Opinion
Application for a writ of mandate.
COUNSEL:
H. P. Irving, for Petitioners.
F. W. Street, for Respondent.
JUDGES: In Bank. Foote, C. Searls, C., and Belcher, C. C., concurred.
OPINION
FOOTE, Judge
From the certified copy of the transcript, brought here in response to the requirements of the alternative writ of mandate issued from this court to the Superior Court of Tuolumne County, it appears that on the ninth day of February, 1885, one Isaac T. Holland commenced an action in a Justice's Court of Tuolumne county against Juan M. Luco, I. N. Thorne, and S. F. Ambler, all of said defendants being non-residents of said county; that on the sixth day of March following defendants Thorne and Luco (Ambler not having been served with process) filed in the Justice's Court affidavits, and a motion to dismiss the action on the ground of a want of jurisdiction in the court to try the cause, also separate answers to the complaint; that on the twenty-first day of December, 1885, the case was tried in said Justice's Court, but before the trial commenced Thorne and Luco, by consent, withdrew the motion to dismiss the action. Judgment was then rendered against them, and from that they appealed to the Superior Court of Tuolumne County, on questions both of law and fact.
After the filing of the papers on appeal in said Superior Court, the defendants Thorne and Luco moved, upon affidavits, for a change of the place of trial of the cause to the Superior Court of the city and county of San Francisco, upon the ground that their residence then, and at the time of the commencement of the action, was at the latter place.
The court overruled their motion. And it is to compel its action to transfer the case for trial as demanded by their motion that the present proceedings were instituted.
The fact that the defendants voluntarily by consent withdrew their motion to dismiss the case, and went to trial on the merits in the Justice's Court, was a waiver of the question of jurisdiction raised on the motion, under section 848, Code of Civil Procedure, the action being in its nature personal.
The action undoubtedly arose in the Justice's Court of Tuolumne County, and therefore no other Superior Court save of that county had appellate jurisdiction to hear and determine it; and as the Superior Court of the city and county of San Francisco was without jurisdiction so to do, it was proper for the court below to have refused, as it did, to transfar the cause as requested by the defendants.
This construction of the provisions of section 980, Code of Civil Procedure, relative to a change of place of trial, and of article 6, section 9, of our state constitution, as bearing upon the constitutiona lity of that former section as applicable to [12 P. 678] cases like the one under consideration, is sustained in the case of Gross v. Superior Court, ante, p. 382.
For these reasons, the writ of mandate should be denied and the petition therefor dismissed.
The Court. -- For the reasons given in the foregoing opinion, the application for a writ of mandate is denied and petition dismissed.