County of Modoc v. Madden

VAN DYKE, J.

This is an-appeal from an order changing the place of trial. The action was brought by the county of Modoc, plaintiff, against John Madden as principal, on a bond given by him as treasurer of said county, and twenty-two others, defendants, as sureties on said official bond, to recover the sum of $34,825.35, alleged to have been fraudulently appropriated by said defendant Madden to his own use and benefit while acting as such treasurer. The action was commenced August 5, 1897, and it appears that between the 23d of July, 1897, and the commencement of the action said Madden absconded. Service of summons was made on all the defendants, excepting Madden and Mat Healey. Defendant Mat Healey died intestate in the city and county of San Francisco, September 27,1897, and in November, 1898, letters of administration were issued to the respondent, J. W. Hosselkus, as administrator of the estate of said Healey, deceased. Thereafter, July, 1899, on motion made, said administrator was substituted in said action in place of Mat Healey. On the fifth day of September, 1899, said Hosselkus, administrator of the estate of Mat Healey, appeared in said action, and at the same time moved for change of venue to the county of Lassen, on the ground that said Mat Healey in his lifetime, and also his administrator, were residents of said county. The

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motion was heard upon affidavits, documentary evidence, and oral testimony. The court, in its so-called findings granting the motion, recites that another action had heen commenced on the third day of August, 1897, in the name of the people of the state of California, against the same defendants as in this action, and for the same cause of action. Thereafter, in such other action, a judgment was made and entered against all the defendants, except the defendants Mat Healey and Madden, upon stipulation, for the sum of fifteen thousand dollars, in full satisfaction as to said defendants; “and that this action No. 1091 be dismissed as to all of the defendants herein, except the defendants John Madden and Mat Healey;” that said Madden since he absconded has resided elsewhere as a fugitive from justice.

On the part of the respondent the contention is that the bondsmen having been released from liability upon the satisfaction of the judgment against them in the other case (No. 1090), and Madden being a fugitive from justice and his whereabouts unknown, this action, Modoc County against Madden et al., was in substance an action against-Hosselkus as administrator of the estate of said Healey, “he being the only person remaining having any interest in the subject-matter of the litigation,” and “such being the case, and he and the deceased, whom he represented, being both residents of Lassen County at the time the action was commenced, and Hosselkus continuing such residence when the motion was made, he was entitled to the change asked for, under the provisions of sections 394 and 395 of the Code of Civil Procedure. ’ ’