Marshall

Plaintiffs appeal from a judgment dismissing their action pursuant to Code of Civil Procedure, section 581b.

Plaintiffs filed their complaint in the San Francisco Superior Court charging injuries by reason of alleged medical malpractice. Respondents Benedict and Rafter, who were named as defendants, separately filed notices of motion for change of venue to Contra Costa County on the ground that they, and all other defendants, are residents of that county. By stipulation these motions were heard on September 15, 1954. No counteraffidavit or other opposition was presented and no appearance was made by appellants’ counsel at the hearing of the motions. The court by written order filed on September 15, 1954, granted the motion of Benedict and ordered the case transferred to Contra Costa County.

Appellants failed to pay the fees entailed by such transfer, as required by section 399, Code of Civil Procedure, for more than one year after the making of said order, and on September 21, 1955, counsel for respondents served and filed a notice of motion to dismiss the action pursuant to said section 581b, which provides that where the action was not commenced in the proper court and has…