Bardwell v. Turner

PRESTON, J.

Defendants seek a writ of

supersedeas

to stay proceedings in this cause pending their appeal from an order of the court below denying their motion for change of venue from Kern to Los Angeles County (secs. 949 and 963, Code Civ. Proc.). This is a discretionary matter and the writ will issue only when justified by a showing that substantial questions will be presented upon the appeal from an order denying change of venue

(McKenzie

v.

Los Angeles Life Ins. Co.,

88 Cal. App. 259 [263 Pac. 338]).

In this cause defendants’ moving papers were sufficient in form to satisfy code requirements (sec. 1010, Code Civ. Proc.) and consisted of a written demand for change of venue, notice of motion, motion, and affidavit of merits in support thereof, wherein defendants claimed they were

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entitled to have the cause tried in the county of their residence because the action was essentially transitory—an equitable action for an accounting. They also indicated that the convenience of both parties and witnesses would be served by the change. The first ground only need be considered.

If the subject matter of the action is local, the cause should be tried in the county where such subject matter, or some part thereof, is situated; otherwise it should be tried in the county of defendants’ residence (secs. 392, 395, Code Civ. Proc.). An action for an accounting is a proceeding in equity and is essentially a personal action; it is only when land or an interest therein is the exclusive subject matter of the action that section 392 controls. If, in one complaint, there have been united allegations and a prayer for relief in causes of action both transitory and local, defendants are likewise entitled to have the cause tried in the county of their residence

(Howe

v.

Tucker,