National Automobile Ins. Co. v. Havlik

Full title: NATIONAL AUTOMOBILE INSURANCE COMPANY (a Corporation), Respondent, v…

Court: Court of Appeal of California, Second District, Division One

Date published: Apr 8, 1931

113 Cal.App. 264 (Cal. Ct. App. 1931)

298 P. 75

Opinion

Docket No. 6447.

April 8, 1931.

APPEAL from an order of the Superior Court of Los Angeles County denying a motion for change of venue. Marshall F. McComb, Judge. Affirmed.

The facts are stated in the opinion of the court.

A.L. Sebille for Appellant.

Edwin M. Swartz for Respondent.

HOUSER, J.

The action which is "in personam", and upon which this appeal is based, was filed in the county of Los Angeles. At the time defendant was a resident of Imperial County. Contemporaneously with the filing of his answer to the complaint in the action, defendant filed a notice of a motion for change of venue from the county of Los Angeles to the county of Imperial. [1] Thereafter and before said motion came on for hearing, the plaintiff filed a notice of a motion to retain the case for trial in the county of Los Angeles "upon the ground that all of the witnesses who know anything at all about the facts of the transaction upon which said suit is based are residents of Los Angeles county, except the defendant". With said last-mentioned motion the plaintiff filed affidavits of two proposed witnesses by which it appeared that, with the exception of defendant, they, together with two other possible witnesses, were the only persons who were cognizant of any facts which were material to the transaction upon which the action was based and that all of such persons were residents of the city and the county of Los Angeles. In addition thereto, the said affidavits contained a brief summary of what facts would be testified to by all of said proposed witnesses. Defendant filed an answering affidavit wherein, in substance, he deposed that "what they (plaintiff's proposed witnesses) would testify to cannot be based upon their own knowledge". The trial court denied the motion presented by defendant, and granted that presented by the plaintiff; and defendant has appealed to this court "from the whole of said order or orders".

The case of Sheffield v. Pickwick Stages, 191 Cal. 9 [ 214 P. 852], is conclusive against the contention of defendant. See, also, San Jose Hospital v. Etherton, 84 Cal.App. 516 [ 258 P. 611].

The "order or orders" from which the appeal herein is taken are and each of them is affirmed.

Conrey, P.J., and York, J., concurred.