Brooks v. Douglass

By the Court, Currey, C. J.: This action was brought in the District Court of the Twelfth Judicial District, in and for the City and County of San Francisco, by the plaintiff in possession by his tenant of certain real property in said city and county, against the defendants, who claimed some estate or interest in the property adverse to him, for the purpose of determining such adverse claim, estate or interest. Before Douglass and wife appeared in answer to the summons in the case, David Calderwood petitioned to be allowed to intervene by uniting with them in defense, on the ground that he had contracted to purchase of them an undivided half of their interest in the premises for a certain consideration, a part of which he had paid. This petition was granted, and thereupon Douglass and wife and Calderwood united in an answer traversing the material allegations of the complaint and also pleading some affirmative matters in bar of plaintiff’s right to maintain the action. Some time after this, on their application, the place of trial was changed to the District Court of the Third Judicial District, in and for the County of Alameda, in which latter district and county the 'cause was brought on for trial by the plaintiff in the absence of the defendants. The cause was submitted to the Court upon the pleadings and evidence produced by the plaintiff. Whereupon a judgment and decree was rendered for the plaintiff in accordance with the prayer of the complaint. After this Douglass and wife and Calderwood gave notice of their intention to move for a new trial, on the grounds: First, Of [210]surprise, against which ordinary prudence could not have guarded. Second, Of the insufficiency of the evidence to justify the decision of the Court; and Third, That such decision was against law.

The motion being denied, Douglass and wife and Calderwood appealed.

I. The matters of surprise specified were alleged to be, in the first place, that,the pleadings and proceedings in the cause were transmitted from the Court in which the action was commenced to the District Court in and for Alameda County by the procurement of the plaintiff’s attorney after the order changing the place of trial was made; and, in the second place, that the testimony of a witness for the plaintiff as to the nature of the plaintiff’s possession of the premises was not true, by reason whereof the defendants were taken by surprise.

The appellants claim that by the rules and practice of the District Court the .party moving the change of venue was the party to pay the costs and have the cause duly transferred and placed on the calendar of the Court to which it was ordered transferred for trial, on written notice to the opposite party, and that if the appellants failed to pay the costs of transfer and to have the pleadings and proceedings in the cause .transferred as ordered, the plaintiff’s remedy was to move the Court on affidavit, showing the laches of the appellants, and thereon obtain an order vacating the order changing the venue.