Opinion
Department 1.
SYLLABUS
A defendant has a statutory right to have the place of trial changed to the county of his residence, and, there being no counter-motion to retain the cause for the convenience of witnesses in the county where it was commenced, the motion should have been granted.
J. W. Freeman, for plaintiff and respondent.
Robt. Harrison, for appellant.
McKEE, J., We concur: McKINSTRY, J.; ROSS, J.
OPINION
McKEE, J.
In the superior court of Kern county the plaintiff commenced an action to recover judgment upon three promissory notes, made and delivered to him in that county by the defendant in the action. After service of summons, the defendant moved for a change of the place of trial of the action, on the ground that he was, at and before the commencement of the action, a resident of the city and county of San Francisco. The motion was based upon affidavits, which established the fact of defendant's residence in the city and county of San Francisco. The fact was not controverted by the counter-affidavits filed by the plaintiff; nor was any counter-motion made by him to retain the cause in Kern county, on the ground of convenience of witnesses; but the court denied the motion. As the county designated in the complaint was not the proper county for the trial of the action, the defendant had a statutory right to have the place of trial changed to the county of his residence. The order of the court denying the right was therefore erroneous. Sections 395, 397, Code Civil Proc.
Order reversed and cause remanded.
We concur: McKINSTRY, J.; ROSS, J.