93 Cal.App.2d 301, 14135, Yellow Mfg. Acceptance Corp. v. Stoddard

Docket Nº:14135
Citation:93 Cal.App.2d 301, 208 P.2d 1040
Opinion Judge:[10] Bray
Party Name:Yellow Mfg. Acceptance Corp. v. Stoddard
Attorney:[7] Hindin, Weiss & Girard for Appellant. [8] V. G. Skinner for Respondent.
Case Date:August 11, 1949
Court:California Court of Appeals
 
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Page 301

93 Cal.App.2d 301

208 P.2d 1040

YELLOW MANUFACTURING ACCEPTANCE CORPORATION (a Corporation), Respondent,

v.

W. BENJAMIN STODDARD, Appellant.

Civ. No. 14135.

California Court of Appeal, First District, First Division

Aug. 11, 1949

Page 302

COUNSEL

Hindin, Weiss &amp Girard for Appellant. V. G. Skinner for Respondent

OPINION

BRAY, J.

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.

Contentions

Defendant contends that the court abused its discretion in denying both motions.

Proceedings

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

Page 303

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...

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