Sourbis

This is an appeal from an order granting the motion for change of the place of trial. The action was brought in San Joaquin County and there were three defendants. Two of these, F. F. Rhoads and Robert L. Dallas, appeared in the action and filed a demurrer and demanded that the action be transferred to Stanislaus County for trial. In support of their demand they filed an affidavit of merits containing an allegation that each was a resident of said county of Stanislaus, and that the other defendant, S. Leon, was not at the time of the commencement of the action or at any time since a resident of said county of San Joaquin. They also based the motion for the change of venue, as provided in section 395 of the Code of Civil Procedure, upon the ground, “That the said S. Leon, was impliedly joined as a defendant in said action and was made a defendant solely for the purpose of having the action tried where he resides, and that the place of residence of said S. Leon must not and should not be considered in determining the proper county for the trial of the action. ’ ’

In considering the affidavits used upon the said motion this court is bound by the same rule that controls where oral…