O'Brien v. O'Brien

The purpose of this appeal is to review the order of the trial court denying defendants’ motion for a change of the place of trial.

It is alleged that in his lifetime plaintiff’s testate, Joseph A. 0 ’Brien, and defendants, Charles F. O ’Brien and William T. Garrett, were partners, under the firm name of 0 ’Brien & Garrett, doing business in the city of San Francisco as agents for the sale of land located in the republic of Mexico; that on December 28, 1908, the said Joseph died testate, naming defendant, his brother Charles, as executor of his last will; that he duly qualified as such executor, but, because of certain neglect of duty, he was removed from his office as executor, and plaintiff, who was sole devisee and widow of Joseph, was appointed special administratrix of the estate of deceased; that Charles, while such executor, had failed to account to said estate with respect to Joseph’s partnership interest in said firm and had failed to mention it in his inventory of said estate; that neither of defendants, as surviving partners, ever accounted to said executor of said estate and neither has accounted to plaintiff, although she has demanded of them that such accounting be made since her appointment as special administratrix of said estate; that ever since the death of said Joseph the “defendants continued in the possession of said partnership and partnership property and undertook the settlement of said partnership business.” The complaint then sets forth with some particularity the nature, extent and value of the business transacted, the profits of which amounted, as she avers, to over $25,000 and that there remains due to her testate, as a member of said firm, a large amount of money, the exact amount she is and has been unable to ascertain, “because of the incomplete condition of the accounts of said firm and of the failure and refusal of defendant, Charles F. O’Brien and of said William T. Garrett, to furnish to plaintiff information with reference to the accounts of said partners, with said firm and as to the amounts to which the estate of plaintiff’s husband, Joseph A. O’Brien, is entitled, as the share of said Joseph A. O’Brien in the net profits of said business, as is hereinafter more particularly set forth; that said defendants, as surviving partners of the partnership of O’Brien & Garrett, ever since the death of

An accounting is prayed for of all the dealings and transactions of the said copartnership and, among other things, that

It seems to us too plain to require the citation of authorities that the action is for an accounting of the partnership business among the members of a copartnership, presumably dissolved by the death of one of the partners, and that enough facts are sufficiently averred to show that both Charles F. O ’Brien and William T. Garrett are necessary parties.

Appellant contends that the complaint shows on its face that defendant Garrett is united in interest with the plaintiff and, if made a party at all, should have been made a co-plaintiff or, if having refused his consent to be joined as a plaintiff, he should then and then only have been made a defendant, as provided in section 382 of the Code of Civil Procedure, and that he has been made a defendant for the purpose of enabling plaintiff to name the place of trial and prevent defendants from causing the place of trial to be changed to the place of residence of defendant Charles F. O’Brien. Furthermore, it is claimed that Garrett is only a nominal defendant. Defendant Garrett joined in the demand for a change of venue and in the general demurrer to the complaint, and he made an affidavit in which he stated that “affiant is not in possession of the property or assets of said alleged copartnership, is a nominal party only to said action, and has no substantial interest in the defense thereof.” He also says: “that affiant has a good and substantial defense on the merits to said action and to the whole of plaintiff’s demand therein alleged.”

The fact that Garrett joined in the demand did not affect plaintiff’s right to have the cause tried at his place of residence. (Hearne v. De Young, 111 Cal. 373 , [ 43 Pac. 1108 ]; Holman v. Logan, 148 Cal. 58 , [ 82 Pac. 848 ].)

There are some averments of the complaint showing that defendant O’Brien is the party chiefly delinquent, but there are averments showing also that defendant Garrett has been connected with defendant O’Brien in the management and control of the business since the death of plaintiff’s testate and is withholding from plaintiff the information she seeks, and in some degree at least is responsible for the failure to

Such being our view of the nature of the action and of the parties necessary thereto, the correctness of the order denying the motion to change the place of trial from San Francisco to Los Angeles is easily disposed of.

Defendant Charles F. O’Brien deposed that he was at the commencement of the action a resident of Los Angeles and that his codefendant was then a resident of San Francisco. It has been decided by the supreme court that, under section 395 of the Code of Civil Procedure, the plaintiff has the right to have the cause tried in the county where either of the defendants resides. (Hearne v. De Young, 111 Cal. 373 , [ 43 Pac. 1108 ]; Greenleaf v. Jack, 133 Cal. 506 , [ 65 Pac. 1039 ]; Greenleaf v. Jack, 135 Cal. 154 , [ 67 Pac. 717 ]; Helman v. Logan, 148 Cal. 58 , [ 82 Pac. 848 ].)

In the ease of the same plaintiff as here (versus Charles F. O’Brien, No. 847, recently before this court, ante, p. 103, [ 116 Pac. 692 ], the order denying the motion to change the venue was reversed on the ground that the defendant, without substantial conflict, showed his residence to be in Los Angeles at the commencement of the suit. The evidence on the issue was not materially different from that submitted on the motion in the present case. But in that case Charles F. O ’Brien was the sole defendant and the partnership alleged was that of Charles F. O ’Brien & Co., composed of Thomas A. O ’Brien and Charles F. O’Brien, engaged in the business of selling lands located in the neighborhood of San Francisco. Here

The order is affirmed.

Hart, J., and Burnett, J., concurred.