Bailey v. Cox

California Supreme Court May 1, 1894 No. No. 15416Published

Before: Searls

AI Brief

AI-generated · verify before citing

Holding. The court held that the action must be transferred to the county of the defendant's residence because the defendant was the only party against whom relief was sought and the action was personal in nature.

Issues

Whether an action to annul mortgages on real property must be tried in the county where the land is situated or the county of the defendant's residence.
Whether the joinder of nominal defendants residing in the county where the action was filed defeats a defendant's right to a change of venue.

Disposition. reversed

Quotations verified verbatim against the opinion

“the only defendant against whom plaintiff shows himself entitled to any practical relief is John Tuohy, who is shown to be a resident of the county to which the trial is sought to be changed.”

“the order appealed from should be reversed and the court below directed to enter an order transferring the cause to the county of Tulare for trial.”

Synopsis

Venue of Action—Cancellation of Mortgages by Corporation to President—Residence of Principal Defendant—Stockholders as Parties Defendant.—In an action by a stockholder to set aside and cancel mortgages given by a corporation to its president upon land in the county where it has its principal place of business, and where the president resides, and for a decree fixing the indebtedness of the corporation upon the mortgage notes, the mortgagee, being the only defendant against whom any relief is sought, has the right to have the cause tried in the county of his residence, notwithstanding the fact that a considerable number of the stockholders are made defendants, and are residents of another county in which the action is brought.

Searls, C. This is an appeal from an order of the superior court in and for the county of Santa Clara denying a motion of defendant Tuohy to transfer the cause from said county of Santa Clara to the county of Tulare for trial.

The defendant, the Buena Vista Fruit and Vineyard Company, is a corporation organized June 6,1891, under and pursuant to the laws of the state of California, and having its principal place of business at Tulare City in the county of Tulare, state of California.

The defendants, John Tuohy, D. W. Madden, E. De Witt, P. F. Wood, N. A. Hummel, J. F. Boiler, and R. B. Bohannon, were directors of the corporation. The other defendants, with perhaps one or two exceptions, were stockholders in the corporation.

The prayer of the complaint asks the court to establish fraudulent dealings on the part of the directors; to set aside and cancel two certain mortgages given by the corporation to John Tuohy, who was president of said corporation, upon land in the county of Tulare, upon the ground that they are fraudulent; for a decree fixing the indebtedness of the corporation to defendants Tuohy, Cox, Wood, and De Witt; to account with and settle the rights of the corporation to and with said last-named defendants, the rights of the creditors and stockholders of the corporation.

The facts may be briefly stated thus: Defendant Tuohy was the owner of 720 acres of land and a few shares in the capital stock of two water companies, all worth $36,0Q0, and situated in the county of Tulare. Tuohy had agreed to sell the property to defendants Cox, Wood, and De Witt, on or before September 1, 1896, for the sum of $36,000, and interest at 8 per cent per annum.

Thereupon the said Cox, Wood, and De Witt represented themselves to be the owners of the property, and by various devices, with the knowledge and consent of [335], Tuohy, organized the corporation defendant, and agreed to sell and convey to it the property for $72,000, or double its value.

Tuohy, Wood, and De Witt became directors in the company, and on the sixteenth day of September, 1891, Tuohy conveyed the property to the corporation for $72,000, receiving in payment $10,000 in cash, and two notes secured by mortgage on the land; one for $36,000, and the other for $26,000.

Plaintiff avers that all this consideration in excess of $36,000 was fraudulent, and the result of the fraudulent acts of Tuohy, Cox, Wood, and De Witt, and many of the devices to perpetrate the fraud are set out.

Bailey v. Cox

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief