Karst v. Seller

SLOANE, J.

Plaintiff appeals from an order changing the place of trial of this action from the county of Los Angeles to the city and county of San Francisco.

The order was made on the application of the defendant Seller on the grounds that he is a resident, of San Francisco, that no cause of action exists in favor of plaintiff against the other defendant, J. E. Armstrong, and that the attempt to state a cause of action against said Armstrong was fraudulent and for the sole purpose of having the action tried in Los Angeles County, where said plaintiff and the defendant Armstrong reside.

The complaint is on an action to recover money paid, notes given and damages incurred by reason of a rescinded contract of sale of a motor-truck to plaintiff by alleged fraudulent and false representations. It is alleged that the two defendants were engaged in the business of selling motor-trucks, and conspired together to deceive, cheat, and defraud plaintiff; that they falsely, fraudulently, and willfully represented the truck to be a two-ton truck, entirely new, in perfect running order, whereas it was only a ton and a half truck, was not new, and had been misused and damaged; that these facts were known to defendants and unknown to plaintiff; that he had no knowledge of motor-trucks himself, but relied upon the representations and was induced thereby to make the purchase; and that he was damaged, etc.

[625]

[1]

For the purposes of the issue presented on motion for change of venue, or as against a general demurrer, this complaint states a cause of action against both defendants. If the order appealed from can be sustained, it must be on the alleged ground that the joinder of the defendant Armstrong was fraudulently made for the sole purpose of holding the action in the courts of Los Angeles County. It is provided in section 395 of the Code of Civil Procedure that “if any person is improperly joined as a defendant, or has been made a defendant solely for the purpose of having the action tried in the county where he resides, his residence must not be considered in determining which is the proper county for the trial of the action.”

Respondents, in support of the order granting the change of venue, rely upon certain facts appearing in the bill of exceptions. It appears that previous to filing this complaint plaintiff brought suit in Los Angeles County on this same cause of action against the defendant Seller alone. A change of venue was granted because of defendant’s residence in San Francisco, and the papers were transmitted to the superior court of San Francisco County, whereupon plaintiff dismissed the action and brought another suit on the same cause of action, again in the county of Los Angeles, joining as defendants J. E. Armstrong and one Sanford Wixon, the latter being also a resident of the county of Los Angeles. A change of venue to San Francisco was ordered also in this case. It does not appear from the record on what ground, but it seems to be conceded by the argument that it was on the application of defendant Seller, and because of his residence in San Francisco. Whether the ruling of the court, however, was on the ground that the complaint did not state a cause of action against the Los Angeles defendants, or on the ground that no meritorious ground of action existed against them, is not indicated. Neither does it appear from the bill of exceptions on behalf of the plaintiff that the second action was dismissed. From all that appears from the record it may still be pending in the superior court of San Francisco. However, no issue is raised on this appeal as to another action pending, and all we have to consider is whether or not a valid cause of action, pleaded in good faith, is set out in the complaint here against J. E. Armstrong.