Miller v. Collins

CONREY P. J.

On motion of respondent for order to dismiss appeal or affirm order denying motion for change of venue.

The complaint states a cause of action for personal injuries alleged to have been suffered by the plaintiff, resulting from the negligence of one Fred R. Collins while driving an automobile within the county of San Bernardino. It was further alleged that at the time of the accident said Collins was an employee of the defendants other than said Collins and his wife, all of whom except the defendants Collins were residing in the county of Los Angeles. This action was commenced by complaint in the Superior Court of Los Angeles County. Defendants Collins at the time of appearing and filing demurrer to complaint made demand for change of place of trial to the Superior Court of San Bernardino County, and gave notice of motion for that purpose. The motion was presented upon affidavits of the moving parties together with a counteraffidavit upon the part of the plaintiff. Such motion having been denied, defendants Collins appeal therefrom.

The principal point in controversy relates to the claim of appellants that their codefendants were by the plaintiff made defendant in the action fraudulently, “and said defendants and each of them have been improperly joined as defendants, and said defendants and each of them has been made a defendant solely for the purpose of having the action tried in the County of Los Angeles”. In support of this motion the defendant Fred C. Collins in his affidavit “alleges” that he never was a servant, representative or employee of said co-defendants or any of them; and asserts that said codefendants were joined in this action solely for the purpose of attempting to prevent appellants from having the action tried in the county of San Bernardino, where the alleged cause of action • arose and where appellants resided.

On the face of the complaint the said codefendants of the defendants Collins are proper parties to the action. The affidavit of their attorneys states facts which strongly tend to show that the plaintiff and said attorney had some reason to believe, and in good faith did believe, “that all of said de

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fendants bore responsibility and liability to the plaintiff”, and that they were proper parties defendant.