Coley v. Hecker

THE COURT.

A hearing in bank was ordered in this cause after a decision thereof by department one of this court. Upon a further consideration of the cause upon such hearing we are satisfied with the decision of the department, and hereby adopt the same as the decision of the court in ■bank. Said decision reads as follows:

“This appeal is from an order denying the demand of appellants for the change of the place of trial from the county of San Joaquin, in which county the action was commenced, to the place of the residence of the respective appellants, to-wit, the city and county of San Francisco. It is the contention of respondent that the action is one to remove a cloud upon his real property and for the determination of an interest in said real property situate in said county of San Joaquin and that the venue is, under the provisions of section 392, Code of Civil Procedure, where said real property is situated.

[24]

“The only papers offered upon the hearing in support of the motion were the complaint and the demurrers of the respective appellants, general and special.

“In considering the appeal the allegations of the complaint must be taken as true. The allegations of the complaint are to the effect that respondent was the owner of a large number of lots, pieces and parcels of land situate in said county of San Joaquin; that on May 18, 1925, and while he was and continued to be such owner, one Barbara Hecker recovered in the superior court of the city and county of San Francisco a judgment in the sum of $12,925.73 and costs against him and his co-surety, J. L. Craig, upon an appeal bond jointly executed by them with one Walter F. Hogan, as principal. On May 19, 1925, respondent and said Craig took an appeal from said judgment by filing in the office of the county clerk of the city and county of San Francisco a notice of appeal and entering into a written undertaking on appeal in the sum of $26,000 to stay the execution of said judgment, with two sureties, and on said day notified appellants herein that said undertaking had been filed. On May 21, 1925, said appellants served upon respondent, J. A. Coley, and his co-surety, J. L. Craig, notice of exception to said sureties. Five days thereafter, to-wit, May 26, 1925, said respondent, Coley, and Craig served upon appellants notice of justification of sureties and filed said notice on the same day in the office of the county clerk of said city and county of San Francisco. The time therein fixed for justification was May 28, 1925. On the date last above mentioned one of the original sureties and a third person, who was substituted in place of the other original surety, appeared and justified before a judge of the superior court of said city and county of San Francisco upon a written undertaking as required by law in the sum of $300 for costs and in more than double the amount named in said judgment, to-wit, the sum of $26,000. Said undertaking was then and there, in the presence of Harry I. Stafford, the agent and attorney for appellants, regularly approved by said judge of the superior court. Said appellants were, on said May 28, 1925, regularly notified that said undertaking staying execution had been filed and that said sureties had justified and that said bond had been approved by said judge of the superior court.