Hart

This is an appeal by defendant from an order of the superior court refusing to change the place of trial of the action from the superior court of Alameda County to that of Santa Cruz County.

The action is one for the recovery of money. It was commenced in Alameda County on February 28, 1919, and on March 11th defendant, who was a resident of Santa Cruz County, was personally served in the city and county of San Francisco. On March 26,1919, defendant’s attorneys, whose offices were in San Francisco, sent by mail to the county clerk of Alameda County, having first served the same, a demurrer to the complaint, a demand in writing that the trial he had in the proper county, and an affidavit of merits, etc., together with a notice of motion to be made April 4, 1919, for change of place of trial. These papers were accompanied by a check for three dollars, which was sufficient in amount to entitle them to be filed, but did not include a calendar fee of two dollars. The papers were received by the clerk on March 27, 1919, and he filed the demurrer, but failed to file the other papers because of the failure of the defendant to forward the claimed fee of two dollars for placing the motion…