Pennie v. Visher

California Supreme Court April 11, 1892

Pennie v. Visher, 94 Cal. 323 (Cal. 1892)

29 P. 711; 1892 Cal. LEXIS 683

Sharpstein

Opinion of the Court

Sharpstein, J.

D. M. Vance, one of the defendants in the above-entitled action, appeals from an order denying his motion to set aside the default entered against him, and from the judgment entered in said action. Appellant demurred to the plaintiff's complaint, and moved for a change of the place of trial upon an affidavit stating the grounds upon which his motion was based. The motion was overruled, and that ruling is complained of as being erroneous. We think the grounds specified for a change of the place of trial insufficient; and were they not, there does not appear to have been a demand for the change in writing, such as *326is required by section 396 of the Code of Civil Procedure. (Estrada v. Oreña, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348.) The demurrer was overruled before the motion for a change of the place of trial was. Both were properly overruled, and the order in which they were overruled could not in any way affect the substantial rights of the parties, as it might have done if the motion to change the place of trial had been granted after the demurrer was overruled. As it is, it appears to be nothing more serious than a harmless irregularity which we are bound to disregard.

After appellant’s demurrer was overruled, his default was entered for failure to answer, and he moved to set it aside. The grounds upon which that motion was based were insufficient to entitle the moving party to have the default set aside, and there was no abuse of the discretion of the court in denying it.

Judgment and order affirmed.

McFarland, J., Paterson, J., Garoutte, J., and De Haven, J., concurred."

Reference

Full Case Name: JAMES C. PENNIE, Administrator, etc. v. SEBASTIAN VISHER, D. M. VANCE
Cited By: 5 cases
Status: Published
Syllabus: Change‘of Place of'Trial —Venue of Real Action — Lands in Several Counties — Disclaimer. — Where an action is brought in one of several counties in which the lands are situated, to secure the cancellation and annulment of certain agreements relating to all of the lands described in the complaint, and to quiet title thereto as against several defendants, a disclaimer of the lands situated in the county in which the suit is brought will not entitle a defendant who resides in another county, in which alone he alleges that he claims lands adversely to the plaintiff, to a change of the place of trial to the county of his residence. Id. — Change to Place of Residence —• Demand at Time of Demurrer. — A motion for a change of the place of trial to the county of the defendant’s residence is properly denied where no demand for the change was made in writing at the time of appearing and demurring to the complaint, as required by section 396 of the Code of Civil Procedure. Id. —Overruling Demurrer Pending Improper Motion. —Where a defendant in an action demurred to the complaint, and improperly moved for a change of venue, the fact that the court overruled the demurrer before overruling the motion for a change of venue is not prejudicial error, if both the demurrer and the motion were properly overruled. Id. — Setting aside Default — Overruling Demurrer without Leave to Answer — Want of Notice. •—When the demurrer in such case was regularly placed upon the law calendar for argument, and heard and overruled in the absence of the defendant without granting leave to answer, the fact that no special notice was given to the defendant of the hearing or of the overruling of the demurrer, and that the motion to change the place of trial had not been heard or passed upon, is not sufficient ground for setting aside a default entered for failure to answer.