Jones v. McGinnis

MUSSELL, J.

The complaint, in this action to recover for injury to persons and personal property arising from a collision between automobiles which occurred on the Twentynine

[721]

Palms Highway in San Bernardino County on November 10, 1951, was filed in the superior court of said county on July 22, 1952. In this collision Raymond S. Sehieldge, Sr., and Sophie Sehieldge, his wife, driver and passenger respectively in one of the automobiles involved, lost their lives.

Marilyn S. McGinnis, who was appointed administratrix of the estates of the decedents, is a resident of Los Angeles County and the estate proceedings of the named decedents are pending therein. Defendant Marilyn S. McGinnis was served with process and is being sued not as an individual but in her capacity as administratrix. In reliance upon the provisions of section 395.1 of the Code of Civil Procedure, defendant-respondent filed a demurrer and notice of motion for change of the place of trial to Los Angeles County. This motion was supported by an affidavit of merits further alleging that the estates of said decedents are situated in the county of Los Angeles. The trial court granted the motion and plaintiffs appeal from the order granting it.

Section 395.1 of the Code of Civil Procedure was added by Statutes of 1943, chapter 1043, section 1, and provides as follows:

“When a defendant is sued in his official capacity as executor, administrator, guardian or trustee, on a claim for the payment of money or for the recovery of personal property, the county which has jurisdiction of the estate which he represents shall be the proper county for the trial of the action.”

Defendant was sued in her official capacity as administratrix and it is alleged in the complaint that the action is founded upon claims for money presented to the defendant administratrix. The county of Los Angeles has jurisdiction over the estates involved herein. Clearly, the action falls within the definition of actions described in said section and the proper place for the trial of said action is in Los Angeles county.

(Abbey

v. Schaefer, 108 Cal.App.2d 554 [239 P.2d 44].)