Keithly v. Lacey

WILSON, J.

Defendant has appealed from an order denying his motion for a change of venue from Los Angeles County to Inyo County where he resides.

Respondents allege in their complaint that appellant holds in trust for them an undivided one-half interest in real property in Los Angeles, Tulare and Inyo Counties, personal property consisting of ten first mortgage bonds having a par value of $1,000 each, a recorded livestock and cattle brand, and $8,000 in cash. They pray for a decree establishing the trust and directing defendant to execute such conveyances as shall be necessary to convey to plaintiffs their respective interests in the property.

Respondents’ position is that since the action involves real property it should be tried in Los Angeles County where some of the real property is located (Code Civ. Proc., § 392, subd. 1), and appellant contends that since the action is partly local and partly transitory he is entitled to a trial in the county in which he resides.

If the action involved real property alone the contention of respondents would be sustained, but they seek to recover an interest in both real and personal property. Where real and personal actions are joined in the same complaint the ■case must be tried in the county in which the defendant resides if he so demands

(Smith

v.

Smith,

88 Cal. 572, 576 [26 P. 356] ;

Stesel

v.

Santa Ana River Water Co.,

35 Cal.App.2d 117, 125 [94 P.2d 1052];

Brown

v.

Happy Valley Fruit Growers, Inc.,

206 Cal. 515, 523 [274 P. 977];

Warner

v. Warner, 100 Cal. 11, 16 [34 P. 523];

Sheeley

v.

Jones,

192

[341]