Ferguson v. Koerber

STURTEVANT, J.

The trial court granted a motion made by the defendants changing the place of trial of the above-entitled action from San Francisco to Santa Clara County. The plaintiff has appealed. The correctness of the ruling made by the trial court depends upon a consid

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eration of a number of dates. The plaintiff’s intestate was, during her lifetime, the owner and in possession of (1) lawful money of the United States in the sum of $11,195; (2) jewelry amounting to the value of $3,500, and (3) a large number of oil paintings.

On the twenty-third day of July, 1920, May Ferguson died. Commencing as early as June, 1920, her daughter, Alice L. Koerber, one of the defendants, commenced to claim title to some of the above properties. As the agent of his wife William L. Koerber commenced to assist her. The paintings above mentioned were and had been at the time of the death of May Ferguson in the possession of Howard Le Fort and C. Lepori, residents of San Francisco, who had the paintings in the Justice Cafe at 646 Washington Street, San Francisco. Shortly after the death of May Ferguson, William J. Ferguson, her surviving husband, was appointed administrator of the estate of his deceased wife. Thereafter on June 5, 1922, the administrator commenced this action to recover the possession of all of said properties. He made the Koerbers, Le Fort, and Lepori defendants. Later Le Fort appeared and filed a demurrer. On June 26, 1922, the Koerbers appeared and filed a demurrer, and at the same time they served and filed a demand, notice of motion, and affidavits asking that the place of trial be changed to Santa Clara County. In their moving papers they set forth that they resided in Santa Clara County and that Le Fort and Lepori were not connected with the alleged cause of action. In their demurrer, among other attacks, they claimed that the complaint stated a cause of action against Mr. and Mrs. Koerber for cash and jewelry, -and a cause of action against Le Fort and Lepori for the paintings. The trial court denied the motion and later sustained the demurrer. The plaintiff amended. The defendants filed another demurrer making the same attack, the trial court sustained it and gave leave to amend. The ■ plaintiff filed a second amended complaint omitting all reference to the paintings. To that pleading the Koerbers interposed a general demurrer and without leave of court renewed their motion to change the venue, basing their motion on the ground that they were residents of Santa Clara and for that reason the action should be transferred to Santa Clara. The