Walker v. Wells Fargo Bank & Union Trust Co.

[449]

WASTE, C. J.

Some twelve years after defendants had been appointed in Contra Costa County trustees of a testamentary trust, this action was commenced therein to have them removed and for an accounting. The individual defendant joined with the corporate defendant in moving the court below for a change of venue to San Francisco County, the principal place of business or “residence” of the corporate defendant. Pending this court’s disposition of an appeal from the order denying their motion, the defendants seek a writ of

supersedeas.

Under the provisions of section 949 of the Code of Civil Procedure an appeal from an order denying a change of venue does not stay proceedings in the absence of such a writ.

The issuance of a

supersedeas

is a discretionary matter and is justified only when there is a showing that substantial questions will be presented upon the appeal from an order denying change of venue.

(Bardwell

v.

Turner,

219 Cal. 228, 229 [25 Pac. (2d) 978];

McKenzie

v.

Los Angeles Life Ins. Co.,

88 Cal. App. 259 [263 Pac. 338].) Examination of the briefs discloses that such a showing has been here made. In fact, respondents “concede” for the purposes of this hearing “that a substantial legal question will be presented by [the] appeal”.

An action to remove a trustee and for an accounting is personal in character and triable in the county of the residence of the defendant and even the presence of the trust property elsewhere cannot deprive the defendant of his right t.o place of trial.

(Golden Cross M. & M. Co.

v.