ANDERSON v. HEACOCK (1956)

District Court of Appeal, Third District, California.

J. B. ANDERSON, Plaintiff and Respondent, v. Sherman L. HEACOCK and Amy J. Heacock, Defendants and Appellants.

Civ. 8985.

Decided: December 17, 1956

Frank L. Stearns, Azusa, for appellants. Samuel B. Stewart and M. E. Cardoza, San Francisco, for respondent.

This is an appeal from an order denying a motion for a change of venue to the county of appellants' residence.

A copy of the promissory note upon which this action was brought was attached to and made a part of the complaint. The affidavit in support of the motion does not deny the truth of the recitals in the note that it was payable in Portola in Plumas County, where the action was begun. Consequently, action, upon the note was properly commenced in the County of Plumas. Section 395 of the Code of Civil Procedure provides, in part:

‘* * * When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, * * *.’

The respondent could, and did, elect to bring the action in the county wherein the contractual obligation was incurred and was to be discharged.

The order appealed from is affirmed.

VAN DYKE, Presiding Justice.

PEEK and SCHOTTKY, JJ., concur.

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