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District Court of Appeal, First District, Division 2, California.


Civ. 10303.

Decided: March 05, 1937

Louis Oneal and A. G. Shoup, both of San Jose, and E. J. Foulds, of San Francisco, for appellants. Norman A. Eisner, of San Francisco, for respondent.

In his petition for a rehearing herein counsel for respondent complains of our treatment of section 392 et seq. of the Code of Civil Procedure (as amended by St. 1933, p. 1837 et seq., St. 1935, p. 1947 et seq.) in regard to the question of jurisdiction––a question which we have deemed as not determinative of this proceeding. We referred to the question because it had been argued in the briefs, but, when we said that these sections had been held jurisdictional “in some cases,” we assumed that the implication would follow that there was a division of authority.

Criticism is also made of the expression “when it appears that the action has been commenced in the wrong court a transfer to the ‘proper court’ is mandatory. Section 396b.” A reading of this section enacted in 1933 (St. 1933, p. 1842) will readily disclose the meaning of the statement. It provides that, if an action is commenced in a court having jurisdiction of the subject matter thereof “other than the court designated as the proper court for the trial thereof, under the provisions of this title,” i. e., section 392 et seq., it may be tried in that county unless the defendant demands a transfer to the proper court. Then follows the language which is entirely new to these sections and upon which we held a transfer to be mandatory. This portion of the section reads: “Upon the hearing of such motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the same transferred to the proper court; provided, however, that the court, in an action for divorce or separate maintenance, may, prior to the determination of such motion, consider and determine a motion for counsel fees and costs, and make all necessary and proper orders in connection therewith; provided, further, that in any case, if an answer be filed, the court may consider opposition to the motion, if any, and may retain the action in the county where commenced if it appears that the convenience of witnesses or the ends of justice will thereby be promoted.” (Italics ours.)

There is no uncertainty in this language and no ground for the statement that we held a demand for transfer unnecessary. The section expressly requires a demand, and it also designates but two exceptions to the mandatory requirement for a transfer when such demand is properly made.

Respondent did not bring its case within either of these exceptions and, since it is conceded that proper demand for a transfer was made, we correctly held that a transfer under the facts of this case was mandatory.

The petition for a rehearing is denied.


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