Winterburn v. Sheriff

FINLAYSON, P. J.

The defendant Carrie V. Sheriff appeals from, an order denying her application for a change of the place of trial to the county of her residence, Santa Barbara County.

The action was brought in the county of Los Angeles, where the corporation defendant has its principal place of business. Save for its prayer for general relief the only remedy sought by the complaint is that which is afforded by section 328 of the Civil Code, which, so far as it is pertinent, reads: “Whenever a certificate of stock or of shares in a corporation organized under the laws of this state has been lost, destroyed or wrongfully withheld, the owner thereof may bring an action against such corporation in the superior court of the county in which is located its principal place of business, for the purpose of obtaining a new or duplicate certificate. If by the books of the corporation the stock stands in the name of a person other than the plaintiff, or if by such books it appears that some other person claims or has some right, title or interest in, or lien upon, such stock, all such persons must be made parties defendant with the corporation. Summons must be issued and served as in other civil actions, and in addition thereto, the court must direct its clerk to issue ... a notice setting forth the pendency of the action ... ; if no one appears within the time designated in such notice, nor within the time allowed by law after the service of such summons, the court must hear such evidence as may be offered in support of the allegations of the complaint, and make and file its decision thereon, and thereupon may enter its judgment canceling the lost, destroyed or wrongfully withheld certificate and directing the corporation, upon payment to it of all costs incurred by it in the premises and without costs against

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the corporation, to issue to the plaintiff a new or duplicate certificate. ’ ’

After alleging that the defendant Penn Investment Company is a corporation having its principal place of business at Los Angeles, and that it had theretofore issued to plaintiff certain of its certificates of stock, the complaint alleges that “the defendant Carrie V. Sheriff is wrongfully in possession of said certificates and wrongfully withholds the same from this plaintiff, who is the owner thereof as aforesaid; [and] that all of said certificates of stock are lost to this plaintiff.” Wherefore plaintiff prays judgment “canceling said lost certificates and each of them and directing the corporation defendant ... to issue a new certificate.”