Rowland v. Coyne

Thornton, J.: This action was brought in the Superior Court for the County of Los Angeles, against Joseph Coyne, the Sheriff of the County of San Diego, and the sureties on his official bond, to recover damages for an alleged breach by the Sheriff of the conditions in the instrument last named. Service of summons was made on all the defendants to the action in the County of San Diego, except Joseph Tasker, one of the sureties above referred to. [3] The action was commenced on the 6th of January, 1880, andón the 28th of the same month a demurrer was served and filed by Chase, Parker, and Smith, who signed the demurrer as “ attorneys for defendants.” The demurrer begins as follows: “And now come the defendants in the above entitled action, and for demurrer to,” etc. At the same time that this demurrer was filed and served, a demand in writing, that a trial of the case should be had in the County of San Diego, was served and filed by the above-named attorneys, on behalf of all the defendants, and an affidavit of merits was made by Joseph Coyne, and also an affidavit that all the defendants were, when the action was commenced, residents of the County of San Diego, and that no one of them resided in the County of Los Angeles; that Tasker was not, at that time, in the County of San Diego, but was then, and still is, temporarily living in the Territory of Arizona. The plaintiff did not comply with the demand, and on the same day on which the demand and affidavit of merits was filed and served, a notice was served on the attorney for plaintiff by the attorneys above mentioned, on behalf of all the defendants, that on the 2nd of February, 1880, a motion would be made, on the papers above mentioned, and on the pleadings and papers on file in the action, to change the place of the trial of the cause from the County of Los Angeles to the County of San Diego. This motion came on regularly to be heard, at which time those affidavits were read on the motion, which it is unnecessary, in the view we take of the cause, to refer to further. The Court granted the motion, to which an exception was taken, and from the order granting this motion this appeal is prosecuted. It is contended that Tasker had made no appearance in the action, and was not entitled to move for a change of the place of trial. We have seen that certain attorneys regularly demurred to the complaint for all the defendants. This is an appearance under the express provisions of the Code. (Code Civ. Proe. § 1014.) The case of Chester v. Miller, 13 Cal. 561, cited by counsel for plaintiff, has no bearing on this question. The remarks of the Court in that case, in regard to the meaning of a recital of appearance by defendants, referred to a recital in the docket of a Justice of the Peace. We must hold the above [4] an appearance of Tasker, or repeal the statute. The latter we cannot do. It is argued that the affidavit of merits is insufficient. It is as follows: “Title of Court and Cause. Affidavit of Joseph Coyne. Joseph Coyne, being first duly sworn, on oath says: I - am the principal defendant in this action, and have a personal knowledge of the matters to be put in issue therein. That I have fully and fairly stated the facts in this case to my counsel, Levi Chase, E. Parker, and Will. M. Smith, and after said statement they informed me that I had a good and valid defense upon the merits to said action, and to all of it, all of which I verily believe to be true. Joseph -Coyne. • “ Subscribed and sworn to before me, this 27th day of January, 1880. Gilbert Renne, . “ [Notarial Seal.] ■ Notary Public.” The criticism is, that the affiant Coyne swore to the fact only that his counsel informed, him that he had a good and sufficient defense, etc. We do not so construe the affidavit. Coyne, in our opinion, deposed to the fact that he was informed by counsel as he states, and further, that he then believed all of' it. The affidavit is sufficient. There is nothing in the objection that the affidavit of merits-was made by one of the defendants only. It was used on behalf of all. If Coyne, the Sheriff, had a defense on' the merits, it followed that the defendants, his sureties, had the same. We find no error in the record. The order was properly made, and is affirmed. Sharpstein, J., and Myrick, J., concurred.