Roberts v. Roberts

An action was commenced in the superior court of Alameda County to recover on a written contract for the payment of money. The defendant, who is the appellant here, filed with his demurrer to the complaint a demand and motion for a change of venue to Los Angeles County, where, according to his affidavit of merits, he resides. The motion was denied, and the appeal was taken from the order.

[1] It is alleged in the affidavit mentioned that defendant “fully stated all of the facts relating to said demand in this action to his counsel herein.” We are of the"opinion that a statement “of all the facts relating to said demand” was not equivalent to a statement of “the case” or of “the facts of the case,” and the affidavit in this particular was insufficient to meet the requirements of the rule established by the following cases: Nickerson v. California Raisin Co., 61 Cal. 268 ; People v. Larue, 66 Cal. 235 [ 5 Pac. 157 ]; Palmer v. Barclay, 92 Cal. 199 [ 28 Pac. 226 ]; Westover v. Bridgford, 25 Cal. App. 548 [ 144 Pac. 313 ]; Hanna v. Deroch, 52 Cal. App. 389 [ 198 Pac. 1006 ].

Appellant contends that the rule stated in the cases cited has been changed by the decision in Hughes v. Elliott, 167

[3] In the instant case defendant’s affidavit further avers that “after fully stating said facts to his said attorney he is advised that he has a good and meritorious defense to said action.”

As held in Walling v. Williams, 183 Cal. 600 [ 192 Pac. 34 ], and Jensen v. Dorr, 9 Cal. App. 19 [ 98 Pac. 45 ], this averment also was insufficient. In the latter case it was said: “Assuming, however, affiant did fully and fairly state all the facts to his counsel the affidavit is nevertheless defective in not stating in substance at least that he is advised by such counsel that he has a good and substantial defense on the merits. As shown by the affidavit, the advice referred to might have been obtained from a nonprofessional source. We cannot assume that by reason of his stating the facts to his counsel such counsel advised him that he had a meritorious defense. Non constat counsel for all that appears in the averment may have advised him that there was no merit in his case, and yet by reason of other advice the averment be strictly true.”

Appellant further contends that, notwithstanding these defects, his affidavit sets forth facts from which it appears that he has a meritorious defense to the action.

[4] The affidavit avers that by a judgment of the superior court of Alameda County, in an action between the same parties numbered 83587, as shown by the register of actions in that court, the provisions of the contract which are sought to be enforced in the instant case were adjudged to be void, and that the judgment was not appealed from and has become final. The record does not contain a copy of the judgment nor was the latter made a part of the affidavit except by reference. Such reference, however, was sufficient to warrant the trial court in taking judicial notice thereof (Sewell v. Johnson, 165 Cal. 762 [Ann. Cas. 1915B,

The order appealed from is affirmed.

Tyler, P. J., and Knight, J., concurred.