Enter v. Crutcher

• Decision Date: 18 March 1958
• Citation: 159 Cal.App.2d Supp. 841,323 P.2d 586
• Court: California Superior Court
• Parties: 159 Cal.App.2d Supp. 841 Mercedes ENTER, Plaintiff and Respondent, v. Lee CRUTCHER, Defendant and Appellant. C.A. 9458. Appellate Department, Superior Court, Los Angeles County, California

Page 586

323 P.2d 586

159 Cal.App.2d Supp. 841

Mercedes ENTER, Plaintiff and Respondent, v. Lee CRUTCHER, Defendant and Appellant.

C.A. 9458.

Appellate Department, Superior Court, Los Angeles County, California.

March 18, 1958.

Myers, Martin & Leedy, Encinitas, for appellant.

Ray H. Enter, Los Angeles, for respondent.

DAVID, Judge.

This action is brought upon two accepted bills of exchange upon which the defendant was both drawer and acceptor, directing plaintiff's assignor, upon acceptance, to charge the sums so due to defendant's account, in accordance with the advices of the defendant. The acceptances were executed in the city of San Jose, Costa Rica. No place of presentment or payment was specified in the documents in question. The verified complaint alleges assignment of the documents to the plaintiff, that residence of plaintiff is in Los Angeles, Los Angeles County, California, and that 'Defendant is also a resident of Los Angeles, California.'

The defendant made a motion for change of venue to the appropriate Municipal Court of Oceanside Judicial District, San Diego County, and in his affidavit of merits, under oath, declared: 'That he is not a resident of the County of Los Angeles, State of California as alleged in plaintiff's complaint and that he has not been a resident of said county for more than fifteen years past; that he is a resident of the County of San Diego, State of California, and has resided at Ramona in said latter county for more than one year last past; That he has not at any time entered into any contract, either oral or written, with the plaintiff herein or with the assignor of plaintiff herein in the County of Los Angeles, nor has he entered into any contract with plaintiff herein, or with the assignor of plaintiff herein, the performance of which was to be made and had in the County of Los Angeles, State of California; * * *' Reference is made to all the record.

The plaintiff countered with an affidavit, under oath, in which she states, 'That she is the affiant herein. That upon the ground of information and belief affiant alleges that the real and true address of said defendant Lee Crutcher is 615 South Pasadena, California, in that he has mail sent there.' Defendant's verified answer, filed prior to the hearing of the motion for change of venue, asserts, 'Answering Paragraph I of plaintiff's first cause of action denies that defendant is a resident of the County of Los Angeles, State of California, and alleges that defendant is now and for more than one year last past has been a resident of the County of San Diego, State of California; * * *' and realleges the same in reference to plaintiff's second and third causes of action in the form of common counts, for indebtedness, and for work and labor, respectively, in the amount claimed.

(1) On the record before us, we must presume in the absence of a contrary showing, that the law of Costa Rica governing bills of exchange is the same as our own. Christ v. Superior Court, 1931, 211 Cal. 593, 598, 296 P. 612; Louknitsky v. Louknitsky, 1954, 123 Cal.App.2d 406, 408, 266 P.2d 910. By acceptance the bills became chargeable by the payee to the account of the defendant in U. S. funds thirty days after sight and acceptance, September 1, 1955, in each case. It would appear, therefore, that defendant's indebtedness was personal to the assignor, charged on its books against him in United States funds. Since both bill and acceptance are in the Spanish language, it would appear that the acceptance was made likewise in Costa Rica. It is not alleged that the present suit is brought where such contract of payment was to be performed. Hence, the venue is the residence of the defendant. Code Civ.Proc. sec. 395; Hayutin v. Rudnick, 1952, 115 Cal.App.2d 138, 141, 251 P.2d 707; Dawson v. Goff, 1954, 43 Cal.2d 310, 273 P.2d 1. The general spirit and policy of the venue provisions is to give the defendant the right to have all personal actions against him tried in the county of his residence. Turlock Theatre Co. v. Laws, 1939, 12 Cal.2d 573, 86 P.2d 345, 120 A.L.R. 786; Hale v. Bohannon, 1952, 38 Cal.2d 458, 241 P.2d 4; Deas v. Lido Lumber Co., 1955, 132 Cal.App.2d 402, 282 P.2d 90; Credit Bureau of San Diego, Inc., v. Clark, 1950, 98 Cal.App.2d 479, 220 P.2d 596.

A person has only one residence at a time. As stated in Stone v. Everts, 1928, 203 Cal. 197, 198, 263 P. 236, 237, if defendants are residents of Fresno County 'it must necessarily follow that said defendants are not residents of the city and county of San Francisco.'

In Bohn v. Better Biscuits, Inc., 1938, 26 Cal.App.2d 61, 78 P.2d 1177, 80 P.2d 484, it is said that 'residence' as used in C.C.P. sec. 395 does not refer to 'domicile', but was used in the sense of live, dwell, abide, sojourn, stay, remain or lodge. Some of the lexicographers indicate that 'residence' also requires an intention to abide continuously, to dwell permanently, or for a length of time, to have a fixed abode; that to be a 'resident', one must be an actual dweller in a certain place, though there may be a legal domicile elsewhere. Leroux v. Industrial Accident Commission, 1934, 140 Cal.App. 569, 35 P.2d 624, 626; Fort Worth & D. C. Ry. Co. v. Monell, 1908, 50 Tex.Civ.App. 287, 110 S.W. 504, 506.

One who is merely stopping over at a place in hotel, motel, rooming house, or who is vacationing is not a resident. Oelkers v. Hulseberg, 1951, 200 Misc. 352, 107 N.Y.S.2d 144, 145. A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there. Sprulin v. Siebrasse, 1951, 74 S.D. 150, 49 N.W.2d 604, 605. The fundamental elements necessary to create a residence in a particular place are actual bodily presence in the place combined with a freely exercised intention of remaining there permanently or for an indefinite time, Johnston v. Benton, 1925, 73 Cal.App. 565, 239 P. 60; Bryant v. Bryant, Mo.App. 1950, 232 S.W.2d 199, 203, without any present intention to remove from the same. Prince v. Inman, Tex.Civ.App.1955, 280 S.W.2d 779, 781, 782; In re Lesker, 1954, 377 Pa. 411, 105 A.2d 376; cf. Smith v. Smith, 1955, 45 Cal.2d 235, 288 P.2d 497; Hughes v. Illinois Public Aid Commission, 1954, 2 Ill.2d 374, 118 N.E.2d 14, 17, 18, 43 A.L.R.2d 1421; Southeastern Greyhound Lines v. Conklin, 1946, 303 Ky. 87, 196 S.W.2d 961, 962; Willingham v. Swift & Co., C.C.1908, 165 F. 223, 224; Routt v. Barrett, 1947, 396 Ill. 322, 71 N.E.2d 660, 671; Fowler v. Fowler, 1945, 156 Fla. 316, 22 So.2d 817.

The allegations of plaintiff's verified complaint as to defendant's residence serve as an affidavit. Atwater v. Argonne Van & Storage Co., 1946, 74 Cal.App.2d 410, 412, 168 P.2d 776; East-West Dairymen's Ass'n v. Dias, 1943, 59 Cal.App.2d 437, 441-442, 138 P.2d 772; Carnation Co. v. El. Rey Cheese Co., 1948, 88 Cal.App.2d 857, 858, 200 P.2d 19.

(2) Apart from the verified complaint, plaintiff's affidavit filed in answer to defendant's affidavit is not sufficient. First, it is made on information and belief. An affidavit made on information and belief when submitted for an evidentiary purpose is hearsay, and is to be disregarded. Franklin v. Nat C. Goldstone Agency, 1949, 33 Cal.2d 628, 204 P.2d 37; 2 Cal.Jur.2d p. 629, par. 19; Jeffers v. Screen Extras Guild, Inc., 1955, 134 Cal.App.2d 622, 286 P.2d 30.

Secondly, it relates to the 'address' of the defendant. An address is not always synonymous with 'residence'. Stewart v. City of Rio Vista, 1945, 72 Cal.App.2d 279, 164 P.2d 274, 275; Ridge v. Boulder Creek Union etc. School Dist., 1943, 60 Cal.App.2d 453, 140 P.2d 990, 992; Smith v. Whiting, 1910, 55 Or. 393, 106 P. 791, 794; Munson v. Bay State Dredging & Contracting Co., 1943, 314 Mass. 485, 50 N.E.2d 633, 636. While 'address' may be synonymous with 'residence' (San Diego Savings Bank v. Goodsell, 1902, 137 Cal. 420, 70 P. 299, 302), the receipt of mail by persons at places other than their residence is so common that we must take judicial notice that a post office address may not be the same as a residence address. People ex rel. Arfman v. Newell, 1911, 49 Colo. 349, 113 P. 643, 645; C.C.P. secs. 1875, 1963(28).

Thirdly, the...