Kopke v. Carlson

TYLER, P. J.

Venue of action. Appeal by plaintiff from an order granting defendants’ motion for the change of place of trial. The action was brought by plaintiff as vendee against defendants as vendors for the specific performance of a contract for the purchase and sale of real property situate in Monterey County. Defendants are residents of El Dorado County. The motion was granted upon the theory that defendants were entitled to have the action tried in the county of their residence. The sole question here

[157]

presented is whether the action is local or transitory. If local, the place of defendants’ residence is immaterial. Section 392, subdivision one, of the Code of Civil Procedure provides, in substance, that actions for the recovery of real property, or interest therein or for the determination in any form of such right or interest or for injuries to the same must be tried in the county in which the subject of the action, or some part thereof, is situated. An action for the specific performance of a contract for the sale of land without more is manifestly one coming within the provisions of this section.

(Grocers’ Fruit Growing Union

v.

Kern County Land Co.,

150 Cal. 466 [89 Pac. 120];

Tutt

v.

Davis,

13 Cal. App. 715 [110 Pac. 690]; 25 Cal. Jur., p. 862.) Counsel for respondents in support of the order seek to avoid the effect of this principle by claiming that where real and personal actions are joined in the same complaint, a defendant is entitled to have the action tried in the county of his residence and we are cited to the case of

Smith

v.

Smith,

88 Cal. 572 [26 Pac. 356], and other cases of similar import as upholding this doctrine. It undoubtedly is the rule that where the main object of a suit is to recover a money judgment, as where a vendor seeks to recover the purchase price of land, that a defendant is entitled to have the action tried in the county of his residence notwithstanding that the subject matter of the action is land. But the instant ease presents no such situation. The nature of an action is to be determined from the character of the complaint and from the judgment which might be rendered upon a default thereon