Friedman Bag Co., Inc. v. Shrier

SPARKS, J. pro tem.

*

have petitioned this court for a writ of supersedeas to stay the trial of the above-entitled action pending appeal. The record as presented to ns shows that the complaint was filed in the Superior Court, Los Angeles County; that the defendants answered and filed a cross-complaint; and, at the time of answering, moved the court for a change of venue to the Superior Court, Kern

[563]

County, alleging that it is the county of their residence and the proper place of trial. The motion for change of venue was denied on March 27, 1961, and thereafter defendants filed their notice of appeal. Notwithstanding the taking of the appeal, plaintiff caused the case to be set for trial.

There being no statutory provisions for an automatic stay of proceedings when an appeal is taken from an order granting or denying a change of venue (Code Civ. Proc., § 949), a writ of supersedeas may issue under proper circumstances.

(Bardwell

v.

Turner,

219 Cal. 228 [25 P.2d 978].) The granting of the writ is not a matter of right, but of discretion which will be exercised only when substantial questions are presented by the appeal.

(Erickson

v.

Bohne,

120 Cal.App.2d 606 [261 P.2d 782] ;

Alhambra Shumway Mines, Inc.

v.

Alhambra Gold Mine Corp.,

109 Cal.App.2d 119 [240 P.2d 340] ;

Yee Kee Chong

v.

Pacific Freight Lines,

72 Cal.App.2d 219 [164 P.2d 43].)

Certain facts are uncontroverted. Defendants (hereinafter called “Shrier”), who reside in Kern County, California, on June 4,1957, ordered from plaintiff, Friedman Bag Company (hereinafter called “Friedman”) of Los Angeles, 25,000 burlap bags for their “Good Morning #1” brand of new potatoes. A written contract of purchase and sale was then executed by the parties wherein the price of the bags per thousand was specified, and among other terms, the following: