Hirschfeld v. Sevier — 77 Cal. 448

Majority

p. 448

[No. 11555.

In Bank.

December 8, 1888.]

B. HIRSCHFELD, Respondent, v. E. SEVIER et al., Appellants.

Headnote

Place of Trial—Defendants Residing in Different Counties—Refusal to Change.— Where one of the defendants resides in the county in which the action is commenced, the action may properly be tried there, and an order refusing to change the place of trial to the county in which other offthe defendants reside will not be disturbed.

Appeal from an order of the Superior Court of Humboldt County refusing to change the place of trial.

The action was brought to recover damages for a malicious prosecution. The further facts are stated in the opinion of the court.

Naphtaly, Freidenrich & Ackerman, for Appellants.

H. H. Lowenthal, for Respondent.

This is an appeal from an order denying a motion to have the place of trial changed from Humboldt County to San Francisco. The action was commenced in Humboldt County against sixteen defendants, twelve of whom were residents of the city and county of San Francisco, two of New York City, and one of Humboldt County. Four of those residing in San Francisco appeared in the action by filing a demurrer to the complaint, and at the same time demanded that the place of trial be changed from Humboldt to San Francisco. Afterward, and before the denial of the motion to change the place of trial, Sevier, the only defendant

p. 449

residing in Humboldt County, appeared by filing a demurrer to the complaint, and at the same time filed a consent in writing that the place of trial be changed as demanded by four of the defendants. It appears by the record that five, and five only, of the defendants appeared in the action. It does not appear that a summons was served on any of the defendants.

Upon the foregoing facts, were the appellants entitled to have the place of trial changed as by them demanded?

This action belongs to the class which must be tried in the county in which the defendants, or some of them, reside at the commencement of the action. (Code Civ. Rroc., sec. 395.) In this case, one of the defendants (Sevier) resided in the county in which the action was commenced, viz., in Humboldt County. Therefore, the action might be tried in that county. And since it might, we cannot disturb the order denying the motion to change the place of trial.

Order affirmed.

Searls, C. J., McFarland, J., and Thornton, J.. concurred.