Blackman v. Sherman

PULLEN, P. J. This is an appeal from an order denying the motion for change of venue to the county of defendant’s residence.

Plaintiff and defendant entered into an agreement in writing wherein plaintiff agreed to sell a particular tract of timber to defendant, the title thereto to remain in plaintiff until the full purchase price therefor had been paid. Defendant agreed to erect a sawmill upon the property and to cut the timber thereon, paying to plaintiff $3 for each 1,000 feet of lumber sold from the property, with a provision for an annual minimum aggregate amount equivalent to 1,500,000 board feet of lumber, regardless of whether such lumber had been cut or sold. It was also agreed that the defendant could, after paying plaintiff no less than $4,500, cancel the agreement. Defendant also agreed to and did execute a chattel mortgage upon the sawmill for $4,500.

Some sixteen months after the execution of this agreement plaintiff served upon defendant, a notice of termination of the contract based upon a failure to pay the minimum aggregate amount required to be paid annually, failure to pay taxes or interest, and failure to pay $3 per thousand for lumber actually sold.

Thereafter a complaint was filed setting up three causes of action. The first count set forth the execution of the contract and the breach, and prayed first, for judgment in the sum of $808.83 for the quantity of timber cut from the lands in question; for $125 for taxes due; for $574.27 for unpaid interest upon the purchase price; for possession of the premises, and costs. The second count was for the foreclosure of the chattel mortgage, and the third count was to quiet the title of plaintiff in the lands.

A motion of defendant to change the place of trial to the county of his residence was denied, and,this appeal was taken.

It is the contention of respondent that the complaint states a cause of action which is essentially local in nature and therefore is triable in the county in which the real property is situated. Appellant claims that where a transitory and a local cause of action are joined in the same complaint the defendant is entitled to have the case tried in the county of his residence. Section 392 of the Code of Civil Procedure provides that actions for the recovery of real property or the determination of an estate or interest therein and for in[22]juries to real property, must be tried in the county where the real property or some part thereof is situated. Section 395 of the Code of Civil Procedure applies to all other sections, with certain immaterial exceptions.