McSherry v. Pennsylvania Consolidated Gold Mining Co.

Fitzgerald, J. The record in this case contains two appeals, — one from an order denying defendants’ motion for a change of place of trial, the other from an order denying defendants’ motion to dissolve an injunction. The action was for an accounting, and for the recovery of certain shares of the capital stock of the defendant corporation, alleged to have been illegally sold for delinquent assessments to the said corporation, who thereafter declared a stock dividend and distributed thirty per cent of plaintiff’s stock to its stockholders, the individual defendants herein, who, it is alleged, fraudulently conspired together, and in pursuance of such conspiracy did fraudulently deprive plaintiff of his stock so sold and distributed as aforesaid. Plaintiff also obtained an order restraining and enjoining all of the defendants from disposing of any of said stock, and from levying any further assessments upon the outstanding capital stock of the defendant corporation, until the termination of this action.

The application for a change of place of trial was made by each and all of the defendants at the time of filing their demurrer, and before answering, on the ground “ that the county designated in the complaint, viz., the city and county of San Francisco, is not the proper county.” The affidavit upon which the application was

[641]based shows that at the time of the commencement of the action, and afterwards, the principal and only placo of business of the defendant corporation, and the place of residence of each of the other defendants, was in Nevada County, except the defendant Bhodes, 'whose place of residence was in Sacramento County. The application was resisted by opposing affidavits, on the grounds,. — 1. That an impartial trial of the case could not be-had in Nevada County; 2. That the convenience of witnesses and the ends of justice would be promoted by the retention of the case; 3. That the defendant Bhodes did not join in the' application, for the reason that he was never served with process, and never appeared, or authorized any one to appear for or represent him in this action; 4. Insufficiency of the affidavit of merits; and 5. That the complaint, which is verified, shows that the principal place of business of the corporate defendant is in the city and county of San Francisco..

The first and second grounds of objection are disposed of by the case of Cook v. Pendergast, 61 Cal. 12, in-which it was held that, “ independent of an express provision of statute, the superior court ought not to-be called on before issues of fact have been joined to decide- that the convenience of witnesses will be promoted by- a change of the place of trial, or that an action-oaunot be fairly and impartially tried in the county in„ which.it is pending. The Code of Civil Procedure does not require a decision which, in the nature of things, must ordinarily be premature. . ... If the motion to change the place of trial is brought to a hearing before he has an-, swered, the plaintiff cannot, by cross-motion, demand the retention of the action in the county where it is pending, on the ground of convenience,.etc.” (See also Heald v. Hendy, 65 Cal. 321.)