Dennis v. Overholtzer

[607]

McMURRAY, J. pro tem.

*

This is an appeal from an order of the Superior Court of Sonoma County denying the motion of defendants Overholtzer for a change of venue and from an order requiring certain defendants to deposit rents with the county clerk. The plaintiff, Phyllis B. Dennis, filed a complaint seeking declaratory relief and damages against the defendants Overholtzer and seeking declaratory relief against the other defendants named. The defendants W. V. Dennis, Jr., and John W. Bryson filed affidavits opposing the motion for change of venue on the ground that each of them was a resident of the county of Sonoma where the action was originally filed.

Appellants strenuously urged that Dennis, Jr., and Bryson are joined only in their capacities as lessees under a lease from the Overholtzers and that since it appears from their pleadings that they are not, in fact, adversary parties to the plaintiff Dennis they are not necessary and proper parties. Furthermore, that, since they admit the existence of the lease but merely state in their answers that they do not know whether to pay the moneys due under the lease to plaintiff Dennis or defendants Overholtzer, no controversy can exist between them and the plaintiff. In other words, the appellants base their appeal mainly upon the proposition that Dennis, Jr., Bryson and Livermore are not necessary or proper parties but are merely stakeholders.

The briefs in this matter have been of small assistance to the court as they are replete with arguments as to the merits of the action and contain many splenetic references to opposing parties and counsel.

In the complaint on file it is alleged that an actual controversy exists between the plaintiff and the defendants as to their rights and duties in respect to certain real property and the rentals which may become due. The trial court upon its hearing decided that Bryson and Dennis, Jr., were residents of Sonoma County and proper and necessary parties to the action. This was in accordance with the statement in

Monogram Co.

v.

Kingsley,

38 Cal.2d 28 [237 P.2d 265], to the effect that under the provisions of Code of Civil Procedure, section 395, where a defendant is properly named in one cause of action and he is a resident of the county where the action is brought, the venue for the entire action is in that county. Appellant seeks to have this court review the