City of Stockton v. Wilson

FINCH, P. J.

The plaintiff, a city situated in San Joaquin County, commenced the above-entitled proceeding in Calaveras County to condemn the defendants’ lands in the latter county for a reservoir site. The plaintiff thereafter duly moved the trial court to transfer the proceeding to some other county for trial, on the sole ground that the defendants are residents of the city and county of San Francisco, and, by two separate orders, the court transferred the proceeding to Amador County. The defendants have appealed from both orders. The facts are undisputed and the only question presented is whether the plaintiff was entitled to the transfer on the ground stated. Section 394 of the Code of Civil Procedure provides:

“An action or proceeding against a county, or city and county, may be commenced and tried in such county, or city and county, unless such action or proceeding is brought by a county, or city and county, in which case it may be tried in any county, or city and county, not a party thereto. Whenever an action or proceeding is brought by a county, city and county, or city, against a resident of another county, city and county, or city, or a corporation doing business in the latter, the action or proceeding must be, on motion of

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either party, transferred for trial to a county, or city and county, other than the plaintiff, if the plaintiff is a county, or city and county, and other than that in which the plaintiff is situated, if the plaintiff is a city, and other than that in which the defendant resides or is doing business or is situated. Whenever an action or proceeding is brought against a county, city and county, or city, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, other than that in which the defendant is situated, the action or proceeding must be, on motion of the said defendant, transferred for trial to a county, or city and county, other than that in which the plaintiff, or any of the plaintiffs, resides, or is doing business, or is situated, and other than the plaintiff county, or city and county, or county in which such plaintiff city is situated, and other than the defendant county, or city and county, or county in which such defendant city is situated.”

Plaintiff’s application for a transfer comes within the literal language of the second sentence of the section quoted. The question to be determined is whether it comes within the spirit and intent of that section. The evident purpose is to guard against local prejudices which sometimes exist in favor of litigants within a county as against those from without and to secure to both parties to a suit a trial upon neutral ground. But, at the time the motion was made, in so far as appears, the proceeding was pending in a neutral county, a county “other than that in which the plaintiff is situated” and “other than that in which the defendants reside,” so that no purpose was to be served by a transfer to another neutral county. To require a transfer under such circumstances would be to require an idle act. “The law neither does nor requires idle acts.” (Civ. Code, sec. 3532.) From the terms of section 394, viewed in the light of other sections relating to venue, it seems clear that its provisions were intended to apply to actions or proceedings commenced in a plaintiff county, the county in which a plaintiff city is situated, or the county of a defendant’s residence. Section 1243 of the Code of Civil Procedure provides that proceedings in eminent domain “must be commenced in the superior court of the county in which the property sought to be taken is situated.” After so pro