Costello v. Bell

THE COURT.

This is an appeal from an order denying a motion of the defendants Bell and Schlut for a change of venue from the city and county of San Francisco to the county of Sacramento, their place of residence.

[103]

The facts of the case as shown by the plaintiff’s complaint are as follows: On February 9, 1913, the plaintiff was the owner of a certain Stoddard-Dayton automobile which he had intrusted to the Acme garage in San Francisco for sale. On that day the defendants Menrath and Williams (alias Fisk) undertook to purchase said machine from said garage, giving therefor a false check for the sum of one thousand three hundred dollars, being its entire purchase price; and by this means having obtained possession of the machine, they drove it to Sacramento, where they placed it with the defendants Bell and Schlut. The fraud being discovered, the plaintiff brought suit in the city and county of San Francisco against Bell, Schlut, Menrath, and Williams, setting forth the foregoing facts, and praying for the return of the machine or its value. Plaintiff also seized the machine upon the usual affidavit and writ in claim and delivery. The defendants Bell and Schlut were served with process, but the other two defendants had for the time being disappeared and could not be found. The defendants Bell and Schlut in due course appeared and made this motion to change the place of trial; and in their affidavits filed in support of said motion deposed upon information and belief that the defendants Menrath and Williams were made parties to the action by the plaintiff for the sole purpose of defeating the right of said moving parties to a change of venue. In these affidavits it was conceded that the defendant Menrath was a resident of San Francisco at the time the action was brought. Later these affidavits were amended so as to be made direct instead of upon information and belief; and the residence of Menrath in San Francisco was denied. The defendants also asserted in these later affidavits that the transaction between themselves and their co-defendants was one of sale, and that they bought and paid for the machine, and that it was their property, and that their co-defendants had no interest therein. The plaintiff by counter-affidavit denied that the defendants Menrath and Williams were made such for the purpose of defeating the other defendants’ motion for change of venue, and asserted that the defendants Menrath and Williams both resided in San Francisco at the time the action was brought, and that they were necessary and proper parties to_ it, and hence that the motion of the defendants Bell and Schlut should be denied.