Mills v. Brown

PRESTON, J.

Appeal by defendant Addie I. Try on from an order refusing to change the place of trial from the county of Sacramento to the city and county of San Francisco. She supports her demand by an affidavit of merits containing the averment that she is a resident of the city and county of San Francisco. Defendant E. H. Tryon consented to the making of said application by his co-defendant. The defendant Brown did not appear in this proceeding.

Briefly, the facts are that on the first day of October, 1925, defendant Royal G. Brown, a resident of the county of Sacramento, gave to plaintiff his promissory note in the sum of $5,647.50, and at the same time executed to her a chattel mortgage upon some 2,000 head of sheep; also the increase thereof and the wool grown upon them. The maturity date of the note was October 1, 1926. Two provisions of said mortgage were: First, it covenanted that the mortgagor would properly care for the animals and would not sell the same or any number thereof nor any of the increase thereof nor any of the wool grown upon them without the written consent of the mortgagee; and, second, that in ease of default in any of the covenants or conditions thereof, said note, together with interest accrued thereon and all other indebtedness secured by said mortgage, should immediately become due and payable, and said mortgagee

[40]

“is hereby empowered to enter into the possession of the mortgaged property, may remove, sell and dispose of said property. ...”

In addition to pleading said note and mortgage, and the amount due thereon, the complaint alleged that on or about April 1, 1926, defendants above named wrongfully took, carried away, and converted to their own use and benefit all of the wool produced and grown on said sheep so mortgaged by said defendant Royal G. Brown to plaintiff.

It is too clear for controversy that the foregoing facts authorize the maintenance of a suit by the plaintiff against defendant Brown as well as the other defendants named

(Mathew

v.

Mathew,

138 Cal. 334, 336 [71 Pac. 344]). It is also clear that the plaintiff cannot secure the full relief demanded without the presence of the defendant Brown, who is a resident of the county of Sacramento; hence, under the provisions of section