Weber v. Purdy

BARNARD, P. J. This is an appeal from an order denying the defendant’s motion for a change of venue. The complaint alleges that the plaintiff and defendant are the parents of three minor children; that for more than a year prior to December, 1945, they all resided in Kern County; that in December, 1945, the defendant deserted and abandoned the plaintiff and said children; that these children have remained with the plaintiff in Kern County; that the defendant obtained a decree of divorce from the plaintiff in Nevada in March or April, 1946, which decree contains no provision respecting the care, custody and control of said minor children; that the defendant has remarried and since the divorce decree has resided in Marin County or in counties other than the county of Kern; that plaintiff is a fit and proper person to have the care, custody and control of these children; and that the defendant is not a fit and proper person to have such care, custody and control. The prayer is that the care, custody and control of these children be awarded to the plaintiff. The defendant filed a demurrer and also a motion for change of venue to Marin County with her affidavit which *483 recites only that she has a meritorious defense to the action, and that she was at the time the action was begun, and ever since has been, a resident of the county of Marin. No memorandum of points and authorities were served or filed. The court denied the motion for a change of venue and this appeal followed. The only point raised is that the order was erroneously entered since section 395 of the Code of Civil Procedure provides that the county of defendant’s residence is the proper place for the action to be tried. The respondent relies on the appellant’s failure to comply with rule XIX of the Rules of the Superior Court, which provides that a memorandum of points and authorities relied on must be served and filed with the notice of motion. Under almost exactly similar circumstances the Supreme Court in Butterfield v. Butterfield, 1 Cal.2d 227 [34 P.2d 145], affirmed an order denying a motion for change of venue. It was there said: “Appellant had a statutory right to a change of venue upon a proper showing of grounds therefor; and the rule requiring points and authorities is a reasonable provision in furtherance of the statutory purpose. No possible hardship can fall upon the party who must comply with the rule; and appellant makes no claim to that effect.” Under authority of that case, the order appealed from is affirmed. Marks, J., and Griffin, J., concurred.