Averill v. Lincoln

THE COURT.

This is an appeal from a decision of the Superior Court of the State of California, in and for the County of Madera, denying defendants’ motion for a change of venue from that county to the county of Los Angeles, California.

At the oral argument of this appeal it developed that the certificates of the trial judge and clerk to the transcript on appeal were defective. Motion has been made for an of the record so that proper certificates could be attached to the record, and proper certificates by both the trial judge and the clerk have been transmitted to this court for inclusion in the record. Where an application to the record is made, it is the attitude of appellate courts that the same should be granted, where possible, so that the case may be determined on the merits. On the authority of the case of

Frankish

v.

Federal Mortgage Co.,

28 Cal. App. (2d) 499 [82 P. (2d) 962], the motion for extension of the record is granted.

Plaintiff’s complaint filed in the Madera County action alleges that plaintiff owned and controlled a large amount of farm and ranch properties in Madera County, from the operation of which he derived substantial profits; that he also owned a large quantity of farming tools and equipment used for the farming of the lands; that upon the advice of his attorney Walter Gould Lincoln, who was his sole legal

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adviser and confidential agent, the lands and personal property used in farming the same were formed into four Massachusetts trusts; that the three trusts which held the real estate were known as “Davis Ranch Company,” “Lincoln Ranch Company,” and “Averill Ranch Company,” respectively, and that the trust which held the personal property and tools was known as “Roger Averill and Associates”; that the beneficial interest in each trust was divided into one hundred units, ten of the units in each trust being owned by Jesse F. Lincoln, ten by Paris A. Davis, and eighty by plaintiff Roger Averill; that Roger Averill, desiring to secure Walter Gould Lincoln for any attorney fee that might be coming to him for services, offered to issue Walter Gould Lincoln an authorization for ten units of each trust, said authorization not to be used until the death of Averill, and only then in case Lincoln had any money coming to him for legal services; that upon the insistence of Walter Gould Lincoln, the authorization was issued in the name of M. W. Beale, Lincoln's attorney, in whose name, he stated, all of his personal property was held; that contrary to instructions, Walter Gould Lincoln and M. W. Beale had ten units in each trust issued in the name of M. W. Beale; that M. W. Beale is a trustee, and secretary and treasurer of each of the said trusts, and also owns ten beneficial shares in each of the same; that each of the trusts is qualified under the laws of the State of California, to do business in this state; and that declarations of all of the trusts were recorded in Madera County; that in the month of December, 1938, Walter Gould Lincoln filed petitions in the Superior Court of Madera County for orders confirming and appointing the then trustees of the three trusts which held the real estate, and that orders were received from said court confirming the trustees of said trusts; that advice given by Walter Gould Lincoln as to the advantages of putting the properties into trusts was knowingly false, and was given with the intent of complicating the affairs of Roger Averill, and with the object and intent of securing for defendants Walter Gould Lincoln and M. W. Beale the direct or indirect ownership of a substantial part of the real and personal property and ranching business, and the right and power to dictate to plaintiff the management of the properties; that in this scheme, defendants wrongfully and maliciously connived, planned, conspired and confederated together; that plaintiff now finds that as a result of placing his properties in said