I concur in the judgment. Where the county wherein the action is commenced is not the proper county for the trial thereof, and such fact is made to appear by an affidavit of merits, accompanied by a demand in writing that the place of trial be changed to the proper county, filed with the demurrer or answer, it is the duty of the court to make the order for change as demanded, regardless of whether or not a notice in writing of the time when the application will be presented has been served upon plaintiff. The right to such change of the place of trial is not limited to cases in which notice in writing of the time when the matter will be presented for hearing is served upon opposing counsel. Under the provision of section 1010, Code of Civil Procedure, the action of the court upon the demand is an order, *Page 183 and the application made upon the demand is designated a motion, but it is not a motion as to the making of which notice in writing is required to be given to plaintiff, within the meaning of section 1005, Code of Civil Procedure. Like a demurrer filed, it goes upon the calendar to be called for hearing in the regular order of business.
James, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 5, 1911.