Bohn

Plaintiff on the 19th of April, 1910, filed his complaint against defendant, alleging ownership of and right of possession to each of twenty-eight head of cattle in defendant’s pasture in Los Angeles county, California; further alleging wrongful detention thereof by defendant, with demand and a prayer for judgment for the possession, or the value if the same could not be had. Process was regularly served upon defendant, and within due time, to wit, on the twenty-second day of April, 1910, defendant filed a demurrer to the complaint, and at the same time filed an affidavit setting forth that defendant was at the time of the commencement of the action and at the date of the filing of the affidavit, and for many years previous thereto had been, a resident of Los Angeles county; filed in addition thereto an affidavit of merits, with a demand in writing that the action be transferred from the superior court of Orange county to the superior court of Los Angeles county. A copy of these affidavits and demand were upon the same day served upon counsel for plaintiff. The clerk of the superior court of Orange county placed said motion upon the regular law and motion calendar for hearing…

I concur in the judgment. Where the county wherein the action is commenced is not the proper county for the trial thereof, and such fact is made to appear by an affidavit of merits, accompanied by a demand in writing that the place of trial be changed to the proper county, filed with the demurrer or answer, it is the duty of the court to make the order for change as demanded, regardless of whether or not a notice in writing of the time when the application will be presented has been served upon plaintiff. The right to such change of the place of trial is not limited to cases in which notice in writing of the time when the matter will be presented for hearing is served upon opposing counsel. Under the provision of section 1010, Code of Civil Procedure, the action of the' court upon the demand is an order, and the application made upon the demand is designated a motion, but it is not a motion as to the making of which notice in writing is required to be given to plaintiff, within the meaning of section 1005, Code of Civil Procedure. Like a demurrer filed, it goes upon the calendar to be called for hearing in the regular order of business.

James, J., concurred.

A petition to have…