Summary
In Hanchett v. Finch, 47 Cal., 192, " the motion was made in due form and at the proper time," which, as the report does not show the contrary, may be presumed to have been when the answer was filed.
Summary of this case from Cook v. PendergastOpinion
Appeal from the District Court of the Twentieth Judicial District, Santa Clara County.
COUNSEL:
H. K. W. Clarke, for Appellant, cited Section 395, Code of Civil Procedure; White v. White , 13 Cal. 324; and Locke v. Latham , 15 Cal. 419.
F. R. Spencer and Bodley & Rankin, for Respondent, argued that it was within the discretion of the Court to retain the case in Santa Clara County.
OPINION By the Court:
The action was brought in Santa Clara County, and the defendant then was and yet is a resident of Alameda County. The defendant in due form and at the proper time moved to change the place of trial to Alameda County, on the ground that he was a resident of that county. The plaintiff, in opposition to the motion, filed his affidavit to the effect that the ends of justice, and the convenience of witnesses, required that the action should be tried in Santa Clara County. He specifies six witnesses residing in that county, whose testimony, he alleges, will be material. In a counter affidavit the defendant alleges that he has eight material witnesses residing in Alameda County, whose names are given. The Court below denied the motion, and the defendant appeals. Prima facie the defendant had the right to have the action tried in Alameda County. But this right is subject to the power of the Court to retain the cause for trial in Santa Clara County if the ends of justice or the convenience of witnesses require it. The Court below must necessarily to some extent exercise its discretion in such cases, and has a better opportunity than we to determine whether the application is made in good faith, and whether the ends of justice will be best subserved by granting or refusing the motion. The mere preponderance in the number of witnesses on the one side or the other is not necessarily decisive of the application; and unless there is reason to believe that the Court below has abused its discretion or injustice has been done, we are not inclined to interfere. In this case we see no reason to infer that the Court has not exercised its discretion soundly.
Judgment affirmed.