Powell v. Sutro , 80 Cal. 559 ( 1889 )

McFarland, J.

After argument on hearing in Bank, we adhere to the conclusion reached in Department.

The action was commenced in the justice’s court in Alameda County to recover $155.38 for certain taxes alleged to have been paid by plaintiff for defendant. Defendant filed a verified answer, in which he averred the illegality of the taxes. This answer made it necessary, under section 838 of the Code of Civil Procedure, for the justice to suspend all further proceedings, and certify the case to the superior court of Alameda County,—which was accordingly done.

After the case had been transferred to the superior court, the defendant demanded and moved for a change of venue to the county of San Francisco, upon the ground that his place of residence was in the latter county.

The superior court denied the motion, and defendant appeals.

The right to have a change of the place of trial of an action pending in a superior court upon the ground of residence is purely statutory; and it can be successfully asserted only by a party "who brings himself clearly within the statutory provisions on the subject. There is no such right on the ground of residence in a justice’s court.

It is the established law that under the provision of section 396 of the Code of Civil Procedure a motion for a change of venue after demurrer or answer is too late.

Appellant filed his answer in the justice’s court, and of course his demand for a change of venue in the superior court was after answer. It is not necessary to determine here what his position would have been if, wrhen he filed his answer in the justice’s court,—knowing that it would cause a transfer to the superior court,-—-he had then and there made his demand for a change. When he did make his motion he was inevitably in the position of one who makes such a motion too late. It is vain to say that he could not have made his motion any sooner in the superior court; he is still seeking a privilege which can come only from a compliance with a statutory provision with which he had not complied. If there was no way in which he could have complied with the statute, then the fair inference is, that the legislature intended that a motion for a change of venue should be allowed only in those cases which get into the superior court in the usual way,—where the complaint shows upon its face jurisdiction in that court,—and not in the few comparatively trivial cases where the amount sued for is within the jurisdiction of justices’ courts, and where the cases are transferred on account of some averment in the answer.

Order affirmed.

Thornton, J., Sharpstein, J., and Paterson, J., concurred.