Brady v. Times-Mirror Co.
Before: Harrison
Synopsis
Action Against Corporation—Libel — Place of Trial—Parties— Waiver of Right.—Under section 16 of article XII of the constitution an action against a corporation for the publication of a libel against the plaintiff in a newspaper circulated in the county of the plaintiff’s residence, but published by theT corporation in the place in which its principal place of business is located, may be brought and tried in the county of the plaintiff's residence if the corporation is sued alone; but by including in the action other defendants, whose residence is outside of the county in which the action is brought, the plaintiff waives the right given by the constitution, and the motion of the defendants for a change of the place of trial must be determined by the provisions of the statute.
Id.—Change of Place of Trial—Amendment of Pleading—Rights of Defendants.—The defendants have a right to have their motion for a change of venue determined upon the pleadings as they stand at the time of the motion, and it is the duty of the court to hear and determine the motion for change of venue before taking any other judicial action in the case, and it cannot, after the motion is made, defeat it by allowing an amendment of the complaint striking out other defendants who were joined as such at the time of the making of the motion.
Id.—Suspension of Power of Court.—A motion for the change of the place of trial intercepts all judicial action in the case, and suspends the power of the court to act upon any other question, until the motion has been determined.
Dismissal of Action—Judgment of Dismissal—Pendency of Action.— An action may be dismissed by the plaintiff upon the payment of costs by entry in the clerk’s register; but, until a judgment of dismissal is entered, the action is still pending against the defendant.
Harrison, J. Appeal from an order denying a motion to change the place of trial.
The plaintiff commenced this action in the county of San Diego to recover damages from the defendants for the publication of a libel against her in the Los Angeles Times, a newspaper which was circulated in the county of San Diego. The Times-Mirror Company is a corporation having its principal place of business in the county of Los Angeles, and is the proprietor and publisher of the newspaper, and the defendant Otis is the chief editor and general manager thereof, and also resides in the county of Los Angeles. The summons in the action was served on these defendants on the 20th of July, 1893, but on the 8th of August, before any appearance by them, the plaintiff filed an amended complaint. August 18th the defendants demurred to the amended complaint, and at the same time filed an affidavit of merits, and made demand in writing for a change of the place of trial to the county of Los Angeles. After the motion had been argued, and while it was under consideration, the plaintiff moved the court for leave to amend her complaint by dismissing the said action against the defendants Goodwin and Otis, and the court, after hearing counsel for defendants in opposition thereto, granted the motion, and the amendment was entered in the minutes of the court. Thereupon the court denied the motion of the defendants to change the place of trial. From this order they have appealed.
[58]Section 395 of the Code of Civil Procedure gives to the defendant, in any personal action other than those enumerated in the previous sections, the right to have the action tried in the county of his residence, and the residence of a corporation is the county in which its principal place of business is located. (Cohn v. Central Pac. R. R. Co., 71 Cal. 488; McSherry v. Pennsylvania etc. Min. Co., 97 Cal. 643.) Section 16 of article XII of the constitution provides that “A corporation or association may be sued in the county where the contract is made, or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases.” Under the provisions of this section, if the action had been brought against the Times-Mirror Company alone, the plaintiff’s right to have the action tried in San Diego would be undoubted (Lewis v. South Pac. Coast R. R. Co., 66 Cal. 209); but by including in the action other defendants, whose residence is outside of the county of San Diego, she waived the right given by this provision of the constitution, and the motion of the defendants must be determined by the provisions of the statute. The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception. Section 392 of the Code of Civil Procedure provides that an action to recover a penalty imposed by statute shall be tried in the county where the cause of action arose; but it was held in Ah Fong v. Sternes, 79 Cal. 30, that if in such an action the complaint is so ambiguous that it might be held to include a claim for other damages, or as stating another cause of action, the defendant is entitled to have the place of trial changed to the county of his residence, the court saying: “It is the plaintiff's own doing if the complaint be so drawn. He cannot deprive the defendant of his right to a change of
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