Donohoe v. Wooster

SLOSS, J.

The plaintiffs appeal from an order granting the motion of the defendant Wooster for a change of place of-trial.

The action was commenced in Glenn County. The complaint alleges the making of a contract between Charles L. Donohoe and Frank Freeman of the one part, and C. M. Wooster of the other, whereby Wooster agreed to pay to Donohoe and Freeman certain sums in consideration of services to be performed by them in obtaining options for the purchase of lands. A one-third interest in the contract was transferred by Donohoe and Freeman to Barceloux. It is alleged that pursuant to the terms of the contract the plaintiffs and Freeman obtained certain options and that thereby said three parties became and are entitled to receive from Wooster the sum of $15,737.24, of which amount Freeman is • entitled to receive one-third. It is alleged that Freeman has refused to join Donohoe and Barceloux as a plaintiff in the action, and for that reason is joined as defendant. The prayer of the complaint is that the plaintiffs recover judgment against Wooster for $11,481.50.

The complaint was filed in January, 1911. On the thirty-first day of January the defendant Freeman appeared by filing a demurrer. On the twenty-fifth day of February, 1911, the defendant Wooster appeared and filed a demurrer, together with a demand for a change of place of trial, notice of intention to move for such change, and an affidavit. The affidavit showed a meritorious defense, and alleged that said defendant Wooster is and at all times since the commencement of the action has been a resident of the city and county of San Francisco, state of California.

[116]

There was no counter showing and upon the hearing of the motion the court made its order changing the place of trial from the county of Glenn to the city and county of San Francisco.

Where there are several defendants in a personal action, a nonresident defendant, moving alone, is not entitled to have the place of trial changed to the county of his residence in the absence of a showing that none of the other defendants are residents of the county in which the action was brought. (Code Civ. Proc., sec. 395;

Hearne