County of Yuba v. North America Consolidated Gold Mining Co.
Before: Chipman
Synopsis
Action by County—Equity Proceeding—Injunction Against Nonresidents—Change of Place of Trial—Parties.—An action by a county brought in the superior court therein, against nonresidents to enjoin them from depositing mining debris in a river, to the injury of its property, is not a special proceeding, but is an action in equity, within the meaning of section 394 of the Code of Civil Procedure, requiring a change of the place of trial thereof to some other county. A motion to change the place of trial of such action may be made by defendants who have been served with summons, and have appeared and demurred and filed an affidavit of merits; and fictitious defendants not served with summons are not parties to be considered upon such motion.
Id.—Mandatory Statute.—The language of that portion of section 394 of the Code of Civil Procedure which applies to an action by a county as plaintiff against a mining corporation doing business in another county is mandatory that the action must, on motion of the defendant, be transferred to a county other than that of the plaintiff.
Id.—Bights of Defendant—Transfer not Allowed to Principal Place of Business.—While the mining corporation has the right to demand a transfer, no right is given to it to have a transfer of the action to the county where it has its place of business, nor to any other particular county.
Id.—Selection of County in Discretion of Court.—The selection of the county to which the case is to be transferred is left to the discretion of the court, taking into consideration all the facts appearing in the record, the convenience of witnesses so far as may be apparent before answer filed, and all other reasons that may properly affect the exercise of its discretion.
Id.—Counties Designated by Defendant—Disregarded as Surplus-age.—Where the defendant has designated alternative counties for the transfer of the cause, such designation will be disregarded as surplusage, being irrelevant and redundant matter in the motion, leaving only the demand and motion for change of venue as contemplated by the statute.
Id.—Constitutionality of Code Provision as to Action by County.— Section 16 of article XII of the constitution, providing that a corporaüon may be sued in any county where the obligation or liability arises, etc., “subject to the power of the court to change the place of trial as in other cases,” authorizes the court to look to section 394 of the Code of Civil Procedure for some of the “other cases” referred to in that section of the constitution in which the change of the place of trial is provided for.
Id.—Code Provision not Special Legislation.—Section 394 of the Code of Civil Procedure is not special legislation “regulating the practice of courts of justice,” or “providing for changing the venue of actions,” merely because it provides a different rule in the case of nonresident defendants from that which applies to resident defendants. Legislation authorizing a change of venue in the case of nonresident defendants is not in any just sense special legislation within the prohibition of the constitution.
CHIPMAN, P. J.
Defendants, North America Consolidated Gold Mining Company and Charles S. Deisem, moved for a change of the place of trial either to Sierra county or Santa Clara county. The court granted their motion to transfer the case, but designated the county of Sacramento as the place of trial. The trial judge, in making his order, rendered the following opinion in which the facts appear and in which we think the learned trial judge correctly states the law:
‘1 Some of the defendants in the above-entitled action have been sued under fictitious names and have not been served with summons, and under well-settled decisions they are not to be regarded in the consideration of the motion for a change of venue made by the defendants who have been served, have appeared, demurred and filed their affidavits of merits. This motion for a change of venue is based upon section 394 of
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the Code of Civil Procedure, or that portion of said section which is as follows:
“ ‘Whenever an action is brought by a county or city against residents of another county or city, or a corporation ■doing business in the latter, the action must be, on motion of the defendant, transferred for trial to a county other than the plaintiff, if the plaintiff is a county, and other than that in which the plaintiff is situated, if the plaintiff is a city. ’
“It is contended by the plaintiff herein that this section does not apply, basing that contention upon the claim that this is not an ‘action,’ but ‘a special proceeding.’
It is a suit for an injunction, a proceeding in equity.
‘An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection ■of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ (Code Civ. Proc., sec. 22.) ‘Every other remedy is a special proceeding.’ (Code Civ. Proc., sec. 23.) ‘Any proceeding in a court which, under the common law and equity practice, was not either an action at law or a
suit in equity
is a special proceeding under this section.’
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