Williams v. Keller. unless the defendant before the time for answering expire demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the Court, as is provided in this section. The Court may, on motion, change the place of trial in the following cases: First. When the county designated in the complaint is not the proper county." It is also further provided, thus: Third. "When the convenience of witnesses and the ends of justice would be promoted by the change." (Statutes of 1869, 199, * Secs. 20, 21.9 * * * * As a general rule, change of place of trial is eminently within the discretion of the Court to which the motion is addressed; but when the motion is made under the peculiar language of the statute cited, on the ground of residence, there is no room for the exercise of discretion. The statute is peremptory in that regard, and the party making such motion is entitled to have the same granted, that he may plead or take such other action as he may be advised; and to that end, it is his privilege to have the ruling and decision of the judge of the place of his residence, upon any question arising subsequently to the necessary order, upon his demand and motion. Why the Legislature should have made this special provision is perhaps not so clear; and upon a somewhat similar statute, and in a case resembling the present, it was said in New York that it would seem to be an idle ceremony to change the place of trial of a case which would probably have to be immediately returned; but of that neither this Court nor the District or other Court, where the original motion is made, can judge. When, as in the present action, it is clear that the mover comes within the language of the statute, he is entitled to his order for change, and any subsequent proceeding should be had in the Court to which the cause is transferred. To the motion and affidavit of appellant, the counter motion (if counter motion it be) and affidavits were no defense. They raised an irrelevant issue, and one which the First District Court had no right to consider. The appellant had no need to answer such affidavits, but having done so, he should not be made to suffer for an Williams v. Keller. act of mere surplusage; one which he evidently-and so the District Court, judging from its order in the premises-thought a proper part of his original motion. There can properly be no such practice as an affirmative motion to retain a cause in a certain county for trial; this is matter of defense, and though from some portion of the language of respondents' notice, it would follow that they proposed making an affirmative motion, yet to call it so could not change its real nature; and so the District Court in its order only rules upon the motion of appellant, treating all the affidavits as pertaining to that. Thus much has been said, because it is claimed that appellant, by filing affidavits and making contest upon the question of the convenience of witnesses, thereby waived his right to object to the decision of the District Court thereon, and consequently is bound thereby. The legal presumption of a waiver of any right by a litigant will not be drawn except in a clear case; and especially so when to follow such a presumption would be to deprive a party of his day in Court. Here the appellant is found all the time insisting on his original demand, and though doing more than he needed, by filing affidavits as to the convenience of witnesses, yet this was clearly upon the hypothesis that such action was of some avail as to the primary question. To hold that he at any time waived his first demand, would be to force an illegitimate inference from the circumstances. When appellant's original motion was made, the District Court of the First District was by force thereof ousted of all jurisdiction over the person of appellant and the subject matter of the suit, except to decide upon the one proposition of the residence of appellant at the time of the commencement of the action. That found in favor of appellant, the order for change of place of trial necessarily and conclusively followed. In considering the question of the convenience of witnesses, the District Court allowed an irrelevant issue to usurp the place of the legal and proper one. In deciding the motion of appellant upon any other consideration than that by him originally presented, the Court erred. The default and judgment which followed the ruling on appel Crow v. Van Sickle. lant's motion were taken without authority and beyond the jurisdiction of the Court, and must consequently be set aside. It is so ordered, and the cause is remanded, with directions to the First District Court to vacate all orders therein, and to make an order changing the place of trial of the case to White Pine County. MATTHEW CROW, APPELLANT, v. HENRY VAN SICKLE et als., RESPONDENTS. COMPLAINT BY HUSBAND ON NOTE GIVEN TO WIFE. Where a complaint by a husband on a note and mortgage given to his wife, alleged that he was the owner and holder of the note and mortgage, and in another part that the note and mortgage were the common property of himself and wife: Held, that though there was an apparent, there was no real contradiction; that the allegation of common property was nothing more than an explanation of the character of his ownership, and that a demurrer for ambiguity would not lie. CHOSES IN ACTION BELONGING TO HUSBAND AND WIFE. Under the provision of the statute relating to husband and wife, (Stats. 1864–5, 240) the husband, for the purpose of bringing suits upon choses in action which are common property, and so far as the disposition of such property is concerned, is the sole owner, and he alone is the proper party to bring actions upon them. WIFE NOT A PARTY TO ACTION TO RECOVER COMMON PROPERTY. In a suit on a note given in the name of a wife, though in fact the common property of herself and husband, she has no such interest as to make her a necessary or proper party. PLEADING-HUSBAND'S OWNERSHIP OF COMMON PROPERTY. In a complaint by a husband to recover a chose in action given in the name of his wife, but belonging to the community, it is sufficient for him, to show his right of action, to allege either that he is the owner or that it is common property, and even both allegations in the same complaint will not render it demurrable. PLEADING CHARACTER OF CORPORATIONS DEFENDANT. In an action on a note and mortgage, where a corporation was made a party defendant as having some interest: Held, that it was not necessary to allege whether it was a foreign or domestic corporation, nor for what purpose it was incorporated. APPEAL from the District Court of the Second Judicial District, Douglas County. This was an action on a note for $9,650, and interest at the rate of two per cent. per month, made by defendant Van Sickle to Mary Crow, October 26th, 1868, and a mortgage of even date to secure Crow v. Van Sickle. the same on the "Kinney Ranch," the "Bob Lyons Ranch" and "Van Sickle's Hotel" in Douglas County. Wells, Fargo & Co., H. F. Dangberg and J. J. Jones were made parties defendant, as having some interest in the property mortgaged subsequent to the lien of the mortgage. R. S. Mesick, for Appellant. I. The note and mortgage being made to the wife of the plaintiff during coverture are, by operation of law, payable to the husband, and either his property or the common property of both husband and wife, and so subject to the exclusive control of the husband. (Story on Promissory Notes, Secs. 87, 124; Com. v. Manley, 12 Pick. 173; Tryon v. Sutton, 13 Cal. 493; Stats. 1864–5, 239; Smith v. Smith, 12 Cal. 216; Meyer v. Kinzer, 12 Cal. 247; Pixley v. Huggins, 15 Cal. 127; Benton v. Leis, 21 Cal. 87; Adams v. Knowlton, 22 Cal. 283; Riley v. Pehl, 23 Cal. 70; McDonald v. Badger, 23 Cal. 393; Ramsdell v. Fuller, 28 Cal. 37.) II. Actions concerning common property are purposely brought in the name of the husband alone, and the wife ought not to be joined with him as a party. (Mott v. Smith, 16 Cal. 557; Tissot v. Throckmorton, 6 Cal. 471.) III. We are at a loss to understand how it can be contended with any degree of sincerity that any point in the demurrer can be be sustained. The matter seems to us too plain for argument. Clarke & Wells, for Respondents. I. The complaint alleges the note and mortgage to be the property of the plaintiff; and then alleges them to be the property of plaintiff and wife. These averments are contradictory. Can plaintiff be allowed to try to prove one, and on failure prove the other? The allegations and proof must correspond. (24 Cal. 458; 15 Cal. 410.) II. Wells, Fargo & Co., a corporation, are made defendants, because necessary parties to the action; but plaintiff does not allege when, where, or for what purpose incorporated, or whether a domes Crow v. Van Sickle. tic or foreign corporation. The complaint ought to allege these facts; and if a foreign corporation, the fact of such compliance with our laws as will enable it to do business here. (14 Cal. 457; 10 Cal. 22; 34 Cal. 48.) By the Court, LEWIS, C. J.: Suit to foreclose a mortgage, the complaint alleging that the note to secure which the mortgage was given was executed to Mary Crow, who it is charged was at the time of its execution and delivery, and ever since has been, the wife of plaintiff, and that the consideration upon which the note and mortgage were executed was money received by the defendant Van Sickle from the plaintiff. It is also alleged that the plaintiff is the owner and holder of the note and mortgage, and that they now are and have ever been the common property of himself and his said wife." The defendant Van Sickle demurred to this pleading, assigning several grounds, only two of which, however, are urged in this Court, namely: First. It is ambiguous and contradictory in this: it alleges, first, that the plaintiff is the owner and holder of the note and mortgage, and again that they are the common property of himself and wife and second, that, as it alleges Wells, Fargo & Co., who are made defendants, to be a corporation, it should show whether a domestic or foreign corporation, and for what purpose incorporated. At first blush the allegation respecting the ownership would seem to be a flat contradiction. When, however, taken in connection with the peculiar statute of this State respecting the common property of husband and wife, it will be observed no such contradiction exists. Section two of that law declares that "all property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property." And section nine of the same act provides that "the husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate." (Stats. of 1864-5, 240.) The complaint was evidently drawn with this statute in view. By virtue of it, the husband is—for the purpose of bringing suits upon choses in action |