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11. Foreign corporation.-Venue of action against. 12. Affidavit of officer as to residence.
13. Application for removal of cause to federal court.
14, 15. Citizenship, diversity of.
16. Averment as to controversy between citizens of different states.
17. Citizenship distinguished from residence.
18. Mandamus to secure change of venue.
19. Right not affected by special appearance.
1. Jurisdiction conferred by application for change. Taking a change of venue by a defendant before the court in which the case is pending operates as an appearance to the merits and confers jurisdiction over the person: Feedler v. Schroeder, 59 Mo. 364; Speer v. Burlingame, 61 Mo. App. 75.
2. Guarantor.-Venue of action against. -A motion for change of venue was held to have been properly denied in an action in which the plaintiff joined as parties defendant an original obligor and his guarantor and laid the venue in the county in which the guarantor resided, where the motion was made by the obligor upon an affidavit stating that the claim of guaranty was false, and that the guarantor was made his co-defendant in order that the plaintiff might bring the action in the county in which the guarantor resided; and where a counter-affidavit was filed by the plaintiff to the effect that the guarantor was made defendant not for the purpose of controlling the venue in said action, but because, according to plaintiff's theory, plaintiff was entitled to judgment against either or both of said defendants, and further alleging that the guarantor was a bona fide resident of the county in which the summons was served: Senn v. Connelly (S. Dak.), 120 N. W. 1097, 1098.
3. The Arkansas statute (Kirby's Dig., 7996, 7998) construed.-The statute plainly means that if the plaintiff commences an action in a county other than that of his residence, or other than that of the county in which the occurrence of which he complains took place, unless he is compelled to do so in order to get service on the defendant, the latter shall have the right to a change of venue upon presentation of his petition in proper form, duly verified, containing allegations of the statutory grounds of prejudice or undue influence and supported by the affidavits of two credible witnesses: St. Louis etc. R. Co. v. Furlow, 81 Ark. 496, 499, 99 S. W. 689. The
language in section 7998 of the statute "upon presenting the petition," etc., plainly contemplates the petition duly verified and the supporting affidavits. If the legislature had intended that the supporting affidavits should accompany the petition as a prerequisite to the granting of a change of venue, it would have used the language "upon presentation of his petition duly verified, together with the supporting affidavits," but the assertion of the one excludes the use of the other. The proviso contained in the latter part of section 7998 is a limitation upon the preceding part of the section. While the conditions contained in the proviso exist, they defeat the operation of the first part of the section; in other words, the proviso conditionally limits the operation of the statute relative to change of venue. It provides that, when the conditions exist, the change of venue shall be granted as a matter of right upon presentation of the petition duly verified: St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 104.
4. Where an action is not commenced in the county of the plaintiff's residence, nor in the county where the occurrence complained of took place, and it is not necessary to bring the suit in the county in which the action was commenced in order to get service, the defendant, upon presentation of his petition duly verified, is entitled as a matter of right to a change of venue: St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102. 103, quoting and construing Kirby's Dig., §§ 7996, 7998, prescribing procedure to obtain an order for change of venue.
5. Divorce.-Change to where real action is joined.-Where in an action for divorce a real action is joined in the complaint, the defendant will be entitled to have the place of trial removed to the county of his residence. Such a case falls within the provisions of section 395 of the Code of Civil Procedure, and the action must be brought in a county wherein the defendant resides; and if
not, a suit so brought must be removed thereto: Le Breton v. Superior Court, 66 Cal. 30, 4 Pac. 777; Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. 381; Smith v. Smith, 88 Cal. 572, 26 Pac. 356; Warner v. Warner, 100 Cal. 11, 16, 34 Pac. 523.
6. Facts of defense not required to be set forth.-An affidavit of merits need not state the facts constituting a meritorious defense, but such affidavit should state in substance that affiant has fully and fairly stated the facts of the case to his counsel, and that such counsel had advised him that he has a good legal and meritorious defense. But where the court below seems to have been satisfied with an affidavit merely stating, in this respect, "that the defendant has a good legal and meritorious defense," there is no such abuse of discretion as would justify the appellate court in reversing an order made thereon, especially where such reversal would operate as a final bar to any defense on the part of the defendant: Howe v. Coldren, 4 Nev. 171, 177.
7. Demand and affidavit are essential. --Where a party fails at the time of interposing his demurrer to file an affi lavit of merits and a demand in writing for a change of the place of trial of the action, he thereby waives his right to such change, even if the facts in reality entitle him to a change: Bell v. Camm, 10 Cal. App. 388, 102 Pac. 225, 226, citing Cook v. Pendergast, 61 Cal. 78.
8. Affidavit of merits by counsel.-The propriety of counsel for a party making an affidavit as to the merits or legality of the defense is often called in question. Where counsel makes such an affidavit, the better practice would require that he, as affiant, in setting out that the defendant has a good legal and meritorious defense, allege or show in some way that he, as counsel, knows or is familiar with the facts in the case: Howe v. Coldren, 4 Nev. 171, 177.
9. An affidavit of merits in which the affiant, among other things, sets forth, "And after such statement I am advised, and verily believe, that I have a good defense on the merits to this action," etc.; held defective, upon the ground that the affiant should have stated that he was advised by his counsel that he had a good defense: Grangers' Union v. Ash, 12 Cal. App. 143, 106 Pac. 889, 890. [Author's note: Of this decision it might
well be said, "More subtile web Arachne can not spin." Where the affiant states, as in this case, that he had "fully and fairly stated the case to his counsel," naming him, and "after such statement I am advised," etc., it would hardly seem to require the services of a sleuth to discover who gave the advice.]
10. "Residence" of domestic trading corporation.-A domestic trading corporation resides, within the meaning of section 3951 of the California Code of Civil Procedure, in the county where its principal place of business is, and such place is where designated by its articles of incorporation: Jenkins v. California Stage Co., 22 Cal. 537; Cohn v. Central Pacific R. Co., 71 Cal. 488, 12 Pac. 498; McSherry v. Penn Co., 97 Cal. 637, 32 Pac. 711; Buck v. Eureka, 97 Cal. 135, 140, 31 Pac. 845, 846; Trezvant v. Strong, 102 Cal. 47, 36 Pac. 395.
11. Foreign corporation.-Venue of actions against.-The rule is different with respect to the right of foreign corporations to change the place of trial. the absence of any statutory provision fixing the place of trial, in actions against foreign corporations, such action may be brought and maintained in any county of the state. A foreign corporation exists in and by virtue of the law of the foreign country, and no statute of another state can give a local residence to such corporation where alone it can be sued. Its liability to be sued in the courts of such latter state no more confers a comity residence upon it than does the comity which permits it to apply to its courts for the enforcement of a contract for the redress of a wrong: Thomas v. Placerville G. Q. M. Co., 65 Cal. 600, 4 Pac. 641, 643; AngloCalifornian Bank v. Field, 146 Cal. 644, 650, 80 Pac. 1080; Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 42; Boyer v. Northern Pacific R. Co., 8 Idaho 74, 66 Pac. 826, 70 L. R. A. 691; Olson v. Osborne, 30 Minn. 444, 15 N. W. 876.
As to right of foreign corporations, in respect to change of place of trial on the ground of residence, see Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 42.
12. Affidavit of officer as to residence. -An affidavit of an officer of a foreign sanction corporation, without of the statute for such a proceeding, can not be held to admit such a corporation to
the constitutional rights and privileges of a domestic corporation with respect to its principal place of business for the purpose of establishing its residence in another state: Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 43.
clusion, where it precedes specific allegations of facts by way of explanation, or follows them as an inference to be drawn therefrom: O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 949, citing Neel v. Penn Co., 157 U. S. 153, 15 Sup. Ct. 589, 39 L. ed. 654; Continental Life Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. ed. 380; Grace v. American Central I. Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. ed. 932.
13. Application for removal of cause to federal court.-It has been held, where a petition for removal of a cause from a state to the federal court is made and based upon the theory that the cause of action or controversy involved is separable with reference to the parties joined as defendants, and that, although one of the defendants was a citizen of Colorado, the remaining defendant was a Wyoming corporation, such application is properly denied where the matters alleged in the complaint constitute concurrent acts of negligence against the defendants, and where on the face of the complaint it can not be said that the controversy is separable: Stratton Cripple Creek etc. Co. v. Ellison, 42 Colo. 498, 94 Pac. 303, 305, (negligence resulting in personal injuries suffered in a mine).
14. Citizenship, diversity of. To render an action removable to the federal court on the ground of alleged diversity of citizenship, is not enough to aver generally that plaintiff [or defendant] is not a citizen of a particular state, or not of the state in which the suit is pending: Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132.
15. Distinct statements of the citizenship of the parties, and of the particular state in which it is claimed such citizenship exists are required: Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 949.
16. Averment as to controversy between citizens of different states.-To aver that the controversy is between citizens of different states is but a con
17. Citizenship distinguished from residence.-Citizenship can not be inferred from an averment as to residence, for the reason that a person may be a citizen of a state although a resident of another: Continental Life 1. Co. V. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 20 L. ed. 380; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 950.
18. Mandamus to secure change of venue.-Mandamus lies to compel a judge to grant a change of venue where the moving party has a clear legal right thereto: State v. Dick, 103 Wis. 407, 79 N. W. 421, construing § 3069 Rev. Stats. 1898, under which an order denying change of venue is unappealable. See Gamble V. First Judicial Dist. Court, 27 Nev. 233, 74 Pac. 530. Compare People v. Church, 103 Ill. App. 132: Galbraith v. Williams, 21 Ky. Law Rep. 79, 106 Ky. 431, 50 S. W. 686. So, also, mandamus will lie to compel the court to hear and determine a motion for change of venue to the county of defendant's residence: Hennessy v. Nicol, 105 Cal. 138, 142, 38 Pac. 649.
19. Right not affected by special appearance. A special apearance by motion to strike out portions of the complaint made before or at the time of filing the demurrer is not such an appearance and submission to the court's jurisdiction as constitutes a waiver of the right to move for a change of venue: Wood v. Herrman Min. Co., 139 Cal. 713, 717, 73 Pac. 538.
Appearance and Default, and Substitution of Attorneys.
Form No. 1110. Application for entry of default...
Form No. 1111. Clerk's entry of default of defendant for fail-
§ 478. Substitution of attorneys ....
Form No. 1114. Notice of substitution of attorneys.
[Title of court and cause.]
To A. B., attorney for plaintiff:
Please take notice, that the undersigned appears in this action for the defendant, M. N., for the special purpose of [stating the special purpose] and for no other purpose.
C. D., Attorney for defendant, specially appearing.
FORM No. 1108-Notice of general appearance.
[Title of court and cause.]
To A. B., attorney for plaintiff [or other party, naming him]: Please take notice, that the undersigned appears for the defendant, M. N., in this action.
C. D., Attorney for defendant [or other party.]
FORM No. 1109-Acknowledgment of service.
[Title of court and cause.]
The undersigned, attorney for plaintiff, hereby acknowledges
service of [here naming the instrument served].
A. B., Attorney for plaintiff.
§ 477. DEFAULTS.
FORM No. 1110-Application for entry of default.
(From the record in Nixon v. Goodwin, 3 Cal. App. 358; 85 Pac. 169.) [Title of court and cause.]
In this action the defendant [M. C. Co.], having been regularly served with process, and having failed to appear and demur or answer to the plaintiff's complaint herein, and the legal time for demurring or answering having expired, application is hereby made by the plaintiff to the clerk of said court for the entry of a default against said defendant.
Dated June 4, 1901.
Tabor & Tabor, Attorneys for plaintiff.
FORM No. 1111-Clerk's entry of default of defendant for failure to appear. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.)
[Title of court and cause.]
In this action the defendant, Elizabeth Haskins, having been legally served with process, and having failed to appear and answer [or demur] to the complaint [in intervention] on file herein, and the time allowed by law for answering [or demurring] having expired, the default of said defendant in the premises is hereby duly entered according to law.
Attest my hand and seal of said court, this 11th day of September, 1897. C. F. Curry, Clerk.
By E. P. Peterson, Deputy Clerk.
FORM No. 1112-Stipulation to set aside judgment by default and to reopen
[Title of court and cause.]
It is hereby stipulated and agreed by and between the parties hereto, that the judgment entered herein on the
19 be set aside, and that the defendant be given leave to file his demurrer herein and pursue such other defenses as he may be advised.
It is further stipulated, that such order or orders may be made herein as may be necessary for the purposes of this stipulation.
A. B., Attorney for plaintiff.
C. D., Attorney for defendant.