the fact that before its determination another defendant has been served who has failed to join in the application.2 The right of the defendant to have the venue changed to the county of his residence is not affected by the joinder of another defendant who is not a necessary party and against whom no cause of action is stated."

43

44

The venue of an action for damages commenced in a county in which none of the defendants reside will be changed to the proper county on the application of the defendants who have been served with process; but if one of the defendants resides in the county in which the action is commenced, it may properly be tried there, and an order refusing to change the venue to the county in which. other of the defendants reside will not be disturbed.45 At least, a motion to change the venue to the county in which other of the defendants reside will not be granted, unless all of the defendants have joined in the motion, or unless good reason is shown why they have not so joined. One who is involuntarily substituted as the sole defendant in an action, is entitled to a change of venue to the county in which he resides, notwithstanding the failure of the original defendant to demand such change."

46

48

§ 995. Affidavit of merits.-An affidavit of merits, which declares "that the defendant has fully and fairly stated the case to his counsel; that he has a good and substantial defense on the merits to the whole of the plaintiff's demand, as he is advised by his counsel, and verily believes to be true," is sufficient. The affiant should aver that he has fully and fairly stated "the case" (not "his case") to his attorney." There is no essential difference, however, between an affidavit of merits which states that the defendant "has fully and fairly stated the case in this action" and one which states "that he has fully and fairly stated the facts of the said case.

99 50

42 State v. Superior Court, 9 Wash. 668, 38 Pac. 206.

43 Sayward v. Houghton, 82 Cal. 628, 23 Pac. 120.

44 Rathgeb v. Tiscornia, 66 Cal. 96, 4 Pac. 987.

45 Hirshfeld v. Sevier, 77 Cal. 448, 19 Pac. 819.

46 McKenzie v. Barling, 101 Cal. 459, 36 Pac. 8.

47 Howell V. Stetefeldt Furnace Co., 69 Cal. 153, 10 Pac. 390.

48 Watkins v. Degener, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553; Rowland v. Coyne, 55 Cal. 1; Butler v. Mitchell, 17 Wis. 52.

49 People v. Larue, 66 Cal. 235, 5 Pac. 157.

50 Rathgeb v. Tiscornia, 66 Cal. 96, 4 Pac. 987; Eddy v. Houghton, 6 Cal. App. 85, 91 Pac. 397.

An affidavit of merits, otherwise good, is not defective because. of failure to allege that the affiant believes the advice of his counsel.51 Nor is it insufficient because of the omission of the names of the defendants from the title of the action, where the notice of the motion states that the motion will be made "upon the affidavit and demand of defendant to change the place of trial annexed and served with the said notice, and upon said notice and all the pleadings on file in said action," and both the notice and demand were duly entitled in the action and the affidavit was filed with the notice.52 But an affidavit of merits averring merely that the affiant had fully and fairly stated to the attorney all the facts constituting the defense of the defendants, instead of the facts of the case, is insufficient.53 It has been held that where it appears from the affidavit of merits that the defendant is entitled to file an answer which will raise issues for trial, which he desires to have tried in the proper county, the affidavit is sufficient.54

The affidavit of merits must be made and served with the notice of the motion.55 It is a common and convenient practice to combine the affidavit of merits with the affidavit of the ground on which the motion is made, where the latter does not appear upon the face of the complaint, and has to be established by affidavit.50 The affidavit may be made by the attorney of the party applying for the change of venue, if it shows sufficient reason for not being made by the party himself.57

Where the affidavits issued upon a motion to change the place of trial go mostly to the merits of the action, and all the statements therein are controverted by conflicting affidavits, the ruling of the court will not be reversed upon appeal. 58

§ 996. Contents of affidavit stating grounds. In an affidavit for change on the ground that an impartial trial cannot be had, it is necessary to state the facts and circumstances which induce the belief that such trial cannot be had, in order that the court may

51 Watt v. Bradley, 95 Cal. 415, 30 Pac. 557.

52 Id.

53 Palmer v. Barcley, 92 Cal. 199, 28 Pac. 226.

54 State v. Superior Court, 9 Wash. 668, 38 Pac. 206.

55 Lynch v. Mosher, 4 How. Pr. 86.

56 State v. Superior Court, 9 Wash. 668, 38 Pac. 206.

57 Nicholl v. Nicholl, 66 Cal. 36, 4 Pac. 882; Scott v. Gibbs, 2 Johns. Cas. 116.

58 McKenzie v. Barling, 101 Cal. 459, 36 Pac. 8.

determine whether the belief is well founded; the affidavits of individuals as to their belief that an impartial trial cannot be had are insufficient.59 An application for a change of venue based on the ground of prejudice of the people of the county will be denied where it is shown that an equal number of citizens of the county testify that in their opinion an impartial trial can be had.6°

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Under a statute providing that the judge shall grant a change of the venue when either party to a civil action shall file an affidavit that the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant or to his cause of defense, if an affidavit is filed setting up the existence of such facts in the words of the statute, a court has no discretion to refuse the change. Under the New Mexico statute," an application wili not be granted on the ground that a fair trial cannot be had within the county, if the affidavit does not set out the facts. Where two counties are united for judicial purposes, an affidavit for a change from either is insufficient, unless it shows that the prejudice alleged extends to the inhabitants of both.64

63

66

Where the motion is made on account of the convenience of witnesses, an affidavit should set out the facts to be proved, and their materiality must be shown.65 The affidavit should state the witnesses' names and residences; the mere statement that they are residents of the county is not sufficient. It must also appear that each and every one is a necessary witness, and that without the testimony of each the affiant could not safely proceed. It is not necessary, however, to state that the affiant expects to be able to procure the attendance of the witnesses at the trial.68 Where the motion is made on the ground of the disqualification of the

59 Bowman v. Ely, 2 Wend. 250; People v. Bodine, 7 Hill, 147; People v. Vermilyea, 7 Cow. 108; Scott v. Gibbs, 2 Johns. Cas. 116; Sloan v. Smith, 3 Cal. 410; State v. Millain, 3 Nev. 409; Williams V. United States, 6 Indian T. 1, 88 S. W. 334. 60 State v. Rooke, 10 Idaho, 388, 79 Pac. 82.

61 Perkins v. McDowell, 3 Wyo. 203, 19 Pac. 440.

62 N. Mex. Comp. Laws, § 1833. 63 Lady Franklin Min. Co. v. Delaney, 4 N. Mex. 39, 51, 12 Pac. 628.

69

judge, an affidavit which states "that the judge, as the affiant is informed and verily believes, has frequently stated that he believes the affiant guilty of the crime charged in the indictment, and has frequently expressed himself against and adversely to the affiant in connection with said charge," will not be considered, as it contains a mere charge upon information and belief, and does not show how the information was obtained or upon what the belief was based, An affidavit for change setting forth bias or prejudice on the part of the judge can form no excuse or justification for language and statements used in the affidavit constituting disorderly, contemptuous, and insolent behavior toward the judge of the court; and such behavior may be punished as contempt." In an affidavit made in the support of a motion for a change of venue on the ground of non-residence, the naked declaration that a party was a resident of the certain county at the commencement of the suit is a mere conclusion."

70

§ 997. Affidavit on ground of disqualification of judge. This affidavit is rarely if ever made; the bare suggestion to the judge of one of the statutory grounds for disqualification being sufficient. A disqualified judge is, without discretion, absolutely required to transfer the cause.72 In a suit to protect decreed water priorities, a change of venue is not required because the judge was an attorney in the former suit when the priorities were adjudicated.73 Change may be had to some court agreed upon by the parties in writing or in open court and entered in the minutes, or if they do not agree, then to the nearest or most accessible court where a like objection does not exist. If in a superior court, the cause should be transferred to another superior court; if in a justice's court, to another justice's court in the same county.74

§ 998. Affidavit resisting motion for change. Counteraffidavits opposing a motion made on the ground of convenience of witnesses should be in form and substance similar to the moving

69 People v. Williams, 24 Cal. 31. 70 Matter of Jones, 103 Cal. 397, 37 Pac. 385.

71 Boyle v. Standard Oil Co., 102 App. Div. 623, 92 N. Y. Supp. 677.

72 Cal. Code Civ. Proc., § 398; Parrish v. Riverside Trust Co., 7 Cal. App. 95, 93 Pac. 685.

73 Kerr v. Burns, 42 Colo. 285, 93 Pac. 1120.

74 Cal. Code Civ. Proc., § 398; Ariz. Civ. Code, pars. 1701-1704; Idaho Rev. Codes, § 4126; Mont. I.ev. Codes, 6507; Nev. Comp. Laws, § 3116; N. Mex. Comp. Laws, § 2879; Or. B. & C. Codes, § 45; Utah Rev. Stats., § 102; Wash. Bal. Codes, § 4857; Wyo. Rev. Stats.. § 4282; Colo. (Mills') Stats., § 4631.

affidavits of the defendant, and should state what is expected to be proved by the witnesses, and the names of the witnesses. should also be stated." Where the plaintiff files affidavits showing that the convenience of witnesses requires a change of the place of trial, if the defendant files a stipulation admitting that all the facts alleged and to be proved by such witnesses are true, and thus obviates the necessity of proving them, no counter-affidavits are necessary."

78

77

79

In New York, a motion made on the ground of the convenience of witnesses cannot be resisted by the plaintiff prior to issue joined. In California, the practice is the same, although formerly a different opinion prevailed. Nor can the hearing of defendant's motion, made at the time of his appearance and demurrer, be postponed until his answer is filed, and leave granted to the plaintiff to make a cross-motion to retain the case on the ground of convenience of witnesses.8 80

If the plaintiff desires to re-change to the county in which the action is brought, he should make a cross-motion to that effect.81 If the state of the case is such that the plaintiff has the right to resist the motion for a change of venue, time to file counteraffidavits may be allowed him, in the discretion of the court.82

§ 999. Hearing of motion. The trial court may properly consider the allegations of the complaint in determining the motion. for the change of the place of trial, where the defendant's notice of motion stated that it would be based upon certain affidavits, "and upon all the papers, files, records, and proceedings" in the action.83 Affidavits on the motion must be limited to the issues made, and if issue is not joined upon an amended pleading which had been served long prior to the hearing of a motion, affidavits to the contrary are not material. The ruling upon a motion to

75 American Exchange Bank V. Hill, 22 How. Pr. 29; Onondaga County Bank v. Shepherd, 19 Wend. 10.

76 Loehr v. Latham, 15 Cal. 418. 77 Stockton Combined Harvester etc. Works v. Houser, 103 Cal. 377, 37 Pac. 179.

78 International etc. Co. v. Sweetland, 14 Abb. Pr. 240.

79 Cook v. Pendergast, 61 Cal. 72; Bailey v. Sloan, 65 Cal. 387, 4 Pac.

349.

84

80 Heald v. Hendy, 65 Cal. 321, 4 Pac. 27. But see Allis v. White, 70 Minn. 189, 72 N. W. 1070, where rule is held to be different under local statute.

81 Cook v. Pendergast, 61 Cal. 72. 82 Pierson v. McCahill, 22 Cal. 127; Hyde v. Harkness, 1 Idaho, 602.

83 Lakeshore Cattle Co. v. Modoc Land etc. Co., 108 Cal. 261, 41 Pac. 472.

84 Miller & Lux v. Kern County Land Co., 140 Cal. 132, 73 Pac. 836.