Urton

Judgment was given for plaintiff. Defendant appeals from the judgment; also from an order refusing a change of venue; also from an order refusing to set aside a default and vacate the judgment, because taken against him through surprise, excusable neglect, etc.

The motion for change of venue was on the ground that defendant resided in a county other than the one in which the action was commenced; and perhaps the denial of the motion may be sustained on the very technical ground that the notice and demand state that “defendant is a resident of ” and “ resides in ” the other county, instead of stating, in the language of the code, that he so resided “at the commencement of the action.” *39 It is possible, also, that on the record before us the ruling of the court denying the motion to open, the default cannot be reached, although that denial seems to have been somewhat harsh, because while the defendant resided in Amador County, and his attorneys in Sacramento (the cause being pending in Fresno), the motion for change of venue and a demurrer to the complaint were denied and overruled on September 20th, in the absence of defendant and his attorneys; no leave to answer was given;…