Rogers v. Rihn

California Court of Appeal Apr 8, 1955 No. Civ. 8581Published

Before: Schottky

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Holding. The court held that an action seeking to impress a trust on real and personal property, accounting, and money damages against multiple defendants is not governed by Probate Code section 1555, and venue is properly transferred to the county of the defendants' residence or where the real property is situated.

Issues

Whether an action against a deceased guardian's administrator and other individuals for fraud, accounting, and trust imposition must be tried in the county of the guardianship proceeding under Probate Code section 1555.
Whether the trial court properly granted a motion for change of venue to the county where the defendants reside and the real property is located.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the administrator of the estate of W. E. Whitehead might be required under said section 1555 to file an accounting in the guardianship proceeding in Amador County does not compel or justify the conclusion that the action”

“Where real and personal actions are joined in the same complaint the case must be tried in the county in which defendant resides if he so demands.”

“we are satisfied that the trial court correctly determined that respondents were entitled to have the action transferred to Contra Costa County.”

SCHOTTKY, J.

This is an appeal from an order granting a motion of certain defendants for change of place of trial from Amador County to Contra Costa County. The motion was made upon the grounds (1) that they are residents of Contra Costa County; (2) that the cause of action concerns real property which is situate in Contra Costa County; (3) that defendant Rihn'is administrator of the estate of W. E. Whitehead, deceased, which estate is being probated in Contra Costa County; and

(4)

that none of the defendants resides in Amador County. Plaintiff opposed the motion for change of place of trial from Amador County, contending that under section 1555 of the Probate Code, Amador County was the proper place for trial.

The amended complaint alleged in substance that Jesse M. McLaughlin, the father of the plaintiff, died in Oakland, California, in 1896 and that thereafter his will which was probated in Alameda County, California, devised a portion of his estate to the plaintiff; that in 1897, W. E. Whitehead was appointed guardian of the person and estate of the plaintiff, who was then a minor, in a proceeding numbered 640 in Amador County, California; that following his appointment as such guardian, Whitehead received funds from the estate of plaintiff’s father which properly belonged to plaintiff, but that Whitehead converted these funds to his own use and never made an accounting of property received by him as such guardian. Said complaint alleged further that in 1929 the guardian, who had bought certain real property in Contra Costa County with these funds, conveyed this property to his daughter, Hazel L. Rihn, and that Hazel L. Rihn and Idele Rickard, in 1929, came into possession of some of these funds and divided the same between them; that the Contra Costa County property is now held by Hazel L. Rihn and J. L. Rihn, but that they hold this property in trust for the plaintiff; that with this property Hazel L. Rihn and J. L. Rihn have purchased additional real property in Contra

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Costa County, and, in addition, have purchased shares of Pacific Gas and Electric Company, Transamerica and Bank of America, and also hold cash in bank, all of which it is alleged they hold in trust for the plaintiff.

Rogers v. Rihn

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SCHOTTKY, J.

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