Pittman

The appeal is from an order granting the motion of the defendants other than the Southern Pacific Company for a change of place of trial" from the county of Sacramento, in which the action was brought, to the county of Tuba, the residence of two of said defendants.

Appellant contends that the order was erroneous for the following reasons: “1. The defendant, Southern Pacific Company, had appeared in the case, filed a demurrer after having been previously served with summons and complaint, and did not join in the motion to change place of trial. Hence the motion should not have been granted; 2. The moving defendants waived their motion to change place of trial by filing an amended demurrer before presenting their motion; 3. The moving papers were insufficient; 4. Sacramento county was the proper county in so far as the defendant, Southern Pacific Company, was concerned, and hence the other defendants could not remove the cause to the county of Yuba.”

Appellant states the rule too broadly in the declaration “that all necessary defendants who have been served or who have appeared must join in the motion to change place of trial,” although it is so expressed in some of the decisions.…