avers as a fact, that it cannot have a fair and impartial trial of its said action before a jury in the said county."

Attorney Copren, in his affidavit, avers that he is now and has been the attorney for the defendants and is familiar with all the facts in the case. Denies that by reason of the alleged facts in the affidavit of Attorney Dunn, or by reason of any fact, the plaintiff cannot have a fair and impartial trial before a jury in Sierra County. Alleges that on the previous trial of the action in September, 1915, a jury was impaneled and the cause presented before the said jury; that at the conclusion of the trial the court instructed the jury to return a verdict for plaintiff, "which the said jury did, and judgment was accordingly entered thereon in favor of plaintiff"; that on appeal to the district court of appeal, the judgment was reversed; "that since the reversal of said judgment in favor of plaintiff, no motion has been made to set the aboveentitled case for trial, and, as yet, no jury has been demanded; . . . that at the previous trial there was no difficulty had in impaneling a jury; that there were but thirteen jurors examined, and each and every one of the said jurors qualified and was accepted by plaintiff; that one juror was excused by reason of the fact that his hearing was defective;

. . that plaintiff's rights were in every way protected at said former trial, and no subsequent fact has arisen upon. which plaintiff can base its contention that a fair and impartial trial of said action cannot be had by a jury in Sierra County, or that there would be any difficulty in impaneling an unbiased jury in said action in Sierra County, and no such fact is alleged, or attempted to be alleged, in plaintiff's said affidavit on motion for change of venue. Denies that any acquaintanceship of defendants, or either of them, in Sierra County, would affect the trial of said action, or prevent plaintiff from having a fair and impartial trial of said action before a jury in said Sierra County." Alleges that all the facts in the case are within the knowledge of affiant, and that he believes and has so advised the defendants that they have and each of them has a good and substantial and valid defense to the action.

The defendant, Wm. J. Copren, in his affidavit denies that the acquaintanceship of his codefendant, C. A. Copren, "extends throughout the course or length of said Sierra County," and alleges that the the said C. A. Copren "is unacquainted

in said county, except in the Sierra Valley and in and about the town of Sierra City, in said county." Admits that affiant for a number of years occupied the position of county assessor of said county, "but denies that he is of wide or consequential influence therein, and in this connection he states that neither he nor the said defendant, C. A. Copren, have ever used, attempted or intended to use, nor do they now intend to use, the influence of said defendants, or either of them, or of any other person, either social, political, official or otherwise, to prevent the plaintiff from having a fair or impartial trial of the issues herein before a jury, or otherwise, or at all." Admits that the county of Sierra is sparsely settled and that his acquaintanceship extends throughout its course and length, "but he states that he is not acquainted with all of the persons subject to jury duty in said county, and that quite a large percentage of such persons are unknown to him." Affiant then states at some length the facts relating to the topography of the county and the various settlements of the people therein, and shows that by reason of mountain barriers and the location of the valleys of the county, these settlements of inhabitants are so separated by mountain barriers "as to have but little communication, social or otherwise" with each other. That in various portions of the county the inhabitants are engaged exclusively in mining and that in other portions the industries are grazing, agricultural, and lumbering, "and that each of said sections is almost entirely independent of the others in their business relations, and to the extent that the inhabitants of each section have almost no business relations with the inhabitants of the other sections." It is further averred in the affidavit "that the fact that the jury, on a previous trial of this action, temporarily refused to return a verdict for the plaintiff does not establish that a fair and impartial trial cannot be had before a jury selected from the body of the county, and that such fact can only be established after an attempt has been made to impanel a jury and it is then demonstrated that a fair and impartial trial cannot be so had." Denies that plaintiff, by reason of the facts set forth in the affidavit of merits made by Attorney Dunn, or by any fact, cannot have a fair or impartial trial of the action before a jury in said county, but, on the contrary, that there is no reason why plaintiff cannot have a fair and impartial trial therein.

Some reference is made in respondent's brief to what occurred at the former trial when the jury was instructed to bring in a verdict for the plaintiff, and some reliance is placed by respondent upon that episode as tending to show that the plaintiff cannot have a fair and impartial trial in Sierra County. This matter is not made a part of the record in this appeal and does not properly form any part of "the papers and files in the case," for it appears only in the transcript on appeal from the judgment rendered in the first trial. The certificate of the judge is that the foregoing record is a full, true, and correct transcript of all papers and files used, and of all proceedings had and conducted, at the hearing and in the determination of the motion of the plaintiff for a change of the place of trial of the above-entitled cause." It may be doubted whether what occurred at that time can properly be considered on this appeal. Lest, however, we may do respondents an injustice, we will quote what purports to have occurred at that time, as shown by the respondent's brief, to which is added, also, a paragraph appearing in appellants' reply brief as part of what then occurred. This matter, as shown by respondent's brief, is as follows:

"The Court: Mr. Dunn, you will prepare the verdict in accordance with the ruling of the court.

"(The Court instructed the jury and they retired to the jury-room. Jury returned.)

"The Court: The clerk may call the names of the jurors. "(Jurors all present.)

"The Court: Gentlemen of the jury, have you agreed upon a verdict in this case?

"Foreman: We can't agree to this; we can't come to this verdict.

"The Court: Do any of the jurors misunderstand the instructions of the court that you are to find in favor of the plaintiff in the sum of $918, there being no issue in the case for your determination? The court has determined that for

you.

"Foreman: I think it is understood that we are to follow your instructions, whatever they are, but we don't like to subject ourselves to that will.

"The Court: As the court instructed the jury, there is no issue before you. Under the rulings of the court, the testi

mony in behalf of the defendants' answer was incompetent and consequently the court instructed you accordingly.

"Foreman: They don't like to be parties to forcing the payment of the $198 ($918).

"The Court: That is a matter that they have nothing to do with. Perhaps I should have stated to the jury that threefourths of you are a sufficient number to agree upon a verdict. In a civil case nine are a sufficient number to agree on the verdict.

"Foreman: There is no other verdict that we can agree on, is there? Do we have to agree to this verdict that is handed to us?

"The Court: Unless you wish to violate your oaths as jurors.'

To the foregoing is added, as shown by appellants' reply brief, the following:

"Foreman: The plaintiffs have put in their evidence and in that contract it is stated that they sold a thirty horse-power engine. Our judgment as citizens leads us to believe that their signatures over that agreement to sell a thirty horsepower engine should be binding, and that they should sell a thirty horse-power engine.

"The Court: That is a matter that under the instructions of the court, you have nothing to do with. I think perhaps you had better retire again to the jury-room. You should have no trouble in determining whether you are going to comply with the instructions of the court or not."

The jury returned a verdict as directed by the court. The foregoing presents all the facts which the trial court had before it in ruling upon the motion, including what occurred at the rendering of the verdict, which is not a part of the record and was not before the court when the motion was heard and decided.

Under section 395 of the Code of Civil Procedure, defendants had a right to have the case tried in the county of their residence, but this right is subject to the right given either party by section 397 of the Code of Civil Procedure, to have the place of trial changed "when there is reason to believe that an impartial trial cannot be had" in the county where the action is pending.

Beyond dispute, the burden was upon plaintiff to establish the fact that a fair and impartial trial could not be had by

a jury in Sierra County, and to determine that fact, only the facts set forth in thé affidavits and such other facts as were before the court and have been made part of the record can now be considered. (People v. Yoakum, 53 Cal. 566; People v. Kromphold, 172 Cal. 512, [157 Pac. 599].) It was stated in Stockton Combined Harvester etc. Works v. Houser, 103 Cal. 377, [37 Pac. 179]: "Applications like this are addressed to the sound legal discretion of the trial court, and its action cannot be disturbed on appeal unless it clearly appears that there was an abuse of that discretion"; citing Hanchett v. Finch, 47 Cal. 192; Avila v. Meherin, 68 Cal. 478, [9 Pac. 428]; Clanton v. Ruffner, 78 Cal. 268, [20 Pac. 676]; People v. Vincent, 95 Cal. 427, [30 Pac. 581].

In People v. Vincent, the court said: "It is true that the discretion of a trial court to grant or refuse a change of venue is not an arbitrary discretion-a mere naked, irresponsible power; but when there has been fair room for the play of such discretion, and its exercise has not gone beyond legitimate and reasonable limits, it cannot be rightfully interfered with by the appellate court." The right of appeal given to a party aggrieved by the order granting or refusing a change of venue presupposes that the reviewing court may determine for itself from the record presented whether the trial court "has gone beyond legitimate and reasonable limits" in making the order in question.

In support of the order, counsel for respondent in part relies with apparent confidence upon certain presumptions which they claim the court had the right to and did indulge in when considering the application. We quote from respondent's brief:

"Courts, it has been said, are presumed to know the things which people generally know, and we submit that not only people generally but every practicing lawyer and court in the land knows as an indisputable fact, that when controverted questions of fact are submitted to trial juries in communities such as this, between a foreigner and a favorably known local citizen, that the citizen has more than an 'even break'; he has all the best of it. That every reasonable, possible intendment and conclusion that can be drawn in his favor is drawn for him against his foreign antagonist. Lawyers know this, people know it generally, and, of course, courts know it. If this is true of a foreign individual, how