Goss

Plaintiffs appeal from an order granting defendant’s motion for a change of place of trial from the city and county of San Francisco, in which the action was commenced, to Stanislaus County, the county of defendant’s residence.

The moving papers are conceded to be in due and proper form and to entitle defendant to a change of venue, except that, concurrently with their service and filing, the defendant also filed a cross-complaint. The only point involved on appeal is whether defendant, by filing a cross-complaint with his answer at the time he filed the moving papers, waived his right to have the place of trial changed to the county of his residence.

Undoubtedly a failure to assert this right in the manner provided by section 396 of the Code of Civil Procedure would be deemed a waiver of the right. But defendant has strictly complied with the provisions of that section. It requires that a defendant file an affidavit of merits and make the demand for the change of the place of trial at the time he answers or demurs. This the defendant did. We do not think he lost the right which then arose under the statute merely because, in addition, he filed a cross-complaint. Section 442 “of…