Watkins v. Degener

Tenue—Residence of Defendant.—Where the action is not one of those mentioned in sections 392, 393 of the Code of Civil Procedure, and the defendant resides without the county where it has been commenced, it is the right of the defendant to have the place of trial changed, if at the time he appears and answers or demurs, he files an affidavit of merits and demands in writing, that the trial be had in the proper county. Id.—Affidavit of Merits.—The affidavit read, “I have fully and fairly stated the case in this action to my attorney and counsel,” etc. Meld, sufficient.

Appeal from, an order of the Superior Court of Santa Bar bora County changing the place of trial to the city and county of San Francisco. Plaintiff, as a broker, brought this action to recover an unpaid balance of the purchase money advanced by him to purchase wheat for the defendants, and for his broker’s fees. The defendants demurred to the complaint, and at the same time filed an affidavit of merits and a written demand for a change of venue, and moved the court to transfer the cause to the Superior Court of the city and county of San Francisco. The affidavit of merits showed that the defendant making the affidavit resided in the city and county of San Francisco, and the other in Marin County; that they were partners doing business in the city and county of San Francisco; that he had “fully and fairly stated the case in this action to his attorney and counsel,” and that after such statement was advised by said counsel and verily believed that the defendants and each of them had a good and substantial defense to the action upon the merits.