Ott v. Gotfried

MOORE, P. J. Petitioner Gotfried has asked for a writ of supersedeas. He is the defendant in an action on file in the Superior Court of Los Angeles County where he presented his motion for a change of place of trial. Said motion was denied notwithstanding that it was based upon the convenience of witnesses. From the order denying said motion said petitioner took his appeal to this court where the matter now rests. From the affidavits before us, we glean that petitioner filed a cross-complaint sounding in rescission.

On February 9, 1940, plaintiff moved to set the ease for an early trial. The trial date was fixed for April 26, 1940. Thereafter the court made an order continuing said date of trial to May 22, 1940. Petitioner filed his application herein on May 1st, for a writ of supersedeas on the ground that “petitioner herein is entitled to have his appeal from said order determined prior to the trial of said action, and that the respondent herein will not nor can she be damaged by the delay of said trial until such appeal can be so determined". Petitioner urges on behalf of his petition for £ writ that no detriment can be suffered by the respondent and that to force petitioner to a trial in Los Angeles County would deprive petitioner of his right to have the case tried without the actual presence in court of his witnesses who reside in Imperial County. He further contends that for the land, -which is the subject of the cross-complaint, to lie idle pending the final determination of the litigation would be of advantage to the land.

We are not impressed with petitioner’s contention that the land would profit by lying idle for a year or more. Land represents capital investment and if it should be determined that respondent must take back the land either by a judgment of rescission or by reason of purchase under execution, respondent would be entitled to the benefits of its continuous cultivation.

Man;' words have been written in the petition and in the answer relative to negotiations which have taken place between the parties with reference to the disposition of the land pending a final determination. We make no observation [399]relative to the merits of said negotiations. Our sole concern is the advisability of suspending the trial of said action pending the outcome of said appeal from said order refusing to change the place of trial. Petitioner having purchased said land in April, 1938, remained in possession until June, 1939. During the interim a number of letters passed from the petitioner to respondent relative to the payments that were due upon the purchase price, in none of which did petitioner make mention of any fraud which apparently it is alleged to have been committed upon him by his purchase of the land. In a letter to respondent dated May 3, 1939, petitioner requested respondent to ‘figure out” the interest due on the notes which he would check, upon his bookkeeper’s return and “will mail you a check for the interest and payment on the principal”.