Gaskill v. Richmaid Ice Cream Co.

DOOLING, J.

Plaintiff appeals from an order granting a motion for change of venue from the city and county of San Francisco to San Joaquin County. One Molick as as

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signee commenced an action in the San Francisco superior court in which a motion for change of venue was granted to San Joaquin County. Molick thereupon dismissed the action and assigned the claim to appellant. Appellant then filed the instant action in the superior court of San Francisco against the same defendants on the same substantive cause of action. The complaint in the second action contained an allegation, not found in that in the first action, that it was based on “an oral contract made and entered into in the City and County of San Francisco and to be there performed.”

The order appealed from was made by the court solely on the ground “that the matter of the place of trial had been conclusively decided in said prior action as to any action upon said contract.”

It is settled that an order granting a motion for change of place of trial if not appealed from becomes res judicata of the proper place of trial in any subsequent action based on the same facts

(Karst

v.

Seller,

45 Cal.App. 623 [188 P. 298];

Fitzhugh

v.

University Realty Co.,

46 Cal.App. 198 [188 P. 1023];

Plum

v.

Forgay Lbr. Co.,

118 Cal.App. 76 [4 P.2d 804]) unless there are changed facts or new conditions since the making of the order

(People

v.

Spring Valley Co.,