of Appeals|
Hindin, Weiss & Girard for Appellant. V. G. Skinner for Respondent
Defendant Stoddard appeals from superior court orders (1) denying his motion, made under section 473 of the Code of Civil Procedure, for an order vacating the court's order denying motion for change of venue, and (2) from an order denying his second application for change of venue.
Defendant contends that the court abused its discretion in denying both motions.
Defendant and one French were named as defendants in an action brought in the Superior Court of Alameda County for damages based upon a contract. The [208 P.2d 1041] complaint did not allege the residence of either defendant. On June 29th, a return showing service of summons on French on June 17th in Stanislaus County was filed. Thereupon defendant Stoddard filed a demurrer and notice of motion for change of venue and affidavit. This affidavit stated that Stoddard had
never been a resident of Alameda County, but was a resident of Los Angeles County, and that the contract was made and performed there. Nothing was said concerning the residence of French. Plaintiff filed no counteraffidavit. Its complaint alleged that the contract was made "so far as this plaintiff is concerned" in Alameda County. On September 17th, the court denied the motion for change of venue, and sustained defendant's demurrer to the complaint. No appeal was taken from the court's rulings. Defendant half concedes that the court's action was proper in view of his failure to allege that defendant French was a nonresident of Alameda County, although at one place in his brief, defendant intimates that the fact that the return of service of summons showed service on defendant French in Stanislaus County and that his time to answer had expired, is of some significance. However, the fact that defendant French was served in Stanislaus County raised no presumption that he resided there. Defendant could have obtained permission to amend his moving papers so as to set up the residence of French (Joe Lowe Corp. v. Rasmusson, 53 Cal.App.2d 490 ), but did not see fit to do so. No authorities are cited (and there are none) supporting the proposition that these circumstances negative in any way the well settled requirement that a nonresident moving for a change of venue must show affirmatively that no defendant is a resident of the county in which the action is brought. (Donohoe v. Wooster, 163 Cal. 114 ; Kraft v. Innis, 57 Cal.App.2d 637 .)
On September 18th, the default of French was entered. On September 22d, plaintiff filed an amended complaint. On October 15th, defendant Stoddard filed a demurrer to this complaint and (1) notice of motion, under section 473 of the Code of Civil Procedure, to vacate the order of September 17th, and (2) a new motion for change of venue including an affidavit showing defendant Stoddard's residence to be Los Angeles County and defendant French's residence to be Stanislaus County, and that the contract was entered...
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