Eddy v. Houghton

TAGGART, J.

Appeal from an order denying motion for change of venue.

The action was begun in Los Angeles county, and the application for change of place of trial was made by the defend-' ants P. T. Houghton and Merced Security Savings Bank. It was based upon the grounds that the cause of action related to a controversy over real property situated in the county of Mariposa, and the real defendant and party in interest (Houghton) was a resident of Mariposa county. Two demands for a change appear in the record, one by the defendant Merced Security Savings Bank, and the other by the defend

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ant Houghton, and the latter files an affidavit setting out that he is the only real party in interest as defendant in said action, and that all the other persons named as defendants are mere nominal parties. The defendant Tennessee-California Gold Mining Company, which joins the plaintiff in resisting the motion, files a verified answer presenting its interest in the subject matter of the action brought by plaintiff.

In determining the cause of action to be tried neither the affidavit nor the answer can be looked to. The effect of the complaint in this respect cannot be varied by either. Only as affecting the question of residence will they be considered.

(Quint

v.

Dimond,

125 Cal. 572, [67 Pac. 1034].)

The only cause of action attempted to be stated in favor of plaintiff is one against the defendants Merced Security Savings Bank and Houghton, and is to compel the bank to deliver to plaintiff certain shares of stock of the defendant corporation, Tennessee-California Gold Mining Company, in which Houghton is interested.

The relations of the parties to the transactions involved in the action, as disclosed by the complaint, are: The plaintiff and defendant Guenther were pledgors of the shares of stock, the bank, the pledge-holder and the defendant Houghton, the pledgee. There is no real property involved in the said cause of action attempted to be stated in favor of plaintiff. The extensive allegations of probative facts anticipating the bank’s reason for refusing to deliver the stock constitute no part of the statement of a cause of action which the court can consider on this motion.