Aisbett v. Paradise Mountain Mining & Milling Co.
Before: Shaw
Synopsis
Venue—Application por Change—Presumption as to Residence op Dependants.—Where the complaint and record are silent upon the subject, the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is upon them to show that they were, at the commencement of the action, residents of another county than that wherein the suit is brought and to which they ask the place of trial to be removed.
Id.—Residence op Dependants—Corporation—Section 395 op the Code op Civil Procedure.—An action against a corporation and others to have a stock assessment adjudged invalid may be brought in the county where defendants other than the corporation reside; and the fact that resident defendants join with nonresident defendants in a written demand to have the cause removed to another county does not entitle the nonresidents to such removal, section 395 of the Code of Civil Procedure providing that the proper place for trial is “the county in which the defendants, or some of them, reside at the commencement of the action.
SHAW, J.
This is an appeal from an order denying a motion made by defendants for a change of the place of trial
[268]
from the county of Los Angeles to the county of San Bernardino.
The action (one other than those described in sections 392, 393, and 394 of the Code of Civil Procedure) is brought by stockholders of the Paradise Mountain Mining and Milling Company, a corporation, against said corporation and members of its board of directors, joined therewith as defendants, to have declared null and void certain proceedings wherein an assessment was levied upon the corporate stock of the corporation, and to enjoin a sale of plaintiffs’ stock for failure to pay said assessment, as well as for other relief.
Section 397 of the Code of Civil Procedure provides that the court may, on motion, change the place of trial when the county designated in the complaint is not the proper county. The proper county for the trial, as appears from 'section 395 of the Code of Civil Procedure is “the county in which the defendants, or
some of them,
reside at the
commencement
of the action.” If the county wherein the action is brought is not the proper county, “the action may, notwithstanding, be tried therein,” (Code Civ. Proc. sec. 396), unless the defendants avail themselves of their right to secure a removal in the mode prescribed by the statute. All of the defendants herein, other than Y. P. Preciado, joined in a written demand for the removal of the place of trial to San Bernardino County and appellants concede that defendants other than Preciado were necessary parties. The ground therefor, as stated in the notice of motion, was that they were all residents of said county. Where the complaint and record,
as here,
are silent upon the subject, the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is cast upon them to show that they were at the commencement of the. action residents of another .county or counties of the state than that wherein the suit is brought, and to which they ask that the place of trial be removed.
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)