Prendergast v. Mitchell-Silliman Co.

STURTEVANT, J.

This is an appeal from an order denying the motion of the defendant to- -change -the place of trial. On May 17, 1921, the plaintiff commenced an action against the defendants by filing in the office of the county clerk of San Francisco a -complaint in which he alleged that he had been employed by the defendants, had rendered service for them, and that the reasonable value of his services was $2,600, -of which $1,823 remained unpaid. Thereafter summons was served on each of the defendants except the fictitious defendants John Doe and Richard Roe. Thereafter C. P. Lacey, Esq., as attorney for all defendants except the fictitious defendants, gave notice: “Said motion will be made upon the ground that at the time of the commencement of said action the defendants O. P. Silliman, W. G. Silliman and Lee Post, were and are now residents of Monterey County, California, and the Mitchell-Sillim-an Company, a corporation, and the Monterey County Bank, a corporation, at the time of the commencement of said action had and maintained, and still have and maintain their respective principal places of business in Monterey County, California, and that said Monterey County, California, is the proper county for the tx*iai of said action.” That notice was -accompanied by a demand signed by each of the defendants. It was also accompanied by affidavits as follows: (1) The affidavit of

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0. P. Silliman as president of the Mitehell-Silliman Company, a 'Corporation, from which affidavit it appears that the principal place of business of the corporation is Salinas City, Monterey County; (2) the joint affidavit of 0. P. Silliman, W. G. Silliman, and Lee Post, from which it appears that each of them was a resident of Monterey County when the action was commenced, and (3) the affidavit of Luther Rodgers, president of the Monterey County Bank, from which it appears that said bank is a corporation and has its principal place of business at Salinas City, Monterey County; and said moving papers were accompanied by a demurrer. Each of said papers was filed on October 13, 1921. The return date of the motion, as ¡alleged in the notice of motion, was October 28, 1921.

After the service and filing of said papers the plaintiff appeared in the county clerk’s office 'and directed the county clerk to dismiss the action as to the defendants O. P. Silliman, W. G. Silliman and Lee Post. A few days later he filed his own affidavit to the effect that “The obligation and liability -of said defendants thereunder, -and breach thereof, arose in the -city and county of San Francisco ...” Later the motion was presented to the trial court, supported by the papers designated, the motion was denied -and a notice of appeal was filed which purports to be the appeal of each and all of the defendants except John Doe and. Richard Roe. It is not disputed that the fictitious defendants are to be disregarded in determining a motion for the change of a place of trial.