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Garrett v. Garrett

178 Cal. 131 Court Department Two. Decision date 1918-04-15 Docket L. A. No. 4179 English

Delivered by WILBUR, J.

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p. 131
[L. A. No. 4179.
Department Two.
April 15, 1918.]
FLORENCE GARRETT, Respondent, v. DAVID THOMAS GARRETT et al., Appellants; L. M. LEMMON et al., Respondents.

Headnote

Husband and Wife—Action fob Maintenance—Cloud on Title to Property—When Immaterial.—In an action for maintenance, where the complaint shows that the husband has ample property to maintain the wife other than that conveyed to his codefendants, the wife is not injured by and cannot sue to remove the cloud on the husband’s title caused by its conveyance.
Id.—Change of Place of Trial.—Where no cause of action is stated against his co defendants in an action for maintenance, the defendant husband is entitled to have the cause removed for trial to the county of his residence.
APPEAL from an order of the Superior Court of Los Angeles County. Charles Monroe, Judge.
The facts are stated in the opinion of the court.
Meredith, Landis & Chester, for Appellants.
Harry M. Irwin, for Respondents.

This is an appeal from an order denying defendant Garrett’s motion for a change of venue, based upon his residence in Sacramento County. It was denied because two other defendants resided in Los Angeles County. The suit is brought by plaintiff to secure support and maintenance from her husband, defendant Garrett. The complaint alleges that the defendant Garrett recorded a deed of certain real property to his codefendants, but that such deed was1 never delivered and that title did not pass. Plaintiff seeks to remove said cloud upon the record as ancillary to her action for support. Garrett’s codefendants answer and disclaim. The complaint shows that defendant Garrett has ample property to maintain the plaintiff other than that covered by the deed to his codefendants. Therefore plaintiff is not injured by the cloud upon the record title, and cannot sue to remove the same. As no cause of action is stated against the codefendants of Garrett, his motion for a change

p. 132
of venue should have been granted. (Remington Sewing Machine Co. v. Cole, 62 Cal. 311 ; Sayward v. Houghton, 82 Cal. 628 , [ 23 Pac. 120 ]; McKenzie v. Barling; 101 Cal. 459 , 461, [ 36 Pac. 8 ].)

Order reversed.

Melvin, J., and Victor E. Shaw, J., pro tern., concurred.

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