Loehr v. Latham

Field, C. J.

This action was brought in Amador county. The defendant alleges in his answer, which is verified, that he was, at the commencement of the action, and still is, a resident of Sacramento county, and insists that the trial of the action shall be in that county. Upon the answer, and his affidavit of residence in Sacramento county, the defendant moved the Court to change the place of trial. The plaintiff resisted the motion by affidavit that he had a’ large number of witnesses, and that they all reside in Amador county, and that a removal of the case to Sacramento would work injury to him and subject him to great expense in procuring their attendance; and also by a further affidavit that he was informed and believed the residence of the defendant was as much in Amador as in any other county of the State, and that if the defendant were not thus a resident of that county, then his residence was unknown to the plaintiff at the commencement of the action. The Court below denied the motion, and from the order of denial the defendant appealed.

The statute provides that the trial of an action, with certain specified exceptions, shall be in the county in which the defendant resides. The defendant, in the present case, is not within any of the enumerated exceptions. He had, therefore, a right to a change of the place of trial, and the affidavit as to the residence of the plaintiff’s witnesses was insufficient to defeat the motion. When the convenience of witnesses is alleged in opposition to a motion of this nature, the evidence as to the convenience should be as full and particular as that which is required upon an application, for this cause, to transfer the trial to another county. Had the action been originally commenced in Sacramento, the affidavit of the plaintiff would not have warranted an order changing the trial to Amador. It does not state the names of his witnesses, and for this reason, if for no other, is entirely insufficient. (6 Cowen, 389.)

It was suggested on the argument, that if the convenience of witnesses required the cause to be retained in Amador, the question should have been presented in a different manner—by a counter motion of the plaintiff to retain the cause, notwithstanding the residence of the defendant is in Sacramento, and that then the two motions could have been brought on at the same time. This mode of procedure would undoubtedly have been proper, and in this way opportunity would have been afforded, if required, to reply to the allegations as to the convenience of witnesses. But the same thing might have been accomplished by giving the defendant reasonable time, if desired, to meet the matter set up in opposition to the original motion. In cases of this kind, such opportunity must be afforded in one way or the other. (See Park v. Carnley, 7 How. Prac. 356.)

The second affidavit of the plaintiff does not meet the positive averment of the defendant, or obviate its effect.

I am of opinion that the order should be reversed, with directions to the Court below to transfer the cause to Sacramento county for trial.