Briscoe v. Guarantee Mortgage Co.

California Court of Appeal Apr 28, 1922 No. Civ. No. 4209.Published

Before: Knight

AI Brief

AI-generated · verify before citing

Holding. The court held that a defendant is not entitled to a change of venue when other defendants remain in the action and the moving party fails to prove that those other defendants are not residents of the county where the action was filed.

Issues

Whether a defendant is entitled to a change of venue when other defendants have not joined the motion and their residency in the original county has not been disproven.
Whether a defendant who holds a promissory note sought to be canceled is a necessary party to the action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where there are several defendants in a personal action, a nonresident defendant, moving alone, is not entitled to have the place of trial changed to the county of his residence in the absence of a showing that none of the other defendants are residents of the county in which the action was brought.”

“It is alleged in the complaint that Sheagren is the holder of one of said promissory notes which plaintiff by this action seeks to have canceled, which of itself is sufficient ground for making him a party defendant.”

KNIGHT, J.,

pro tem.

This is an appeal by defendant Guarantee Mortgage Company, a corporation, from an order denying its motion for a change of place of trial from Fresno County to the city and county of San Francisco. The motion was based upon the grounds that the city and county of San Francisco at the time of the commencement of the action was the residence of the defendant Guarantee

[493]

Mortgage Company, and that the causes of action sued upon accrued in said city and county of San Francisco.

The action is one to rescind an agreement to purchase corporate stock upon the ground of fraud and upon the ground that the agreement to purchase said stock was procured in violation of the so-called “Corporate Securities Act” [Stats. 1917, p. 673] of the state of California, and to cancel two promissory notes, one for the principal sum of six thousand five hundred dollars and the other for the principal sum of three thousand five hundred dollars, given by plaintiff in payment of the purchase price of said stock. It is alleged in the complaint that the note for the sum of three thousand five hundred dollars was assigned by said defendant Guarantee Mortgage Company to the defendant B. J. Sheagren, and that the latter was at the time of the commencement of the action the owner and holder thereof. The prayer of the complaint is that the agreement for the purchase of said stock be canceled; that defendant Sheagren be required to deliver up said note for three thousand five hundred dollars, and that the defendant Guarantee Mortgage Company be required to deliver up said note for six thousand five hundred dollars, and that both of said notes be thereupon canceled, and that plaintiff have such other and further relief as to the court may seem meet and agreeable to equity.

The defendant Sheagren did not join in the action for the change of place of trial, and there was no proof offered on the hearing of said motion to show that he was not a resident of Fresno County. Under such circumstances the motion was properly denied. The rule applicable here is stated in

Donohoe

Wooster,

Briscoe v. Guarantee Mortgage Co.

AI Brief

KNIGHT, J.,

More from California Court of Appeal

Related research

AI Brief