change the place of trial on the ground of the disqualification of the judge, which was taken under advisement by the disqualified judge and never passed upon, and was again called up for hearing before his successor, who was qualified to try the case, is to be tested by the conditions existing when the motion is passed upon, and the qualified judge may properly deny the motion.85 Under the Missouri statute,se where the change of venue is sought on the ground of local prejudice, and the adverse party has filed counter-affidavits, the court must hear evidence on the issue and determine the matter on the merits.87 The motion will be denied where it is clear that the object of the motion is merely delay;88 e. g. where nearly six months had elapsed before the motion was made and long after the defendant had answered.89 The motion will also be denied where, by stipulation, evidence is confined to facts occurring in the county where the action is brought." 91 An application by the defendants for a change of venue to another county on the ground that they are residents of such county, that the action is founded on the contract to be performed therein, and that the summons was there served on them, but which does not say that the plaintiff was not a resident of the county where the action is brought when the suit was commenced, is properly refused. But it has been held that where a motion for a change of venue to the proper county of trial has been made. upon a sufficient affidavit of merits, the failure of the applicant for transfer to appear at the time set for the hearing of his motion affords no ground for denying the application;92 and the averment by the plaintiff that he was ignorant of the place or residence of the defendant when the action was commenced, without showing that he used all proper diligence to ascertain his residence before suit and failed, does not entitle the plaintiff to have a trial of the action in a county designated by him other than that of the defendant's residence.o 93 85 Santa Cruz Bank of Savings v. Taylor, 125 Cal. 249, 57 Pac. 987. 86 Rev. Stats. 1899, § 822. 87 Eudaley v. Kansas City etc. R R. Co., 186 Mo. 399, 85 S. W. 366. 88 Dennison v. Chapman, 102 Cal. 618, 36 Pac. 943; Killbourne v. Fairchild, 12 Wend. 293; Garlock v. Dun kle, 22 Cal. 615. 89 Tooms v. Randall, 3 Cal. 438. 90 Smith v. Averill, 1 Barb. 28; Stockton Combined Harvester etc. Works v. Houser, 103 Cal. 377, 37 Pac. 179. 91 DeWein v. Osborn, 12 Colo. 407, 21 Pac. 189. 92 State v. Superior Court, 9 Wash. 668, 38 Pac. 206. 93 Thurber v. Thurber, 113 Cal. 607, 45 l'ac. 852; Bachman v. Cathry, § 1000. Effect of motion on court's power.-A motion for the change of the place of trial intercepts all judicial action in the case, and suspends the power of the court to act upon any other question until the motion has been determined." Pending the hearing of the motion, and until it is passed upon, the court has no jurisdiction to hear and determine any demurrer to the complaint, and its order made in passing upon the same is a nullity. If the motion should be granted, the defendant is entitled to have the demurrer passed upon in the county to which the change is to be made. The judge of the second court may direct the correction of a clerical error made in the court from which the case was transferred.90 95 § 1001. Mandamus to compel hearing.-A writ of mandate will issue from the supreme court to compel a superior judge to hear and determine a motion made in an action pending in his court for a change of the place of trial of the action to the place of the defendant's residence.97 When a motion for the change of venue is denied without delay, and appeal from the order affords a complete remedy, mandamus will not lie to compel the court to change the place of trial. Mandamus is only proper when the court unreasonably delays to decide the motion.98 § 1002. Appeal from order.-An appeal from an order refusing to change the venue of an action does not operate to stay proceedings in a court below until such appeal is determined.99 Under the Nevada practice, an order changing the place of trial is not appealable, but is properly brought before the court on an appeal from the judgment, as an intermediate order involving the merits and necessarily affecting the judgment.100 The refusal of a justice. of the peace to allow a change of venue upon an affidavit showing the interest, prejudice, and bias of the justice, although erroneous 113 Cal. 498, 45 Pac. 814; Mahler v. 94 Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209. 95 Nolan v. McDuffie, 125 Cal. 334, 58 Pac. 4. 96 United Zine Co. v. Morrison, 76 Kan. 799; 92 Pac. 1114. 97 Hennessy v. Nicol, 105 Cal. 138, 38 Pac. 649. 98 San Joaquin County v. Superior Court, 98 Cal. 602, 33 Pac. 482; In re Davis Estate, 11 Mont. 1, 27 Pac. 342. 99 Howell v. Thompson, 70 Cal. 635, 11 Pac. 789. 100 State v. Shaw, 21 Nev. 222, 29 Pac. 321. and subject to reversal upon appeal, does not render subsequent proceeding before such justice void for want of jurisdiction.10 Upon an appeal from an order changing the place of trial, where the bill of exceptions, settled without notice, has been stricken from the files of the superior court, and by the supreme court from the transcript on appeal, leaving nothing but the notice of appeal and clerk's certificate as to the undertaking, it is the duty of the supreme court to dismiss the appeal of its own motion, without considering a motion to dismiss it for failure by the applicant to serve and file points and authorities. 102 An order changing the place of trial will be presumed to have been properly made when the record on appeal from the order does not contain any papers identified as having been used in the lower court on the hearing of the motion to change.108 FORMS FOR CHANGE OF VENUE. § 1003. Demand for change. [TITLE.] Form No. 327. I hereby demand that the place of trial of this cause be changed to the proper county, viz. the county of . [DATE.] [SIGNATURE.] § 1004. Consent to change. [TITLE.] Form No. 328. Take notice, that the above-named plaintiff consents that the place of trial of this action be changed to . . . county. [DATE.] 101 Ritzman v. Burnham, 114 Cal. 522, 46 Pac. 379. 102 Tingley v. Otis, 141 Cal. 71, 74 Pac. 448. E. F., Plaintiff's Attorney. 103 McAulay v. Truckee Ice Co., 79 Cal. 50, 21 Pac. 434. § 1005. Demand for change by defendant's attorney, combined with notice of retainer. [TITLE.] Form No. 329. Take notice, that the undersigned is retained by, and hereby appears for, the defendant in the above-entitled action; and that the defendant demands that the trial of this action be had within the county of . . ., for the reason that the said defendant, at the time of the commencement of this action, resided, and still resides, in the city of . in said county of . You will please take notice that the defendant will move this court, at the courtroom thereof, on the . . . day of . . . 19.., at ten o'clock A. M., of said day, or as soon thereafter as counsel can be heard, for an order changing the place of trial of this action to the superior court in and for the county of . . . Said motion will be made upon affidavits, copies of which are herewith served upon you, and upon the demand to change the place of trial, and the papers on file in the case, upon the following grounds: I. That the property in controversy is situated in said . . county. county. for an II. That the defendants are both residents of said III. That this is an action against said defendant, act done by him in virtue of his office, said defendant being sheriff of . . . county. [DATE.] A. B., Defendant's Attorney. § 1007. Affidavit for change on failure to consent. [TITLE.] [VENUE.] Form No. 331. C. D., being duly sworn, on oath says that he is the defendant [or, one of the attorneys of the defendant] in the above-entitled action. The said action was commenced on the . . . day of . . 19.. ; that at the time of the commencement of this action the said defendant resided, and still resides, in the city of . . ., in the county of ; and that he has a good and sufficient defense to the alleged cause of action set out in plaintiff's complaint. That on the . . . day of . . ., 19.., the defendant's attorneys served on the attorneys for the plaintiff a demand in writing that the place of trial of this action be changed to . . . county, of which demand a copy is hereto annexed. ... That no written consent to said change has been served by the plaintiff's attorneys on the defendant's attorneys, or received by them in this action. C. D. § 1008. Statement of ground-Not the proper county from situation of subject-matter. Form No. 332. That this is an action for the recovery of real property [or, of an estate, or interest therein; or, for the determination in some form of such right or interest; or, for injuries to real property], and that the said real property is wholly situate in the said last-named county.104 [Or, that this is an action for the partition of real property, which said property is wholly situate in the said county to which the desired change is asked.]105 [Or, that this is an action for the foreclosure of a mortgage of [or, lien upon] real property, and that the land in said mortgage [or, lien] described is wholly situate in said last-named county.] 106 § 1009. arose. The same-Not the county where cause of action That this is an action for the recovery of a penalty or forfeiture imposed by statute, except, etc.;107 and that it arose in the said last-named county. [Or, that this is an action against defendant, being the . . . of said last-named county, and a resident thereof;108 or, when the act 104 Cal. Code Civ. Proc., § 392, subd. 1. 105 Id., subd. 2. 108 Id., subd. 3. 107 See Cal. Code Civ. Proc., § 939, subd. 1. 108 Cal. Code Civ. Proc., § 393, subd. 2. |