Cook v. Pendergast

Citations

• 61 Cal. 72
• 1882 Cal. LEXIS 544

Syllabus

<p>Change of Place of Trial—Practice.—The only case in which it can ¡ ever be necessary or proper for plaintiff on cross-motion to ask that the action be retained for trial in the county where he has brought it (because of convenience of witnesses, etc.), is the case in which the motion of defendant is upon the ground that the county designated in the complaint is not the proper county. When the motion on part of defendant is made upon the ground that an impartial trial can not be had or that the change will promote the convenience of witnesses or that the judge is disqualified, the plaintiff, without cross-motion, but in response to defendant’s motion, may file counter affidavits.</p> <p>Id.—Id.—A defendant who demurs to a complaint without answering must demand a transfer (if he claim it on the ground that the proper county is not designated) before or when he demurs. If his motion to change the place of trial is brought to a hearing before his answer, the plaintiff can not by cross motion demand the retention of the action in the county where it is pending on the ground of convenience of witnesses.</p> <p>Id.—Id.—Query.—Whether if the motion of defendant is heard after he has answered, the claim on his part, that the suit has been brought in the wrong county, must or can be met by one on the part of the plaintiff (if the latter intends to assert such claim) that it will promote the convenience of witnesses and the ends of justice to retain the cause for trial where it is a question not necessary to be decided in this case.</p> <p>Id.—Id.—Oases Distinguished, etc.—Loehrv. Latham, 15 Oal. 418; Pier-son y. McCahill, 22 id. 127; Hanchett v. Finch, 47 id. 192; Edwards v. S. P. R. Co., 48 id. 460; Jenhins v. California Stage Company, 22 id. 537, commented on and distinguished.</p>