Baker v. Fireman's Fund Insurance

Searls, C. J. — The action in this cause was brought in the Superior Court of the county of San Joaquin to procure a decree declaring a deed absolute on its face to hy a mortagage, and for a reconveyance of the real estate described in said deed, which real estate is situate in said county of San Joaquin.

Defendant, a corporation organized and existing under and by virtue of the laws of the state of Cali[183]forma, and having its principal place of business at San Francisco, demanded a change of the place of trial to the city and county of San Francisco, which demand was not acceded to; whereupon defendant moved upon affidavit and upon the papers in the cause for a change of the place of trial to said last-mentioned city and county

'The motion was at first granted, but on the following day the order granting the change as asked for was set aside upon the ground that it “was inadvertently made,” and an order entered denying such motion.

From this order defendant appeals.

The only other facts deemed essential are, —

1. Defendant sets out in its affidavit that San Francisco is its residence.

2. It appears from the complaint that defendant was and is conducting and carrying on business in the state of California and in the county of San Joaquin.

3. The deed and agreement, which taken together are claimed to constitute a mortgage, were made and executed by plaintiffs and one H. Barnhart, who, according to the recitals of the agreement, were residents of the county of San Joaquin, and they were acknowledged and certified before a notary of said last-mentioned county.

Defendant holds as an assignee of Barnhart.

Beyond the recitals above referred to in the agreement, which is set out in the complaint, there is no affirmative allegation as to the residence of the parties or place at which the contract sued on was made.

Appellant contends,—

“ 1. That the proper county for the trial of this action is one in which the principal place of business of the defendant is situated, and that the case does not come within any of the other specifications of section 16 of article 12 of the constitution, or within the proviso to section 5 of article 6.