Sullivan v. Lusk

CHIPMAN, P. J.

Motion to change the place of trial. The complaint sets forth that plaintiff was a trustee under the

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will of Lucy C. Goodspeed of certain real property situated in Butte county, devised to plaintiff in trust for the benefit of the minor children of the said Lucy C. Goodspeed, deceased; that said real estate was distributed to plaintiff to so hold in trust, by the superior court of the city and county of San Francisco in December, 1902; that said trust terminated when said children became of age and that they have become of age; that in the matter of said trust plaintiff was represented by defendants as his attorneys; that plaintiff has filed and caused to be settled his final account as such trustee, and by order of the court “this plaintiff was allowed the sum of $2,595, as compensation for attorneys employed by him in the matter of said trust”; that he has not paid the said sum to either of said defendants or to any* other person, and that defendants make conflicting claims thereto, defendant Hanlon claiming the whole of said sum and defendant Lusk claiming one-half of said sum; that plaintiff has tendered said Hanlon $1,297.50, being one-half of said sum, but that he refused to receive the same and demands the whole thereof; that “said conflicting claims are made on this plaintiff for the payment of said sum of money without any collusion or fraud upon the part of this plaintiff”; and that “plaintiff has said sum in his possession, and is willing and anxious to pay it to the parties legally entitled thereto.” Wherefore, defendants are called upon to interplead and litigate their several claims, etc.

Defendant Hanlon filed a general demurrer to the complaint and also demurred on the ground that there was a misjoinder of parties defendant in this, that no cause of action is stated against either of the defendants. Defendant Hanlon movéd the court for an order transferring the cause to the city and county of San Francisco, on the ground that at the commencement of the action it was the place of his residence, and upon the further ground that defendant Lusk is not a necessary or proper party to the action and should not be joined as defendant with defendant Hanlon.

It appeared by the affidavits used at the hearing of the motion that defendant Hanlon was, at the commencement of the action, a resident of San Francisco, and that defendant Lusk was a resident of Butte county, where the action was commenced. ¡