Simpson

This is an unusually frivolous appeal. The defendant, on motion, procured an order changing the place of trial from the county of San Joaquin to the county of Yuba, on the ground that he resides in the latter county. The appellants appeal from this order. The record is utterly barren of debatable questions. Only two points are made by the appellants.

[1] (1) It is claimed that the affidavit does not show affirmatively that the defendant was not a resident of the county of San Joaquin. But the code does not require this negative showing. Section 395 of the Code of Civil Procedure provides that an action must be tried in the county in which the defendant resides at the commencement of the action. The moving party in his affidavit states: “At the time of the commencement of the action I did reside, and do now reside and continuously for more than three years immediately last past, I have resided in the County of Tuba, etc.” Certain authorities are cited by the appellants; but these authorities are not in point; in fact, they have no application to the case of a sole defendant.

[2] (2) Objection is made that the affidavit of merits does not state that the defendant was advised by…