McFarland v. Martin

HARRISON, C.

Appeal from an order changing the place of trial. The action was commenced in the superior

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court of Madera County, and the defendants moved that court to transfer the cause for trial to the city and county of San Francisco upon the ground that that was their place of residence at the time of the commencement of the action. The plaintiff resisted the motion upon the ground that the action is of a local nature, involving the title to certain real property in the county of Madera and the determination of the plaintiff’s interest therein. The superior court granted the motion, and the plaintiff has appealed.

The complaint alleges that on the 26th of April, 1900, the plaintiff, by virtue of an agreement of sale, for a valuable consideration paid by him to John Faubel, acquired the mining property described in the complaint, and shortly after conveyed certain interests therein to the defendants,; that he thereupon entered into a mining partnership with the defendants for the purpose of working said mining property, and in pursuance thereof they entered into the occupation of the same, erected valuable improvements thereon, “and have ever since been and are now actually engaged in working said mines and extracting mineral therefrom”; that he has laid out and expended large sums of money for the benefit of said-partnership and the developing of said mining claims; and that large quantities of bullion have been taken from said mining claims, and. have been taken possession of by the defendants, and portions thereof have been invested in improvements upon a portion of the said mining property; that on or about May 12, 1902, the defendants wrongfully and fraudulently conspired to deprive him of his share and interest in said partnership and said mining claims, and for that purpose, and in violation of their obligations as his partners, and in breach of their duty as such, acquired by purchase from said John Faubel all his interest in said mining claims, and obtained from him as grantor a deed of said mining claims to themselves, individually, bearing date May 12, 1902; that the consideration for the purchase by them of said mining ground was largely contributed by the plaintiff as a mining partner of said defendants; that prior thereto the plaintiff had been the manager and superintendent of said mining claims and had had the control and management thereof, but on said twelfth day of May, 1902, the defendants ousted him therefrom and ignored all his rights and interests thereunto, and