Fernandez v. Fernandez

California Supreme Court

Fernandez v. Fernandez

81 P.2d 913, 11 Cal. 2d 568, 1938 Cal. LEXIS 329

CourtCalifornia Supreme Court

DecidedJuly 25, 1938

DocketL. A. 16705

StatusPublished

Cited by7 cases

This text of 81 P.2d 913 (Fernandez v. Fernandez) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fernandez v. Fernandez, 81 P.2d 913, 11 Cal. 2d 568, 1938 Cal. LEXIS 329 (Cal. 1938).

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Opinion

WASTE, C. J.

Plaintiff brought this action for divorce in the Superior Court of Santa Barbara County. Defendant filed a demurrer to the complaint with a supporting affidavit wherein she alleged that her legal residence was Los Angeles, and she prayed for a transfer of the cause to that county. (See. 395, Code Civ. Proc.) The court, after hearing the matter, overruled the demurrer and also made an order denying motion for change of venue. Defendant appealed from the latter ruling. Plaintiff now moves this court to dismiss the appeal or affirm the order.

The denial of defendant’s request for transfer of the cause was proper. Defendant failed to file a notice of motion for change of venue. Neither did she file an affidavit of merits. Both are required. (See. 396b, Code Civ. Proc.)

The affidavit filed by defendant with her demurrer merely alleged that she was actually a resident of Los Angeles, giving her address, and that she had resided in the city of Los Angeles, county of Los Angeles, for more than one year last past. If this was intended to be an affidavit of merits, it was clearly insufficient in that it failed to allege in substance that defendant had fully and fairly stated the ease and all the facts thereof to her attorney, and that after such statement she was advised by her attorney and verily believed that she had a good and substantial defense on the merits. (Roberts v. Roberts, 81 Cal. App. 499 [253 Pac. 1112]; Henry v. Willett, 60 Cal. App. 244 [212 Pac. 698]; *570 People v. Larue, 66 Cal 235 [5 Pac. 157]; 25 Cal. Jur., p. 901, sec. 34.)

The order is affirmed.

Shenk, J., Houser, J., Seawell, J., Langdon, J., Edmonds, J., and Curtis, J., concurred.

Rehearing denied.

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WASTE, C. J.

Plaintiff brought this action for divorce in the Superior Court of Santa Barbara County. Defendant filed a demurrer to the complaint with a supporting affidavit wherein she alleged that her legal residence was Los Angeles, and she prayed for a transfer of the cause to that county. (See. 395, Code Civ. Proc.) The court, after hearing the matter, overruled the demurrer and also made an order denying motion for change of venue. Defendant appealed from the latter ruling. Plaintiff now moves this court to dismiss the appeal or affirm the order.

The denial of defendant’s request for transfer of the cause was proper. Defendant failed to file a notice of motion for change of venue. Neither did she file an affidavit of merits. Both are required. (See. 396b, Code Civ. Proc.)

The affidavit filed by defendant with her demurrer merely alleged that she was actually a resident of Los Angeles, giving her address, and that she had resided in the city of Los Angeles, county of Los Angeles, for more than one year last past. If this was intended to be an affidavit of merits, it was clearly insufficient in that it failed to allege in substance that defendant had fully and fairly stated the ease and all the facts thereof to her attorney, and that after such statement she was advised by her attorney and verily believed that she had a good and substantial defense on the merits. (Roberts v. Roberts, 81 Cal. App. 499 [253 Pac. 1112]; Henry v. Willett, 60 Cal. App. 244 [212 Pac. 698]; *570 People v. Larue, 66 Cal 235 [5 Pac. 157]; 25 Cal. Jur., p. 901, sec. 34.)

The order is affirmed.

Shenk, J., Houser, J., Seawell, J., Langdon, J., Edmonds, J., and Curtis, J., concurred.

Rehearing denied.

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81 P.2d 913, 11 Cal. 2d 568, 1938 Cal. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-fernandez-cal-1938.

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