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11. Foreign corporation.-Venue of action against.
13. Application for removal of cause to federal court. 14, 15. Citizenship, diversity of.
16. Averment as to controversy between citizens of different states.
19. Right not affected by special appearance. 1. Jurisdiction conferred by applica- language in section 7998 of the statute tion for change.—Taking a change of "upon presenting the petition," etc., venue by a defendant before the court plainly contemplates the petition duly in which the case is pending operates verified and the supporting affidavits. as an appearance to the merits and con- If the legislature had intended that the fers jurisdiction over the person: Feed- supporting affidavits should accompany ler v. Schroeder, 59 Mo. 364; Speer v. the petition as a prerequisite to the Burlingame, 61 Mo. App. 75.
granting of a change of venue, it would 2. Guarantor.-Venue of action against. have used the language "upon presen-A motion for change of venue was tation of his petition duly verified, toheld to have been properly denied in gether with the supporting affidavits," an action in which the plaintiff joined but the assertion of the one excludes as parties defendant an original obligor the use of the other. The proviso conand his guarantor and laid the venue in tained in the latter part of section 7995 the county in which the guarantor re- is a limitation upon the preceding part sided, where the motion was made by of the section. While the conditions the obligor upon
affidavit stating contained in the proviso exist, they de. that the claim of guaranty was false, feat the operation of the first part of and that the guarantor was made his the section; in other words, the provise co-defendant in order that the plaintiff conditionally limits the operation of the might bring the action in the county in statute relative to change of venue. It which the guarantor resided; and where provides that, when the conditions exa counter-affidavit was filed by the ist, the change of venue shall be grantplaintiff to the effect that the guarantor ed as a matter of right upon presentawas made defendant not for the purpose tion of the petition duly verified: St. of controlling the venue in said action, Louis etc. R. Co. v. McNamare, 91 Ark. but because, according to plaintiff's 515, 122 S. W. 102, 104. theory, plaintiff was entitled to judg- 4. Where an action is not commenced ment against either or both of said de- in the county of the plaintiff's residence. fendants, and further alleging that the nor in the county where the occurrence guarantor was a bona fide resident of
complained of took place, and it is not the county in which the summons was necessary to bring the suit in the county served: Senn v. Connelly (S. Dak.), 120 in which the action was commenced in N. W. 1097, 1098.
order to get service, the defendant, upon 3. The Arkansas statute (Kirby's presentation of his petition duly veri. Dig., $$ 7996, 7998) construed.-The stat- fied, is entitled as a matter of right to a ute plainly means that if the plaintiff change of venue: St. Louis etc. R. Co. v. commences an action in a county other McNamare, 91 Ark. 515, 122 S. W. 102. than that of his residence, or other than 103, quoting and construing Kirby's that of the county in which the occur- Dig., $$ 7996, 7998, prescribing procedure rence of which he complains took place, to obtain an order for change of venue. unless he is compelled to do so in order 5. Divorce.-Change to where, real ac. to get service on the defendant, the lat- tion is joined.-Where in an action for ter shall have the right to a change of divorce a real action is joined in the comvenue upon presentation of his petition plaint, the defendant will be entitled to in proper form, duly verified, containing have the place of trial removed to the allegations of the statutory grounds of county of his residence. Such a case prejudice or undue influence and sup- falls within the provisions of section ported by the affidavits of two credible 395 of the Code of Civil Procedure, and witnesses: St. Louis etc. R. Co. v. Fur- the action must be brought in a county low, 81 Ark. 496, 499, 99 S. W. 689. The wherein the defendant resides; and if 9. An affidavit of merits in which the afflant, 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
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: Howev. Coldren, 4 Nev, 171, 177.
7. Demand and affidavit are essential. --Where a party fails at the time of intorposing 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.
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. In 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., S 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 corporation, without sanction 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.
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 inade 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 stales is but a con
clusion, where it precedes specific alle. gations of facts by way of explanation, or follows them as an inference to be drawn therefrom: O'Connor v. Chicago etc. Co. (10wa), 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.
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. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 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 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.
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$ 476. Appearances
Form No. 1107. Notice of special appearance..
Form No. 1109. Acknowledgment of service. $ 477. Defaults.
Form No. 1110. Application for entry of default....
ure to appear
and to reopen cause......
judgment $ 478. Substitution of attorneys
Form No. 1114. Notice of substitution of attorneys..
stitution. $ 479. Annotations .
1825 1825 1825 1823
$ 476. APPEARANCES.
[Title of court and cause.)
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.
[Date.) C. D., Attorney for defendant, specially appearing. FORM No. 1108—Notice of general appearance.
(Title of court and cause.)
Please take notice, that the undersigned appears for the defendant, M. N., in this action. (Date.]
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). (Date.]
A. B., Attorney for plaintiff.
$ 477. DEFAIJLTS. 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, [Endorsement of filing.)
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.
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 day of 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. [Date.]
A. B., Attorney for plaintiff.