Alhambra Shumway Mines, Inc. v. Alhambra Gold Mine Corp.

SCHOTTKY, J. pro tem. Defendant seeks a writ of supersedeas to stay proceedings in this cause pending its appeal from an order of the court below denying its motion for change of venue from El Dorado County to Los Angeles County or Fresno County, which motion was made upon the ground of the convenience of witnesses. (Code Civ. Proc., § 963.) This court issued its order to show cause and its order staying all proceedings in the trial court pending the determination of the application for a writ of supersedeas.

The petition alleges that plaintiff brought an action to cancel a lease under which the petitioning corporation operated certain mining property in El Dorado County; that the trial court denied petitioner’s motion for a change of venue September 7, 1951, without a hearing thereon; that petitioner filed an appeal from said order on September 17, 1951; that despite the pendency of the appeal, a motion to set for trial would be heard October 19, 1951; that the principal issue in the action against the petitioning corporation is whether the stockholders of the plaintiff corporation approved the making of the lease to petitioner’s assignor, and whether or not the plaintiff corporation’s stockholders authorized the' bringing of the suit for cancellation of the lease; that there are approximately 600 stockholders of plaintiff corporation; that petitioner is informed and believes that approximately 12 to 15 of said stockholders control a majority of the stock; that none of said controlling stockholders reside in El Dorado County and most all of said group and of the entire group of stockholders reside in and around Fresno County; that most of said stockholders will have to be brought before any court in which said trial is held, by subpoena, and petitioner is informed and believes that Fresno County is the only county in which the majority of said stockholders and holders of controlling stock can be reached or served by subpoena.

The affidavit of O. H. Griggs filed in support of the motion for change of venue (an exhibit in this proceeding) substantiates the above allegations. It was averred that 249 individually named persons were material witnesses, 13 of whom resided in and around the county of Los Angeles and would testify to the work performed by petitioner, and the remaining 236 resided in Fresno County and would testify that the lease was approved by the majority of plaintiff’s stockholders.

The affidavit in opposition to the motion averred that out of the 236 individuals named in the Griggs affidavit, 78 of the persons did not approve the lease in question, but voted to [121]