Nat. Bank v. Superior Court, 83 Cal. 491, [24 Pac. 157]. We are aware, however, of the more recent case of Grocers etc. Union v. Kern etc. Co., 150 Cal. 466, [89 Pac. 120], modifying the earlier decisions and holding that no discrimination can be made in the change of venue between the corporation and the individual. The question, though, is foreign to the discussion, as, treating appellant exactly as a natural person, the case is one contemplated by section 395 of the Code of Civil Procedure that "In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action." The evidence introduced shows that some of the defendants resided in Yuba and none of them in Sacramento. Therefore Yuba is the proper county for the trial and Sacramento is not. There is no sort of contention about the residence except an intimation that the case should be treated as though the corporation were a resident of Sacramento county. But the affidavit of the moving parties is that appellant is a resident of Kentucky, and there is no counter showing even to the effect that it has its principal place of business in said Sacramento county. We must be governed, of course, by the showing made, and therefore it must follow that the respondents who resided in Yuba county had a right to invoke section 396, Code of Civil Procedure, providing that "If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county." The decisions of the supreme court are in harmony with the views herein expressed. In O'Neil v. O'Neil, 54 Cal. 187, it is held that where the action is to determine rights to real estate against several parties, each defendant is entitled as a matter of right to have the action tried in the county in which the real estate is situated, and it is said: "There is nothing in the provisions which require all the defendants to join in claiming such a right. . . . Each defendant may waive it for himself, but the waiver of one cannot be used to prejudice or destroy the right of another."

...

In McKenzie v. Barling, 101 Cal. 460, [36 Pac. 8], a personal action, one of the defendants who was a necessary and

proper party was a resident of Fresno county where the action was brought. He did not join in the motion for a change of venue, and it was correctly held that Fresno was not an improper county for the trial within the rule as accurately stated therein: "Where in a case coming under section 395 of the code any of the defendants reside in the county in which the suit is brought, a motion to change the place of trial to a county in which others of the defendants reside will not be granted unless all of the defendants join in the motion, or unless good reason is shown why they have not so joined."

In Banta v. Wink, 119 Cal. 78, [51 Pac. 17], the action was for the purpose of having it adjudged that the plaintiff is the owner of an undivided interest in all the property, business, proceeds and profits of an alleged copartnership and for an accounting thereof, and it was held that it must be tried in the county in which the defendants or some of them reside at the commencement of the action, and it was stated that "As defendants Wink and Banta did not reside in this state, they could not move for a change of venue, but that fact did not deprive the other defendants of the right to have the case tried in the county in which they, or some of them, resided at the commencement of the action. It is only when none of the defendants reside in the state that the action may be tried in any county which the plaintiff may designate in his complaint."

In Greenleaf v. Jacks, 133 Cal. 506, [65 Pac. 1039], it was not shown that none of the defendants resided in San Luis Obispo county, where the action was brought, and therefore, being a personal action, it was held, in line with the decisions cited, that the motion for change of venue was properly denied.

In the same case, appealed by another party, reported in 133 Cal. 154, it is held that since the cause of action arose In San Luis Obispo county and some of the defendants resided therein, "it was the right of the plaintiff to bring and prosecute the action in that county, and the consent of the resident defendants to change the place of trial to another county could not take away that right."

In Wood, Curtis & Co. v. Herman Min. Co., 139 Cal. 713, 716, [73 Pac. 588], it appeared, as here, that none of the de

fendants resided in Sacramento county, but some of them appeared voluntarily and requested that the trial proceed in said county, but the court said: "The consent of certain defendants not residing in the county where the action is brought could not take away from the defendants who did not reside there the right to have the cause transferred to the county of their residence. To hold otherwise would be a violation of the provisions of section 395."

The foregoing decisions make it perfectly clear that since the evidence showed that none of the defendants resided in Sacramento county and the moving parties resided in Yuba county, and the character of the action-it being personal or transitory-was such as to be properly tried in said Yuba county, the court below had no discretion, upon the showing made, but was compelled to grant the motion. It is unnecessary to consider the point made by respondents that it has been held that a foreign corporation cannot even demand or oppose a change of place of trial (Thomas v. Placerville G. Q. M. Co., 65 Cal. 600, [4 Pac. 641]; Wachter v. Atchison, Topeka & Santa Fe R. R. Co., 10 Cal. App. 70, [101 Pac. 41]), since if we concede that no distinction should be made between foreign and domestic corporations it does not aid appellant in view of what we have already noted as to its nonresidence in Sacramento county.

We do not think it can be held that respondents waived their motion for a change of place of trial by filing their amended demurrer prior to the hearing of the motion.

The statute provides that the affidavit of merits and the demand in writing for the change of the place of trial be filed at the time the defendant answers or demurs (Code Civ. Proc., sec. 396), and section 472, Code of Civil Procedure gives the defendant the right to amend the demurrer of course, and it would be a very harsh rule to hold that by following the statute the defendant waives a privilege conferred by the statute. The amended demurrer relates to the time of the filing of the original, and no more does one than the other manifest an intention to submit to the jurisdiction of the court.

It has been held that the affidavit of merits may be amended even after the time for filing the original affidavit has expired, and that the amendment relates back to the time of

filing said original. (Palmer & Ray v. Barclay, 92 Cal. 199, [28 Pac. 226].) In the Wood, Curtis & Co. case, supra, it was held that the defendants did not waive their privilege to have the place of trial changed by moving to strike out portions of the complaint. It is true that the privilege may be waived impliedly as well as expressly, but in order to do so there must be some act of the moving party tending to show his intent to invoke the jurisdiction of the court of first instance for the trial of questions of fact or of law. The filing of the amended demurrer does not indicate this intention, although it might just as well have been filed after the cause was transferred. The cases cited by appellant involve different facts and, as we view them, are of no assistance here.

The objection to the affidavit of merits is that it avers that the defendants "have fully and fairly stated all the facts of the case in the above-entitled action to their attorney, W. H. Carlin, of the city of Marysville," whereas it should "have stated that Carlin was their counsel in the case." The principal criticism seems to be that it does not appear but that Carlin was their attorney in fact, but upon reference to the provisions of the Code of Civil Procedure, title 5, chapter I, [sections 275-299], it will be found that "attorney, 'counselor" and "attorney at law" are used synonymously, and it is undoubtedly true that in the court of common understanding there would be found no dissent from the opinion that the defendants intended to declare, and did substantially declare, that they had fully and fairly stated all the facts of the case to W. H. Carlin, who was their attorney and counselor in said cause, etc.

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The affidavit seems to be in entire accord with the decisions. (McSherry v. Penn. C. G. M. Co., 97 Cal. 637, [32 Pac. 711]; Wood, Curtis & Co. v. Herman Min. Co., 139 Cal. 713, [73 Pac. 588].)

As suggested by respondents, we are not concerned with the wisdom of the choice of defendants as to their attorney, but in answer to appellant's statement that it should appear that the facts had been stated "to some counsel who is skilled in the law," it may be declared that either the counsel from Marysville or the one from Sacramento will measure up to the requirement.

The fourth proposition of appellant has perhaps been sufficiently covered by the foregoing. At the risk of repetition,

it is, however, submitted that while Sacramento may be regarded as a proper county, as far as appellant is concerned, for the trial of the action, for the reason that, being a foreign corporation, it may be sued in any county of the state, it has no right to demand that it be tried therein. This follows from the consideration that the right to sue appellant in said county is a privilege accorded to plaintiff, and obviously cannot be urged to defeat the right of the other defendants to demand that the action be tried in the county of their residence, which is the only proper county for them as well as for appellant. It must be plain that in any view appellant cannot resist the motion on the ground that Yuba is an improper county for the trial of the action. Even if it were a domestic corporation or a natural person it could not do so under the showing made. There is really no question here of any discrimination between a natural and an artificial person, or between a domestic and a foreign corporation, as in the final analysis the decision of the lower court simply means that in a transitory action certain defendants who reside in Yuba county are entitled to have the cause tried in that county as against a defendant not residing in the state.

We see no reason for disturbing the action of the trial court, and the order is therefore affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 592. First Appellate District.-August 31, 1909.] ROSE B. GILLINGHAM, Respondent, v. EDWARD LAWRENCE, Appellant.

JUDGMENT BY DEFAULT-MOTION TO VACATE-DISCRETION-REVIEW UPON APPEAL.-A motion to vacate a judgment by default for alleged mistake, inadvertence or excusable neglect of the defendant rests largely in the discretion of the trial court; and it is only where it plainly appears that such discretion has been abused that this court will interfere. Its action in denying the motion will be sustained where no such abuse of discretion appears.

was

ID.-DISCRETION NOT ABUSED-GROSS CARELESSNESS SUMMONS UNHEEDED —ATTORNEY NOT EMPLOYED.-Where the defendant guilty of gross carelessness in not heeding the summons which re