Smith v. Smith

VANCLIEF, C. This is an appeal from an order denying defendant’s motion to change the venue from Tuolumne county, where the action was commenced, to the county of Merced, where the defendant resided at the time the action was commenced, to wit, July 20, 1892. A former action by the same plaintiffs against the same defendant for the same and additional relief, and founded on the same and an additional cause of action, was commenced in Tuolumne county on July 20, 1891, in which defendant’s motion to change the venue of that action to the county of Merced was denied, and upon appeal from the order denying the motion this court reversed the order, and directed the court below to grant the change (Smith v. Smith, 88 Cal. 572, 26 Pac. 356); but before the change of venue was granted by the lower court the plaintiffs dismissed the action, and thereafter commenced the action in which was made the order from which the present appeal was taken.

It is contended by appellant that substantially the same grounds for a change of venue appear to exist in this ease as in the former, and that upon the authority of the decision of this court in the former case the order denying a change of venue in this case should be reversed. The substance of the complaint in the former action is stated in the opinion of the court on the appeal from the order in that action (88 Cal. 573, 26 Pac. 356), whereby it appears that that complaint stated both a local and a transitory cause of action—a cause of action to compel the defendant to convey to plaintiffs certain lands situate partly in Tuolumne county and partly in the county of Merced, and a cause of action to compel the defendant to account for money and other personal property alleged to have been received by him as partnership property of a firm composed of himself and one D. G. Smith, deceased, under the latter of whom the plaintiffs claimed an interest in the partnership property by inheritance. It was held on that [862]appeal that, inasmuch as the complaint stated a transitory as well as a local cause of action, the defendant was entitled to a change of venue to the county of Merced, in which he resided, the court saying: “The plaintiff cannot, by uniting in his complaint matters which form the subject of a personal action with matters which form the subject of a local action, compel the defendant to have both those matters tried in a county other than that in which he resides. It is only when real estate alone is the subject matter of the action that the provisions of section 392 of the Code of Civil Procedure can be invoked against a defendant who resides in a county different from that in which the land is situated.” The respondents claim that real estate alone is the subject matter of this subsequent action, from the order in which this appeal was taken; that the facts constituting a personal or transitory cause of action in the complaint considered on the former appeal are entirely absent from the complaint involved in this appeal. The substance of the complaint in this action is that on July 29, 1876, D. G. Smith, under whom plaintiffs claim by inheritance, was the owner of several thousand acres of land, of the value of $200,000, situated partly in each of the counties of Tuolumne, Merced and San Luis Obispo, and was then indebted to defendant in the sum of $31,000, and to other persons in the sum of $33,000; that for the sole purpose of securing the payment of such indebtedness he then conveyed all said lands by deeds absolute on their face to the defendant, under a contemporaneous agreement with defendant that the deeds should be considered only mortgages; that defendant should take possession of the mortgaged property, and manage the same, and pay all the indebtedness to secure which the deeds were executed, and when all such indebtedness should be paid the defendant should reconvey to him (D. G. Smith) all said mortgaged real property; that all said deeds were made at the same time and as one transaction; that no other consideration passed between the parties than said agreement; that D. G. Smith died intestate February 2, 1883, and all the debts of his estate, including the debts of decedent to defendant and others to secure which said deeds were executed, have been fully paid and discharged; that ever since the twenty-ninth day of July, 1876, the defendant has had, and still has, the exclusive possession of said mortgaged lands, and during