Hennessy v. Nicol

Citations

• 105 Cal. 138
• 38 P. 649
• 1894 Cal. LEXIS 1126

Syllabus

<p>Change of Place of Trial—Duty of Court—Hearing of Application— Discretion—Terms.—Where the action is one which, under section 395 of the Code of Civil Procedure, the defendant is entitled to have tried in the county of his residence, if proper application for the change is made, it is the duty of the court to grant it, and the court has no discretion to refuse to hear the application, or to impose terms as a condition precedent to the hearing.</p> <p>Id.—Action for Alimony—Motion for Temporary Alimony—Demand for Change of Venue—Rights of Parties—Illegal Condition of Hearing.—A right to a change of the place of trial is to be determined by the condition of things existing at the time the parties claiming it first appeared in the action; and the plaintiff in an action for alimony has no right to have a motion for temporary alimony, pending at the time of a demand for a change of the place of trial, first heard before the demand is passed upon, and the court has no right to make a compliance with an order awarding such alimony a condition precedent to the hearing of the application to change the place of trial.</p> <p>Id.—Unauthorized Order Awarding Alimony—Contempt of Court.—■ An order awarding alimony, after a change of the place of trial has been properly demanded by the defendant, is unauthorized, and the defendant is not in contempt of court for not paying the alimony thus awarded.</p> <p>Id.—Service of Order.—Before a party can be brought into contempt for not complying with an order of court such order must be served upon him.</p> <p>Id.—Mandamus—Hearing of Motion to Change Venue.—A writ of mandate will issue from the supreme court to compel a superior judge to hear and determine a motion made in an action pending in his court for a change of the place of trial of the action to the place of residence of the defendant.</p>