We dissent. The case is a trifling one as to the amount of money involved, but it involves a principle which it is important should be settled correctly. Under section 395 of the Code of Civil Procedure, it is a matter of absolute right on the part of the defendant that he shall have the case tried in the county where he resides. This section is mandatory in its terms, and so plain as not to be open to construction, either as to its meaning, or as to the intention of its framers. On the other hand, section 396, cited in the leading opinion, is a mere provision of the mode of procedure to secure the right. The right itself being absolutely established by legislative enactment, if no mode of procedure had been provided for its enforcement, it would be the duty of the court to prescribe one. Section 396 has prescribed one for all the ordinary cases arising in the.course of practice; but here happens to come a case, as sometimes occurs in the conduct of human affairs, that the mode of procedure provided, if we follow the literal language of the statute, does not meet, and we have a case of a right without a remedy. In *564such a case it is the duty of the court, if possible, to provide a remedy. Examining the general remedy which has been provided, we find that the controlling idea of the framers of the statute was, that the party seeking to avail himself of the right guaranteed to him by section 395 should make his application therefor upon his first appearance in the court having jurisdiction to act thereon. That was done in this case. The answer was necessarily filed in a court which had no jurisdiction, either to try the case or to transfer it to another county. That court, as in duty bound, transmitted it to a competent court of its own county, and immediately upon the filing of the papers in the court to which it was so transmitted, the application for change of venue was made. It should have been granted.