McDonald v. California Timber Co.

BEATTY, C. J.

This is an appeal hy the corporation defendant from an order of the superior court denying its motion for a change of the place of trial. The action is for damages for personal injuries received at the mill of appellant in San Mateo County during the course' of plaintiff’s employment there, hut it was commenced in the county of Santa Cruz. The principal place of business of the corporation is at the city of San Francisco. As the action was not commenced in the county where the liability arose, appellant, if it had been the sole defendant, would have had the undoubted right to demand the removal of the cause to San Francisco for trial. (Code Civ. Proc., secs. 395, 397 ; Const., art. XII, sec. 16 ;

Cohn

v.

Canadian Pacific Ry. Co.,

71 Cal. 488, [12 Pac. 498], and eases cited in note to that case.) But the cor

[160]

poration was not the sole defendant named in the complaint, and since there was ample evidence to justify the superior court in finding that its co-defendant, Dent, from the time of the alleged injury to the commencement of the action, had been a resident of Santa Cruz County, that fact was a complete answer to the motion of the corporation, based as it was upon the sole ground that the county of Santa Cruz was not the proper county for the trial of the action, unless it had a right to show, and succeeded in showing, as it attempted to do, that the plaintiff, without having any cause of action against Dent, or any reason to believe that he was liable to respond in damages for the injury alleged, had fraudulently named him as a defendant for the mere purpose of defeating the right of the real defendant to demand a change of the place of trial to the county of its legal residence. This, therefore, is the sole question which the case presents.

At the time of its appearance the appellant filed an affidavit of merits and the demand prescribed by section 396 of the Code of Civil Procedure, and gave notice of its intention to move for a change of the place of trial to the city and county of San Francisco. The grounds of the motion specified in the notice were the following:—