Tarman v. Sherwin

DRAPER, J.

Defendant Pickens appeals from order denying his motion for change of venue. He argues that an order granting a like motion in an immediately preceding action requires transfer of this cause.

Complaint in the first action was filed in Alameda County March 13, 1959. It alleged that plaintiff and defendants Pickens and Sherwin were partners, that their written partnership agreement did not conform to their true understanding, that plaintiff had performed his agreement and that defendants had failed to do so. Prayer was for reformation of the agreement, dissolution of the partnership, cancellation of Sherwin’s interest, determination of the rights of plaintiff and Pickens, and liquidation of the partnership assets. Defendant Pickens answered and moved for change of venue to Butte County. This motion was granted May 19. The action was transferred to Butte County, where plaintiff on May 28, 1959, filed a dismissal without prejudice.

In the meantime, on May 22, plaintiff filed a new action in Alameda County. His complaint is identical with that in the previous action, except that it omits a corporate defendant which had been alleged in the first action to hold bare legal title to certain allegedly partnership property, and omits allegations of the first complaint that defendant Pickens had failed to account for all moneys received by him from sales of partnership timber. The latter allegation would seem to be

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included in the general averment, in both complaints, that Pickens had failed and refused to perform the partnership agreement. The prayer of the complaint in the second action is identical with that of the first.

Defendant Pickens answered this second action on September 4, and again moved for change of venue to Butte County. Another judge heard this motion and denied it. Defendant Pickens appeals, contending that the effect of the first order cannot be thwarted by dismissal and refiling.

Plaintiff first contends that the issue is not properly raised here because not specified as a ground in the notice of motion filed in this second action. This notice stated that Pickens would move for abatement on the ground of another action pending, or, in the alternative, for a change of venue to Butte County on the ground that it was the proper county for trial and the further ground of the convenience of witnesses. The notice specifically stated that the motion would be based upon affidavits and points and authorities “filed herewith.” It affirmatively appears that the supporting documents were in fact filed and served with the notice of motion. One of these affidavits sets out verbatim the complaint and answer in the first action, and states that motion for change of venue was granted May 19. The memorandum of points and authorities, under the heading “Court Should Respect Its Previous Order,” cited authority that the order granting change of venue in the first action is determinative of the motion in the second action. There can be little doubt that the notice fully and fairly apprised plaintiff of movant’s intention to assert and rely upon the previous order.