Opinion
Civ. No. 1044.
February 21, 1912.
APPEAL from an order of the Superior Court of Kings County changing the place of trial. John G. Covert, Judge.
The facts are stated in the opinion of the court.
Dixon L. Phillips, in pro. per., and W. A. Strong, for Appellant.
E. S. Bell, for Respondent.
Plaintiff appeals from an order of the superior court granting defendant's motion for a change of the place of trial from Kings county to the county of Napa, wherein she resided at the time of the commencement of the action.
The error in the court's ruling is based upon the alleged insufficiency of the affidavit of merits made by defendant, wherein it was stated "that affiant has fully and fairly stated the facts of her case herein to her attorney," by whom she was advised that she had a good and valid defense upon the merits of the action. Upon the authority of Nickerson v. California Raisin Co., 61 Cal. 268, and People v. Larue, 66 Cal. 235, [5 P. 157], the court erred in granting the motion. The statement contained in the affidavit of merits that defendant had stated her case was, in effect, saying that she had stated merely her defense.
The order appealed from is reversed.
Allen, P. J., and James, J., concurred.