Robinson v. Williams

BURNETT, J.

The appeal is from an order denying'defendant’s motion for a change of venue to the county of Los Angeles. The action was begun in Kings county wherein is

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located the real property in controversy. Defendant, at the time of the commencement of the action, resided and ever since has resided in the said county of Los Angeles and his contention is that the ease is one where the defendant is entitled to have the cause tried in the county of his residence.

The decision depends upon the proper application of sections 392 and 395 of the Code of Civil Procedure to the scheme of the complaint. The former provides that “Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial as provided in this code: 1. For the recovery of real property or of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property,” etc., and, according to section 395, “In all other cases, the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action.” It follows, therefore, and it is conceded, that if the gist of the action involves the determination in any form of a right or interest in or to the said real property the order of the court below denying the motion must be affirmed.

The complaint sets forth a written agreement, of date June 1, 1906, executed by the defendant and plaintiff’s assignor, one F. E. Robinson. Therein said Robinson agreed to sell to defendant the said real property for the sum of $10,000, payable as follows : $1,010 upon the execution and delivery of the agreement (receipt of which by the vendor was acknowledged in said agreement) and the balance in six annual installments. Of these installments $1,398 was payable on or before September 1, 1907. It was also provided in said agreement that in the event of the vendee’s failure to comply with its terms the said agreement, at the option of the vendor or his assigns, should become void and the vendor should be thereupon released from any obligation to convey said property “or to refund any of the payments theretofore made under this agreement, but second party shall thereby forfeit all right to said conveyance and to said payments.”