Lundy

The defendant, E. B. Lettunich, appealed from an order denying a motion for change of venue. Upon his death, Stella E. Lettunich, as executrix of his will, was substituted in his place.

The action, which is personal in its nature, having been commenced in the city and county of San Francisco, summons was regularly served on June 16, 1919, in the county of Santa Cruz. The defendant appeared by filing a demurrer on July 16, 1919, service of the demurrer having been admitted by indorsement under date of July 11th. With the demurrer was served and filed an affidavit showing, among other things, that the defendant was a resident of Santa Cruz County. At the same time the statutory demand in writing was served and filed that the trial be had in the proper county. (Code Civ. Proc., sec. 396.) [1] It is contended by the respondent that the affidavit of merits was insufficient. The contention appears to be unfounded, but its consideration is unnecessary. The appellant in his brief asserts that whether or not it was sufficient is immaterial. This is true, because such an affidavit is amendable. (Code Civ. Proc., sec. 473; Palmer etc. v. Barclay, 92 Cal. 201 , [ 28 Pac. 226 ]; Pittman v.…