Greenleaf v. Jacks

GRAY, C.

—This action' is brought in San Luis Obispo County, and is based upon several certificates of deposit issued by the County Bank of San Luis Obispo County. This bank is alleged to have been located, as to its principal place of business, in the county of San Luis Obispo, and the certificates of deposit are dated at San Luis Obispo, California, and provide for the repayment to plaintiff of the several amounts deposited by her, with interest thereon at “ five per cent per annum until due.” It is further alleged in the complaint that the said several amounts were “ loaned to and deposited with said bank at said city of San Luis Obispo.” It is also alleged that on a certain date the said bank closed its doors and ceased doing business. The plaintiff brings this action against the defendants jointly, on account of their liability as stockholders

[507]

in said bank. The Goldtree Brothers Company appeared by demurrer, and at the same time filed an affidavit and demand for a change of venue to San Francisco, on the ground that their residence and principal place of business was there, and they had incurred no liability in San Luis Obispo. The motion, based on said demand and affidavit, was denied by the court, and said Goldtree Brothers Company appeal from the order.

There is nothing, either in the affidavit for a change of venue, or elsewhere in the record, to show in what county the defendants, other than appellant, reside.

Under the provisions of section 322 of the Civil Code, the defendants were properly joined in one action. Section 395 of the Code of Civil Procedure provides: “In all other cases the action must be tried in the county in which the defendants,

or some of them,

reside at the commencement of the action.” An examination of the three sections immediately preceding this, in the same code, shows us that this action comes under the section from which we quote. The appellant being the moving party, the burden was upon it to show that it was entitled to a change of venue; and to show this, under said section 395, it must be made to appear that none of the defendants resided in San Luis Obispo County.

(Hearne