Ellingwood

This is one of more than twenty proceedings in eminent domain commenced in the superior court of Calaveras County by the plaintiff, situated in San Joaquin County, to condemn lands in Calaveras County for a reservoir site. On motion of the plaintiff the court transferred the proceeding to the adjoining county of Amador for trial. The defendants other than Macnider have appealed from the order of transfer.

There is no dispute as to the facts. At the hearing the defendants moved the court, upon affidavit, to deny plaintiff’s motion and to retain the proceeding for trial “in the superior cdurt of Calaveras County for the convenience of witnesses that will be called herein and to promote the ends of justice.” The facts stated in the affidavit were not denied. The transfer was made pursuant to the provisions of section 394 of the Code of Civil Procedure. That section provides:

“An action or proceeding against a county, or city and county, may be commenced and tried in such county, or city and county, unless such action or proceeding is brought by a county, or city and county, in which case it may be tried in any county, or city and county, not a party thereto. Whenever an action or…