much more true is it when, as is set forth in this affidavit, the plaintiff is a foreign corporation, which is generally considered nothing more nor less than a natural enemy of every local resident when controversy arises. That the foreign corporation shall not be permitted to win if it is a possible thing to beat it, is always orthodox. No citizen lawyer nor court expects anything else, and the foreign corporation does not look for it.

"We submit that the foregoing statements are recognized facts by everybody, and being so, the trial court, when considering the affidavit filed in this case, started in with that knowledge and had a right, and it was its duty, to consider that knowledge in weighing the affidavit submitted."

We confess to some surprise that this court should be asked to give countenance to such a doctrine.

We are loath to believe that the inhabitants of Sierra County are different in moral and intellectual fibre from those of any other county in the state. We are not willing to believe that they are incapable of fairly and impartially administering justice between a foreign corporation and one of their citizens. Respondent's proposition means that while a foreign corporation must bring such an action as this in the county of the defendants' residence, a presumption arises, which, if invoked, the trial court must treat as a fact, that the corporation cannot have a fair and impartial trial in that county, and if it seeks to change the venue, its application must for that reason be granted, for it would be impossible to overcome this presumption, since the entire inhabitants are inoculated with this hostile virus.

In our opinion, no such presumption can be indulged in support of the order. The fact that plaintiff is a foreign corporation is an inconsequential factor and of no probative value in determining the question. The remaining facts relied upon are: That at the former trial, when instructed by the court to render a verdict for plaintiff, the jury showed reluctance to do so, although after so expressing themselves, they did obey the instruction of the court; that plaintiff is practically unacquainted in Sierra County, while defendants were born and have lived to mature age therein, "and are well and favorably known throughout its entire length"; that the county is sparsely settled "and the acquaintanceship of said defendants extends throughout its course and length";

and that one of the defendants "has for a number of years occupied the position of county assessor of said county, and is of wide and consequential influence therein." Except that plaintiff is unacquainted in said county and that the county is sparsely settled and that one of the defendants has served the county as assessor, these alleged facts are controverted by respondents. The population of Sierra County, as shown by the census of 1910, was 4,098. It appeared that there was no difficulty in obtaining a jury at the first trial, the members as called having been accepted by both parties. Since then the case has not been set for trial and, of course, no attempt made to secure a jury. We do not think it a reasonable conclusion from the facts alleged that a fair and impartial trial cannot be had in Sierra County. It is an unwarranted inference that an impartial jury cannot be called from the citizens of that county capable of impartially trying a case between a foreign corporation and residents therein simply because these persons are widely and favorably known in the county. To disqualify the entire inhabitants of a county to sit as jurors on such grounds would, in our opinion, be an unreasonable exercise of judicial power. This impeachment of its citizens would include logically the judge of the superior court and for like reasons his disqualification to sit in the case might be invoked.

Speaking generally of statutory provisions for change of venue, the supreme court said in Cook v. Pendergast, 61 Cal. 72, 79: "So he [plaintiff] may move on the ground that a fair and impartial trial cannot be had in the county where the action has been commenced or whenever he ascertains the disqualification of the judge. But neither plaintiff nor defendant can move for a change of the place of trial because of the convenience of witnesses, or because a fair trial cannot be had, until the event has occurred which, in the one case, can alone enable the court to decide what facts are material to be proved by the respective parties, or which, in the other case, will assist the court in ascertaining whether such local prejudice exists as may influence the conduct of the jury.

"The fact that an impartial trial cannot be had must be clearly established. So plainly does it appear that a motion on this ground should be made after answer, that the practice of attempting to secure a jury before passing on the motion

has been approved. It has even been held that nothing less than an actual experiment, by way of trial or attempt, to impanel a jury, and a consequential failure, will be sufficient to show that a fair and impartial trial cannot be had." (Citing Messenger v. Holmes, 12 Wend. (N. Y.) 203; Patchin v. Sands, 10 Wend. (N. Y.) 570; 2 Wait's Practice, 620.)

It has been several times held that it is not error to postpone the consideration of an application for a change of venue until an attempt has been made to impanel a jury, where leave is granted to counsel to renew his application if the facts disclosed in the impanelment should further warrant it. (People v. Staples, 149 Cal. 405, 412, [86 Pac. 886], and cases cited.)

While we do not hold that a change of venue on the grounds here stated would under no condition of circumstances be granted until an unsuccessful attempt had been made to impanel jury, no case has come under our observation in which a change of venue was sought or granted where there had not been one trial, or where some effort had not been made to obtain a jury. It is conceivable that a showing might be made of a prejudice against a plaintiff so widespread, intense, and outspoken, through the public press and otherwise, as to warrant a conclusion that the plaintiff would not have a fair trial where the action was pending. But it must be conceded that without making an attempt to secure an impartial jury, it would require something more than a showing that the defendants "are well and favorably known throughout the entire length of the county," and that one of them "is of wide and consequential influence therein" because he had been intrusted with the office of county assessor. As above shown, there was no difficulty in getting a jury at the former trial. That they hesitated at first to render a verdict as directed, it seems to us, furnishes no ground for assuming that an impartial trial cannot be had in that county. Defendants' right to have the case tried at the place of their residence is given them by statute. This right should not be taken from them without the plaintiff clearly shows that its right to a fair and impartial trial cannot be had where the action is pending.

We do not think sufficient showing has been made to justify the order. We think the learned trial judge has, in the

exercise of his discretion, "gone beyond legitimate and rea

sonable limits."

The order is therefore reversed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 2287. First Appellate District.-October 22, 1917.] ARTURO WOLF, Petitioner, v. HARRY I. MULCREVY, County Clerk, etc., Respondent.

ESTATES OF DECEASED PERSONS-FILING AND INDEXING SEPARATE PETITIONS FOR PROBATE COUNTY CLERK-MANDAMUS.-The appellate court will not issue a writ of mandamus to compel the clerk of the superior court to file, number, and index a petition for the probate of the estate of a deceased person separately from a similar petition in the matter of the same estate theretofore filed and pending, as the clerk is not invested with power to determine whether or not the two other petitions are identically the same, but even if he were, the only right which the petitioner has, is to have his petition filed, and if the clerk fails to file it properly, he has his remedy in the superior court.

APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the First Appellate District to direct a county clerk to file, number, and index a petition for probate of will.

The facts are stated in the opinion of the court.

Dozier & Dozier, and Theodore A. Bell, for Petitioner.

Edgar D. Peixotto, Leon Samuels, and J. R. Pringle, for Respondent.

THE COURT.-Application for a writ of mandate directing the respondent to file, number, and index a petition for the probate of the estate of Tobe Funkenstein, deceased, separately from a similar petition in the matter of the same estate theretofore filed and pending in the superior court of the city and county of San Francisco, of which respondent is clerk.

We are of the opinion that the clerk of the court is not invested with power to determine whether or not these two petitions for the probate of the estate of Funkenstein are identically the same, but even if he were, we are strongly impressed with the contention made by the respondent that the only right which the petitioner has is to have his petition filed, and if the clerk fails to file it properly, the petitioner then has his remedy in the superior court by an application there to have his paper filed, numbered, and indexed by the clerk as it ought to be. In short, no injury comes to him because his petition is filed and numbered with a similar pending petition, and the presumption is that the superior court will do what the law demands in the premises. It is conceded that the writ of mandate is issued by this court as a matter of discretion and not as of right, and in the present case there does not appear to be any injury suffered by the petitioner because of the action of the clerk. Moreover we are of the opinion that if the petitioner is entitled to the remedy prayed for, it may be plainly, speedily, and adequately had in the court below upon proper application and showing made there.

For these reasons the writ is denied.

[Civ. No. 2280. First Appellate District.-October 22, 1917.] WM. S. BRUSSTER, JR., et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

WORKMEN'S COMPENSATION ACT-INJURY TO NIGHT WATCHMAN-UNWARRANTED USE OF CIRCULAR SAW.-Under the Workmen's Compensation Act, an award of compensation to a night watchman for an injury sustained while using a circular saw for the purpose of making a board of suitable length to barricade a door must be annulled, for even assuming that it was within the scope of his employment to see that the doors of the premises were properly secured by locking, the resort to the use of the saw was entirely beyond the scope of his employment.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the First Appellate District to annul an award of the Industrial Accident Commission.

85 Cal. App.-6