Warner

I think the order appealed from should be affirmed. In my opinion the amendment of 1891 to section 128 of the Civil Code was intended to prescribe a residence of three months in some particular county as a jurisdictional condition to be shown by the plaintiff before he should be entitled to a divorce, just as the previous requisite, which is also retained, of six months’ residence in the state is a jurisdictional condition to entertaining his application for a divorce. The right to a divorce is particularly a matter of statutory creation,, and the legislature has the same right to prescribe the conditions in procedure upon which a suit shall be instituted in its courts as it has to limit the causes for which the divorce may be granted.

This construction of the section is consistent with the provisions of the Code of Civil Procedure for changing the place of trial of the action after it has been brought, and gives full force to the several provisions of both codes.

No objection was made in the court below to the absence of a demand in Avriting for a change of the place of trial, and, as the bill of exceptions states that a “ notice in due form” of the motion therefor was filed by…

I dissent. There was no demand in writing for a change of the place of trial ever filed by the defendants, or either of them; and such demand has more than once been held by this court to be essential to the validity of an order changing the place of trial. (Code Civ. Proc., sec. 396; Estrada v. Orena, 54 Cal. 407 ; Byrne v. Byrne, 57 Cal. 348 .)

*18 Unless these decisions are to be reversed the order appealed from should be reversed.

As to the point discussed in the opinion of the court I concur in the main in the views expressed by Justice Paterson; but, for the reason above stated, I must dissent from the judgment of affirmance.

This is an action for a divorce and a division of the community property. It is alleged that F. R. Warner, who is joined as a defendant with the husband of the plaintiff, received from the husband a fraudulent conveyance of certain real property, situated in San Bernardino county, with the intent to defraud the plaintiff of her community interest therein. The prayer is for a divorce, a cancellation of the conveyance, and a division of the property fraudulently conveyed. The action was brought in the county of San Bernardino, the complaint alleging that the plaintiff had resided in the state for more than one year and in the county of San Bernardino for more than three, months next preceding the commencement of the action.

The court on motion of the defendants changed the place of trial from San Bernardino to Los Angeles county, upon the sole ground that the defendants were residents of the latter county.

Appellant contends that under section 128 of the Civil Code an action for divorce must be brought in the county of the plaintiff's residence, and cannot be removed therefrom except on account of the convenience of witnesses, or where it is made to appear that an impartial trial…