Rathgeb v. Tiscornia , 66 Cal. 96 ( 1884 )

Sharpstein, J.

-This action was commenced in San Francisco against sixteen defendants; fourteen of them reside in Calaveras county, one in Santa Clara, and one on whom the summons has not been served, and who has not appeared in the action, is in Italy. The fifteen on whom service was had appeared, and demanded that the place of trial be changed to Calaveras county, where fourteen of them resided. The motion was granted, and this appeal is from that order. If all the defendants who united in the demand had resided in Calaveras county, their right to have the action tried there would be perfectly clear.

Thisis one of the actions which the code says must be tried in the county in which the defendants, or some of them, reside, but which may be tried in the county in which it is commenced, unless the defendant demands that the trial be had in the proper county, i. e., in the county in which the defendants, or some of them, resided at the commencement of the action. Calaveras county is the county in which most of the defendants resided at the commencement of the action, and therefore was one of the proper counties for the trial; and as all the defendants who were served, or who have appeared in the action, united in a demand to have the trial in that county, we think the order to have it tried there was correct.

The disqualification of the judge of Calaveras county to try the case in no way affects the right of defendants to have it transferred to that county for trial.

If the judge of that county is disqualified, the code plainly points out the course to be pursued.

There is no essential difference between an affidavit of merits, which states that the defendant “ has fully and fairly stated the case in this action,” and one which states that he “ has fully and fairly stated the facts of the said case.”

Order affirmed.

Thornton, J., and Myrick, J., concurred.