McKenzie v. Barling
Before: McFarland
Synopsis
Change of Place of Trial—Residence of Defendants.—Where one of the defendants resides in the county in which the action is brought, that county is not an improper county for the trial, and the fact that the remainder of the defendants reside in another county does not entitle them separately to move to change the place of trial to the county in which they reside.-
Id.—Joinder in Motion.—Where any of the defendants reside in the county in which the suit is brought a motion to change the place of trial to a county in which others of the defendants reside will not be granted, unless all of the defendants join in the motion, or unless good reason is shown why they have not so joined.
Id.—Parties—Consent of Resident Defendant—Insolvency. — Where it sufficiently appears upon the face of the complaint that a defendant residing in the county where the suit is begun is not a proper and necessary party to the action the other defendants may have the trial changed to the county where they reside, without the consent of the resident defendant; but where the complaint states the same cause of action as to all of the defendants, the fact that the resident defendant is alleged to have commenced proceedings in voluntary insolvency, and that he is sought to be charged with the indebtedness as having been contracted in a fiduciary capacity, does not render him a nominal defendant, or entitle the other defendants to have the place of trial changed without his consent.
Id.—Affidavits on Motion—Conflict.—Where the affidavits used upon a motion to change the place of trial go mostly to the merits of the action, and all the statements therein are controverted by conflicting affidavits, the ruling of the court in denying the motion will not be reversed upon appeal.
McFarland, J.— This is an appeal by some of the defendants from an order of the superior court denying their motion for a change of the place of trial.
The action was brought against the defendants, Bar-[460]ling, Cohen, W. F. Beck, and Alfred Beck, to recover a money judgment. The complaint avers that the defendants were partners in the business of receiving raisins, preparing them for market, and selling them— the profits to be divided with those furnishing the raisins in the raw state; that plaintiffs furnished them certain raisins which defendants prepared and sold for a certain amount of money; and that defendants refuse to pay plaintiffs any part of said money, etc. The suit was commenced in Fresno county. The defendants, Cohen and the two Becks, moved the court for a change of venue to Alameda county, upon the ground that Alameda and not Fresno is the “proper” county for the trial, because said defendants, Cohen and the Becks, reside in Alameda county. It is admitted, however, that the residence of the defendant Barling is in Fresno county.
We do not think that the court erred in denying the motion. In the first place, it cannot be said that under the general provision of the statute Fresno was “ not the proper county for the trial”; for the provision is that, in cases like the one at bar, “the action must be tried in the county in which the defendants, or some of them reside.” (Code Civ. Proc., sec. 395.) Therefore, as defendant Barling resided in Fresno county, the latter .is not an improper county for the trial. And it has been settled that where, in a case coming under section 395 of the code, any of the defendants reside in the county in which the suit is brought, a motion to change the place of trial to a county in which others of the defendants reside will not be granted unless all of the defendants join in the motion, or unless good reason is shown why they have not so joined. (Pieper v. Centinela Land Co., 56 Cal. 173; Remington S. M. Co. v. Cole, 62 Cal. 311; Fickens v. Jones, Parker’s Cal. Dig., p. 83—not reported in Cal. Reports, but cited in Pieper v. Centinela Land Co., 56 Cal. 173. See, also, Sailly v. Hutton, 6 Wend. 508; Legg v. Dorsheim, 19 Wend. 700; Simmons v. Mc-Dougall, 2 How. Pr. 77.)
[461]
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