Plaintiff filed this action against defendants, alleging that said defendants, by reason of their negligent and careless operation of a truck, had damaged a bridge maintained by plaintiff as a part of its public road system. Defendants Phillips and Boswell were served with summons in the county of Nevada and both answered. They denied the allegations of the complaint and alleged contributory negligence on the part of plaintiff. Said defendants then demanded a jury trial and plaintiff filed a memorandum to set the cause for trial. July 16, 1951, was set as the trial date, but prior thereto defendants noticed a motion for a
After argument the motion for a change of venue was denied by the court, whereupon defendants appealed from said order.
Nowhere in the record does it appear that either of the defendants was not a resident of Nevada County. It is obvious that in the trial court and also in the opening brief of appellants their contention was that solely by reason of the fact that the county was a party to the action it was mandatory upon the trial court to transfer it to another county.
"An action or proceeding against a county, or city and county, may be tried in such county, or city and county, unless such action or proceeding is brought by a county, or city and county, in which case it may be tried in any county, or city and county, not a party thereto.
"Whenever an action or proceeding is brought by a county, city and county, or city, against a resident of another county, city and county, or city, or a corporation doing business in the latter, the action or proceeding must be, on motion of either party, transferred for trial to a county, or city and county, other than the plaintiff, if the plaintiff is a county, or city and county, and other than that in which the plaintiff is situated, if the plaintiff is a city, and other than that in which the defendant resides, or is doing business, or is situated." (Italics added.)
We construe the foregoing section as providing that an action such as this, brought by a county against defendants who, for aught that appears, are residents of the same county, is properly triable in that county, and that it is only when the defendants or one of them is a resident of another county that the court is obligated to change the place of trial, at least as to such defendant, and that the obligation then is to transfer it, not to a county which may be selected by a nonresident defendant, but to a county, selected by the court, in which none of the defendants is a resident. As heretofore
The order appealed from is affirmed.
Van Dyke, J., and Schottky, J. pro tem., concurred.