The first motion for change of place of trial was properly denied, because all the defendants did not join in the motion, and no reason was assigned by the moving parties for such failure. (Pieper v. Centinela Land Co. , 56 Cal. 173, and cases therein cited.) The motion having been made upon the same ground as the first, viz., residence in San Joaquin County, the decision of the first motion became the law on all points involved therein, and obligatory upon the Court and parties. The remedy was by appeal. (Lang v. Specht , 7 P. C. L. J. 236.) If the remedy was not by appeal, the second application for change of venue was properly denied, because not made at the time the defendants appeared and demurred. They could not move after filing their demurrer. It was a right which could be waived. (Pearkes v. Freer , 9 Cal. 642; Jones v. Frost , 28 Cal. 245). " 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." (Cook v. Pendergast , 8 P. C. L. J. 1006.)
JUDGES: Ross, J. McKinstry and McKee, JJ., and Morrison, C. J., concurred. Sharpstein, J., dissenting. Myrick, J., concurred with Mr. Justice Sharpstein.
OPINION
ROSS, Judge
In Bank. If the complaint counted alone on the bond executed by Joseph H. and George N. Cole, there was no cause of action stated against Jewell or Showers, and they were improperly made parties. In that view, the Coles were entitled to a change of the place of trial, and their motion in that behalf made in 1877, and denied August 30, 1878, ought to have been granted, notwithstanding Jewell and Showers then remained parties of record. From the order made refusing a change of venue the parties aggrieved were entitled to appeal, and that was their remedy. If, on the other hand, the complaint contained a cause of action against Jewell and Showers, the order made August 30, 1878, was rightly made, for they did not join in the motion for a change of the place of trial, but on the contrary, filed a demurrer, without objection, on that ground. If there was a cause of action stated against them, they had as much right to have it tried in the City and County of San Francisco, where the action was commenced, as their codefendants had to have it tried in the county of their residence. In either event, we do not perceive how the subsequent dismissal of the action as against Jewell and Showers could operate to confer on the other defendants the right contended for by them. That right is to be determined by the condition of things existing at the time the parties claiming it first appeared in the action.
Order affirmed.
DISSENT:
SHARPSTEIN
Sharpstein, J., dissenting:
I dissent. This is one of the actions which the Code declares " must be tried in the county in which the defendants or some of them reside at the commencement of the action." ( C. C. P. 395.) Before the action was dismissed as to any of the defendants, some of them resided in San Francisco and some of them in San Joaquin County. After the dismissal of the action as to some of them, the remaining ones resided in San Joaquin. They had a right to have the action tried in that county, and if they did not waive that right, the Court erred in denying their application to have the place of trial changed from San Francisco to San Joaquin. The right might have been waived by appearing and answering or demurring without filing an affidavit of merits and demanding " in writing that the trial be had in the proper county." (Id. 396.)
The appellants, on their first appearance, as the sole defendants in the action, and at the time of filing their answer, did file an affidavit of merits and a demand " in writing that the trial be had in the proper county." Before that, either San Francisco or San Joaquin was the proper county. Now it could never have been the intention of the Legislature that a plaintiff, by improperly joining persons who resided in the same county with himself, against whom his complaint showed that he had no cause of action, with persons residing in another county against whom he did allege a cause of action as defendants, could defeat the right of the real defendants to have the action tried in the proper county, particularly when, as in this case, the action is dismissed as to the defendants residing in the same county with himself before the filing of the answer. Whenever the attention of the Legislature is manifest it must prevail in the construction of statutes. The object of the Legislature was to prevent the trial of actions in counties other than those in which the defendants resided, unless they waived that right. I do not think that the Courts should sanction a palpable evasion of such a statute.