Duffy v. Duffy

California Supreme Court Dec 3, 1894 No. No. 15495Published

Before: Belcher, Fitzgerald, Haven, Haynes, McFarland, Vancliee

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Holding. The court held that an action concerning real estate may be transferred to another county for trial after being properly commenced in the county where the land is situated, and that any potential error in admitting evidence was harmless because the evidence was cumulative and did not affect the outcome.

Issues

Whether a court has jurisdiction to try an action concerning real estate if the trial is transferred to a different county by stipulation.
Whether the trial court erred in admitting certain deposition testimony over the plaintiff's objection.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A plaintiff who fails to make out a case is not prejudiced by any error which does not prevent him from making out a case.”

Synopsis

Appeal from a judgment of tlie Superior Court of the City and County of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion.

These lands are situated in Alameda county. The superior court of the city and county of San Francisco had no jurisdiction to try the case. Nor could consent give such jurisdiction. (Sloss v. DeToro, 77 Cal. 129; Franklin v. Dutton, 79 Cal. 605; Fritts v. Camp, 94 Cal. 393; Pennie v. Visher, 94 Cal. 323; Baker v. Fireman’s Fund Ins. Co., 73 Cal. 182; Watkins v. Degener, 63 Cal. 500; Grangers’ Bank v. Superior Court, 101 Cal. 198.) Respondent should be compelled to pay the costs of printing tbe useless and redundant matter which, he caused to be printed in the statement. (McMinnv. Whe-lan, 27 Cal. 320, 321; Barrett v. Tewksbury, 15 Cal. 357; Harper v. Minor, 27 Cal. 109, 115.]

The superior court of the city and county of San Francisco had jurisdiction to try the case, as it was expressly stipulated that the action might be tried in that county. (Hancock v. Burton, 61 Cal. 70; Code Civ. Proc., secs. 392, 397.) Parties are estopped from raising an objection to their stipulation or denying its effect. (Dreyfous v. Adams, 48 Cal. 131; Bonner v. Palmer, 51 Cal. 629; Grady v. Porter, 53 Cal. 680; Boyd v. Burrel, 60 Cal. 318; Smith v. Whittier, 95 Cal. 279.) The burden of showing the immateriality of the alleged errors rested upon defendant. He was, therefore, entitled to demand that sufficient of the testimony be included in the statement to show that the evidence complained of: 1. Was not properly admitted; and 2. If improperly admitted, it could not possibly have injured plaintiff. (Storch v. McCain, 85 Cal. 308; In re Spencer, 96 Cal. 449; McPhail v. Buell, 87 Cal. 116; Enright v. San Francisco etc. R. R. Co., 33 Cal. 230.)

Haynes, C. This action was brought by Bridget Duffy, as executrix of James A. Duffy, against Michael Duffy, for the purpose of compelling the defendant to convey to her, as such executrix, certain real estate situate in the city of Oakland, Alameda county, which, it is alleged, was bought by the said James in September, 1888, with his own money, but which was conveyed to the defendant, wffio it is alleged took such conveyance in trust for James, and that he still holds the same in trust.

The answer alleged that the whole of the purchase money paid therefor was the moneys of the defendant, and denied that the estate had any interest in the real estate, or that defendant held it in trust.

[604]The cause was tried by the court, and findings and judgment were for defendant, and this appeal is from the judgment and an order denying plaintiff’s motion for a new trial.

No question is made as to the sufficiency of the findings to support the judgment, nor as to the sufficiency of the evidence to support the findings, but it is insisted: I. That the court had no jurisdiction of the subject matter of the action; and 2. That the court erred in admitting certain evidence over plaintiff’s objection, and in refusing her motion to strike out the same evidence.

1. The real estate, the subject of the action, is situate in Alameda county. The action was commenced in that county, but was afterwards transferred to the superior court of the city and county of San Francisco for trial, the order changing the place of trial being based on a stipulation of counsel for the respective parties, the ground therein stated being “that the convenience of witnesses would be promoted by such change.”

This question is conclusively settled by the case of Hancock v. Burton, 61 Cal. 70, where it was said:

“ The constitution (section 5 of article VI) does not provide that the action must be tried, but simply that it must be commenced in the county .in which the land is situated; and we are of the opinion that section 397 of the Code of Civil Procedure, which authorizes the change of the place of trial where the judge of a court in which the action is brought is disqualified to try the case, is not obnoxious to any provision found in the constitution.” (See, also, Warner v. Warner, 100 Cal. 11, 15.) In Urton v. Woolsey, 87 Cal. 38, the action was to foreclose a lien upon lands in Tulare county, and was commenced and proceeded to judgment in Fresno county. Upon appeal the judgment was reversed, and the action dismissed, upon the ground “ that no court has jurisdiction to entertain an action like the one at bar, unless it has been commenced in the county where the land is situated.” In Fritts v. Camp, 94 Cal. 393,

Duffy v. Duffy

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