Hearne v. De Young

Citations

• 111 Cal. 373
• 43 P. 1108
• 1896 Cal. LEXIS 591

Syllabus

<p>Action- for Libel—Venue—Change of Place of Trial—Residence of Codefendant—Consent to Change.—An action for libel is one which, under section 359 of the Code of Civil Procedure, the plaintiff has a right to have tried in the county in which the defendants or some of them reside; and where one of the defendants is a resident of the county in which the action is brought, a motion by another nonresident defendant to change the place of trial to the county of his residence is properly denied, notwithstanding the resident defendant consents in writing that the place of trial be changed as prayed by his eodefendant. '</p> <p>Id.—Waiver of Venue—Burden of Proof.—The right to have a cause tried in a particular county is one which a party may ivaive either expressly or by implication, and where the complaint is silent as to the residence of the defendant, the burden of proof is cast upon him to show the county of his residence if he would secure a change of venue; and where there are several defendants, he who would procure a change of venue must show that none of them are residents of the county in which the action is brought; and where the record fails to show such proof, a motion by one defendant for such change is properly denied.</p> <p>Id.—Oral Stimulation—Admission of Residence at Hearing—Action of Court—Estoppel.—Although an executory stipulation, when denied, cannot be proved otherwise than by an agreement in writing filed with the clerk, or by agreement entered upon the minutes of the court, yet where the record shows that it was admitted at the hearing of a motion to change the place of trial that one of the defendants resided in the county where the action was brought, there was no occasion for other proof of the admitted fact, and such admission having been acted upon by the court, and embodied in a bill of exceptions, cannot be traversed upon appeal.</p>