Fernandez v. Fernandez

Annotate this Case
[L. A. No. 16705. In Bank. July 25, 1938.]

LOUIS FERNANDEZ, Respondent, v. ROSE FERNANDEZ, Appellant.

COUNSEL

Morris Lavine for Appellant.

Fred A. Shaeffer for Respondent.

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. (Sec. 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.

[1] 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. (Sec. 396b, Code Civ. Proc.)

[2] 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 case 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 P. 1112]; Henry v. Willett, 60 Cal. App. 244 [212 P. 698]; [11 Cal. 2d 570] People v. Larue, 66 Cal. 235 [5 P. 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.