I dissent. Whether Placer County has a right to have this lawsuit tried at Auburn rather than 37 miles away in Sacramento is about as simple a question as may confront a court. That my two colleagues disagree with the trial judge and I with my colleagues is a symptom of the overly complex, murky and time-worn condition of the venue provisions of the Code of Civil Procedure. (See Van Alstyne, Venue of Mixed Actions in California, 44 Cal.L.Rev. 685.) The first three of these, sections 392, 393 and 394, deal with certain actions which are considered “local” rather than transitory. Section 392 deals with actions affecting realty, section 393 with actions for statutory penalties and suits against public officials, and section 394 with actions against counties and cities. The last of these, section 394, states in mandatory terms that negligence actions against a county '‘ shall ’ ’ be tried in that county.*
The next provision, section 395, opens with this declaration: “In all other cases, except as in this section otherwise provided, and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action.” Thus section 395 imparts a transitory character to a large residual class of lawsuits, but only when these suits fall within the category of “other eases.” The “other cases” to which section 395 refers can only be those which are not governed by the three preceding sections. The opening phrase of section 395 is a subordinating declaration, which renounces any dominance over the local actions described in sections 392, 393 and 394.
As section 394 read up to 1929, a county sued by a private plaintiff in a “foreign” county had a right to change of venue to a county other than that of the plaintiff’s residence. A 1929 amendment inserted the proviso governing negligence *255actions, giving the county a right to move the place of trial to its own county seat rather than that of a neutral county. (Cal. Stats. 1929, ch. 112.) The majority decision here would prevent Placer County from moving the lawsuit in either direction. Section 394 expresses a legislative policy protecting counties and cities, as instruments of government, from forced subjection to negligence trials in other parts of the state. Notwithstanding its mandatory terms and despite the abnegative phraseology of section 395, the majority opinion reaches a result contrary to that policy. If the private parties in this action were vacationing motorists from the southern part of this state, the majority opinion would force Placer County to defend itself in some southern county dictated by the tactical choices of the private litigants. Thus the interests of the private litigant dominate those of the governmental litigant, a result repugnant to section 394.
Because the county is joined as codefendant with a private litigant, the present action is characterized as neither local nor transitory, but mixed; hence within the rule of Smith v. Smith, 88 Cal. 572 [26 P. 356], It is true of the Smith case that the defendant’s right to have the action tried in the county of his residence (Code Civ. Proc., § 395) was permitted to control venue, notwithstanding the action was partly local under section 392. Thus, to the extent that Smith gives section 395 dominance over 392, it supports my colleagues, who give it dominance over section 394. Nevertheless, the central feature of the Smith case is absent here. The pivotal fact in Smith v. Smith was that there was a single defendant who could not be deprived of his right to have a personal action against him tried in the county of his own residence. (88 Cal. at pp. 575-576.) Here, in contrast, Miller, the private defendant, is insisting on no such right. Although the lower court made its order changing venue to Placer County on October 14, 1963, Miller came into the suit nine days later on October 23d and filed his answer without manifesting any objection to or displeasure with the condition of venue. Such silence on Miller’s part betokens neutrality, a willingness to defend himself either in Auburn or Sacramento. Miller has not appeared in the present proceeding. If he has a right to have the action retained in Sacramento County where he resides, he has effectively waived it.
The Smith case has represented the prevailing rule ever since 1891, and we of course are bound by it. It has no application, however, in a case falling within the mandatory *256terms of the proviso to section 394 which, ever since its 1929 enactment, has governed negligence actions against counties for accidents occurring within their boundaries.
In a number of decisions, chief among them Monogram Co. v. Kingsley, 38 Cal.2d 28 [237 P.2d 265], the “right” which receives judicial solicitude is that of the plaintiff rather than the defendant. The plaintiff, in other words, has a right to select and retain a transitory lawsuit in a county where one of several defendants resides; this right may not be defeated by consent or waiver by one of several codefendants. (38 Cal.2d at p. 34.) Monogram, however, was a strictly transitory action, not a mixed local and transitory action as the present. That the Monogram ease is not determinative of an action governed by the specific provisions of sections 392, 393 and 394 is shown by the following dictum appearing in 38 Cal.2d at page 29: “The propriety of the court’s ruling stems from the general statutory provision that in the absence of specific exceptional cases not here involved (Code Civ. Proc., §§ 392, 393, 394), the ‘county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. ’ (Code Civ. Proc., § 395.)”
The matter is entirely one of statutory construction. I cannot conceive that Placer County’s “right” to have the lawsuit tried at home (Code Civ. Proc., § 394) is subordinate to plaintiffs’ “right” to have the lawsuit tried at the residence of defendant Miller (Code Civ. Proc., § 395), when Miller manifests not the slightest concern. Such a right on the plaintiffs’ part can exist only “In all other cases ... ,” that is, in eases other than those specified in sections 392, 393, and 394. The Monogram case was of such a variety, but this is not. Perhaps the parties would prefer to get to trial rather than litigate over a 37-mile trip to court. As I interpret the venue statutes, however, Placer County is entitled to move the trial to its own county seat. I would deny the writ.
Tke fact that the comity may waive benefit of the provision (Newman v. County of Sonoma, 56 Cal.2d 625 [15 Cal.Rptr. 915, 364 P.2d 850]), does not qualify its mandatory character when, as here, the county duly invokes it.