Pennie v. Visher

Opinion — Sharpstein

Sharpstein, J.

D. M. Vance, one of the defendants in the above-entitled action, appeals from an order denying his motion to set aside the default entered against him, and from the judgment entered in said action. Appellant demurred to the plaintiff's complaint, and moved for a change of the place of trial upon an affidavit stating the grounds upon which his motion was based. The motion was overruled, and that ruling is complained of as being erroneous. We think the grounds specified for a change of the place of trial insufficient; and were they not, there does not appear to have been a demand for the change in writing, such as *326is required by section 396 of the Code of Civil Procedure. (Estrada v. Oreña, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348.) The demurrer was overruled before the motion for a change of the place of trial was. Both were properly overruled, and the order in which they were overruled could not in any way affect the substantial rights of the parties, as it might have done if the motion to change the place of trial had been granted after the demurrer was overruled. As it is, it appears to be nothing more serious than a harmless irregularity which we are bound to disregard.

After appellant’s demurrer was overruled, his default was entered for failure to answer, and he moved to set it aside. The grounds upon which that motion was based were insufficient to entitle the moving party to have the default set aside, and there was no abuse of the discretion of the court in denying it.

Judgment and order affirmed.

McFarland, J., Paterson, J., Garoutte, J., and De Haven, J., concurred."