Smith v. Smith

This is an appeal from an order denying defendant’s motion to change the venue from Tuolumne county, where the action was commenced, to the county of Merced, where the defendant resided at the time the action was commenced, to wit, July 20, 1892. A former action by the same plaintiffs against the same defendant for the same and additional relief, and founded on the same and an additional cause of action, was commenced in Tuolumne county on July 20, 1891, in which defendant’s motion to change the venue of that action to the county of Merced was denied, and upon appeal from the order denying the motion this court reversed the order, and directed the court below to grant the change (Smith v. Smith, 88 Cal. 572 , 26 Pac. 356 ); but before the change of venue was granted by the lower court the plaintiffs dismissed the action, and thereafter commenced the action in which was made the order from which the present appeal was taken.

It is contended by appellant that substantially the same grounds for a change of venue appear to exist in this ease as in the former, and that upon the authority of the decision of this court in the former case the order denying a change of venue in this case…