Garrett
Garrett v. Superior Court of Kings Cty.
Opinion
Lead Opinion
Conley, J.
Utilizing the current means provided by section 400 of the Code of Civil Procedure to test the propriety of the order of the trial court, the defendant in action No. 18187, pending in Kings County, entitled “The Armstrong Rubber Company v. J. Earl Garrett, Jr., doing business as Jaybird Auto Center & Car Wash,” filed a petition for a writ of mandate to require the Kings County Superior Court to grant his application for a transfer of the case to his home county of Orange. (Henson v. Superior Court, 218 Cal.App.2d 327 [ 32 Cal.Rptr. 404 ] ; Cal-Ore Lumber Sales v. Russell, 133 Cal.App.2d 296 [ 284 P.2d 179 ].) The petitioner urges two grounds for this relief saying that:
1) The plaintiff sued in the wrong county (Code Civ. Proe. § 395), and
2) The trial court abused its discretion in not ordering the change of venue for the convenience of witnesses and the furtherance of justice. (Code Civ. Proc. § 397, subd. 3.) In this latter connection, instead of demurring to the complaint, the petitioner filed an answer as his first appearance in the Kings County action, concurrently with the petition for a change of venue, an affidavit of merits, and a supporting declaration of fact. It is…