Golden Cross Mining & Milling Co. v. Spiers

California Supreme Court Dec 9, 1896 No. L. A. No. 271Published

Before: Harrison

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Holding. The court held that an action to remove trustees and for an accounting is a personal action, not a local action, and therefore must be tried in the county where the defendants reside rather than where the trust property is located.

Issues

Whether an action to remove trustees and for an accounting is a local action that must be tried where the trust property is situated.
Whether the defendants have a right to have the action tried in the county of their residence under Section 395 of the Code of Civil Procedure.

Disposition. reversed

Quotations verified verbatim against the opinion

“An action to remove a defendant from his position as trustee is personal, and one in which he has the right to have the cause tried in the county of his residence, as is any other personal action.”

“The present action does not fall within either of the classes enumerated in section 392, but is eminently a personal action, in which the judgment sought is purely one in personam.”

Synopsis

Personal Action — Removal of Trustees of Mining Property — Injunction—Accounting—Damages—Place of Trial.—An action to remove trustees of mining property, to whom it was conveyed, with authority to work it, and pay the creditors of the grantor, and to sell it under certain contingencies, for their alleged inefficiency and mismanagement, and to enjoin a threatened sale of the property by them, and for an accounting of their trust, and for the recovery of damages for violation of the trust, and for the appointment of other trustees in their stead, is not a real, but a personal, action, which is triable in the county of the residence of the defendants; and the fact that the trust property is situated elsewhere cannot deprive the defendants of their right to the place of trial.

Harrison, J. The plaintiff executed to the defendants, January 4, 1896, a conveyance of certain real and personal property, consisting of mining ground, with the materials and implements for working the same, situated in the county of San Diego, in trust as security for certain' indebtedness, and with authority to develop and work the mines, and, out of their proceeds, after paying the expenses of working and managing the same, to pay the creditors of the plaintiff in proportion to their respective claims. It was also provided in the instrument of conveyance that if, after a fair trial and bona fide effort, it should, in the opinion of the defendants, become impracticable to operate said mining property according to the terms of the trust, except at a permanent loss, they might so declare, and thereupon make a peremptory sale of the same at public auction, and apply the proceeds in a certain manner specified in the instrument. The defendants entered into possession of the property, and, after working and developing the same for more than three months, on April 22, 1896, declared that it was impracticable to operate it according to the terms of the trust, except at a permanent loss, and thereupon advertised it for sale, in accordance with the provisions therefor in the instrument under which it had been conveyed to them. The plaintiff thereupon commenced the present action against them in the superior court of the county of San Diego, alleging their inefficiency and mismanagement in operating the mining property; that, by reason of their extravagance and waste, great and unnecessary expense had been created by them during their management,- and that the property itself had deteriorated in value; that the property is valuable, and, by judicious management, can be made to yield sufficient returns to pay all the indebtedness for which it was given as security; that the defendants have not given the property a fair trial, or made a bona fide effort to operate it profitably; and that the sale intended by them would be arbitrary and in violation of their [250]trust, and that its announcement has itself had the effect to injure the value of the property; and that, by reason of their misconduct, the plaintiff has been damaged in the sum of one hundred and fifty thousand dollars. Judgment was prayed that the defendants be enjoined from selling the property, and that an account of their trust be taken, and they be removed from said trust, and new trustees appointed by the court to execute the same, and that the plaintiff have judgment for damages against them in the sum of one hundred and fifty thousand dollars. Of the defendants, four reside in Los Angeles and two in San Francisco, and, at the time of their appearance in the action, upon proper showing therefor, moved the court that the place of trial be changed from the county of San Diego to the county of Los Angeles. The court denied their motion, and from this order the present appeal has been taken.

Golden Cross Mining & Milling Co. v. Spiers

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