Opinion
Hearing Granted Feb. 5, 1942.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Action by M. L. Lyons and others against the Brunswick–Balke–Collender Company and others. From an order granting defendant Russell J. Bowell’s motion for change of venue to the county of his residence, plaintiffs appeal.
Reversed. COUNSEL
Gibson, Dunn & Crutcher, David P. Evans, and George H. Whitney, all of Los Angeles, for appellants.
O’Melveny & Myers and Pierce Works, all of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From an order granting defendant Bowell’s motion for a change of venue to the county of his residence, plaintiffs appeal.
These are the essential facts:
Plaintiffs filed a complaint in Los Angeles County naming as defendants among others Russell J. Bowell, a resident of San Mateo County and Matthew J. Dooley, a resident of the city and county of San Francisco. April 29, 1941, defendants Bowell and Dooley filed a general demurrer to the complaint and defendant Dooley filed a motion for a change of venue of the action to the city and county of San Francisco, complying with the requirements of section 396 of the Code of Civil Procedure. At the same time defendant Bowell filed an affidavit of merits in which he consented that the place of trial be changed to the city and county of San Francisco. May 7, 1941, and before any ruling upon the defendant Dooley’s request for a change of venue, plaintiffs voluntarily dismissed the action as to such defendant.
May 14, 1941, defendant Bowell served and filed an amended demurrer and also served and filed a demand for a change of venue to the county of his residence, San Mateo County. May 22, 1941, over objection of plaintiffs, the trial court granted defendant Bowell’s motion for a change of venue.
This is the sole question necessary for us to determine:
By failing to file a demand for a change of venue when he filed his general demurrer on April 29, 1941, did defendant Bowell waive the right to subsequently demand a change of venue at the time of filing his amended demurrer?
This question must be answered in the affirmative. Section 396b of the Code of Civil Procedure, so far as material here, reads as follows:
"Except as otherwise provided in section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject-matter thereof, other than the court designated as the proper court for the trial thereof, under the provisions of this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he answers or demurs, files with the clerk, or with the justice if there be no clerk, an affidavit of merits and notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of such papers." (Italics added.)
It has been held by our Supreme Court that the italicized language in the foregoing code section means that, unless a defendant at the time he first appears by answer or demurrer demands a change of venue, he thereby waives his right to have the place of trial changed on the ground that the action has not been commenced in the proper county. (Cook v. Pendergast, 61 Cal. 72, 78; Wadleigh v. Phelps, 147 Cal. 541, 542, 82 P. 200; McNeill & Co. v. Doe, 163 Cal. 338, 340, 125 P. 345; Bell v. Camm, 10 Cal.App. 388, 391, 102 P. 225.)
Pittman v. Carstenbrook, 11 Cal.App. 224, 104 P. 699; Jaques v. Owens, 18 Cal.App. 114, 122 P. 430; Goss v. Brown, 64 Cal.App. 381, 221 P. 683; Gallo v. Boyle Mfg. Co., Inc., 30 Cal.App.2d 653, 86 P.2d 1067; Bloom v. Oroville-Wyandotte Irr. Dist., 34 Cal.App.2d 102, 93 P.2d 164; Lundy v. Lettunich, 50 Cal.App. 451, 195 P. 451; and Smith v. Pelton Water Wheel Co., 151 Cal. 399, 90 P. 932, 1135, are not in point, for in each of the cases just mentioned defendants filed with either their answer or demurrer the necessary papers as required by the statute demanding a change of venue. Likewise Penniman v. Fuller & Warren Co. (1892), 133 N.Y. 442, 31 N.E. 318, is not controlling in the instant case, because it is contrary to the decisions of our own appellate courts mentioned above.
For the foregoing reasons the order granting defendant Bowell’s motion for a change of venue is reversed.
MOORE, P. J., and W. J. WOOD, J., concurred.