Rowland v. Bruton

CONREY, P. J.

The cause pending herein is an appeal from an order of the Superior Court of Los Angeles County, denying an application for change of place of trial of the action from the Superior Court of the County of Los Angeles to the Superior Court of the City and County of San Francisco. The transcript was filed on November 19, 1931, and appellant’s brief was filed on December 22, 1931.

[699]

Upon application of the attorney for respondent his time for filing brief was extended to February 1, 1932. . No further extension of time was requested or granted and no brief has been filed for respondent. On this condition of the record appellant has submitted his motion that the cause be submitted for decision upon appellant’s brief.

In rule V, section 1, of the rules of this court, it is provided that if respondent shall not file Ms points and authorities within the time allowed therefor, the cause may be submitted for decision upon appellant’s brief, in which case the court may, in its discretion, decide the case upon the statement of facts contained in such brief. It appears that the motion is meritorious and should be granted. We will therefore proceed to determine the appeal on its merits.

This action was brought against appellant Bruton, administrator of the estate of Josephine Park Tearle, and against National Surety Company, Wm. I. Traeger (sheriff of Los Angeles County), and Conway Tearle, to recover damages for conversion of two automobiles alleged to have been the property of the plaintiff. It appears from the complaint that these automobiles were seized by the sheriff under a writ of execution issued out of the Superior Court of the City and County of San Francisco, in an action of Mrs. Tearle as plaintiff, wherein she had obtained a judgment against Conway Tearle. Plaintiff duly filed a third party claim to said automobiles and thereupon (July 12, 1930) Mrs. Tearle filed with the sheriff indemnity bonds and required the sheriff to retain the property under the writ of execution. Thereafter the property was sold under said writ. The plaintiff alleged her ownership of said automobiles and the facts showing her damages by reason of the unlawful seizing, taking, withholding and sale of her property.

Defendant Bruton, upon the filing of Ms demurrer to the complaint in said action, filed an affidavit showing his status as a resident of the city and county of San Francisco, and demanded that the place of trial of the action be transferred to that city and county. A motion to that end was duly presented to the court and was denied. Thereupon defendant appealed from the order denying change of place of trial.