Butterfield

In this action for divorce defendant filed a demurrer and motion for change of venue, but failed to file points and authorities in support of either. At the instance of counsel for plaintiff, the trial court denied the motion, without prejudice, and overruled the demurrer, solely on this ground. Defendant appealed. The question presented by the appeal is whether there is a mandatory duty on the defendant seeking a change of venue to file points and authorities in support of the motion under Rule XIX of the rules governing the business of the superior court. ( 213 Cal. lxxxviii .)

Defendant contends that in making his motion he complied with the provisions of section 396 of the Code of Civil Procedure, which section makes no requirement of filing points and authorities, and that the court rule invoked against him deprives him of a statutory right and is therefore void. It is true that a rule inconsistent with a statute can have no validity; but the mere fact that the rule goes beyond the statutory provision does not make it inconsistent therewith. In Helbush v. Helbush, 209 Cal. 758 [ 290 Pac. 18 ], the defendant applied for a final decree of divorce without filing the affidavit…