I dissent. When the verified answer was filed ousting the jurisdiction of the justice’s court that court could take no further steps in the case. It was the duty of the justice to immediately certify the case to the superior court, and that court then had “over the action the same jurisdiction as if it had been commenced therein.” (Code Civ. Proc., sec. 838.)
No affidavit could properly have been filed or motion made for a change of the place of trial in the justice’s court. If that court had jurisdiction of the case, it would have been improper, because a change to another county cannot be had from a justice’s court. If the justice had not jurisdiction it would have been idle to file the affidavit there, because that court had no power to act upon it. The defendant made the necessary affidavit as soon as the case reached a court having jurisdiction to act upon it, and before any act was done by him in that court, or any other step taken therein. This was using the utmost expedition in the assertion of his rights that could be reasonably required under the statute. It is well enough to say that the “right to a change of the place of trial is purely statutory, and a party must bring himself clearly within the provisions on the subject,” but it is quite another thing for the courts to so construe a statute as, in certain cases, to deprive a party of the right entirely, and thus in such cases to nullify the statute itself.
If the doctrine declared in the prevailing opinion is to obtain, all a plaintiff will have to do hereafter, in order to prevent a defendant from asserting his right to be tried in the county of his residence, is to bring his *563action in a justice’s court which has no jurisdiction, thereby compelling the defendant to be tried before the justice, or file such an answer as will cause the transfer of the case to the superior court of that county, in either of which events, if such a construction is to prevail, he is entirely cut off from his right to a change to the proper county. In my judgment, a plain statutory right should not be denied a party even in a “comparatively trivial case” by any such strict construction of the provisions of the statute. The law is the same in all cases, and the courts cannot deny the right given by it because the court may regard the case in hand as comparatively trivial. I think the change should have been granted, and that the order denying it should be reversed.