Aisbett v. Paradise Mountain Mining & Milling Co.

This is an appeal from an order denying a motion made by defendants for a change of the place of trial

The action (one other than those described in sections 392, 393, and 394 of the Code of Civil Procedure) is brought by stockholders of the Paradise Mountain Mining and Milling Company, a corporation, against said corporation and members of its board of directors, joined therewith as defendants, to have declared null and void certain proceedings wherein an assessment was levied upon the corporate stock of the corporation, and to enjoin a sale of plaintiffs’ stock for failure to pay said assessment, as well as for other relief.

Section 397 of the Code of Civil Procedure provides that the court may, on motion, change the place of trial when the county designated in the complaint is not the proper county. The proper county for the trial, as appears from 'section 395 of the Code of Civil Procedure is “the county in which the defendants, or some of them, reside at the commencement of the action.” If the county wherein the action is brought is not the proper county, “the action may, notwithstanding, be tried therein,” (Code Civ. Proc. sec. 396), unless the defendants avail themselves of their right to secure a removal in the mode prescribed by the statute. All of the defendants herein, other than Y. P. Preciado, joined in a written demand for the removal of the place of trial to San Bernardino County and appellants concede that defendants other than Preciado were necessary parties. The ground therefor, as stated in the notice of motion, was that they were all residents of said county. Where the complaint and record, as here, are silent upon the subject, the presumption is that the defendants are residents of the county wherein the action is commenced, and the burden of proof is cast upon them to show that they were at the commencement of the. action residents of another .county or counties of the state than that wherein the suit is brought, and to which they ask that the place of trial be removed. (Hearne v. De Young, 111 Cal. 373 , [ 43 Pac. 1108 ]; Greenleaf v. Jacks, 133 Cal 506 , [ 65 Pac. 1039 ]; Greenleaf v. Jacks, 135 Cal. 154 , [ 67 Pac. 17 ] ; Quint v. Dimond, 135 Cal. 572 , [ 67 Pac. 1034 ] ; County of Modoc v. Madden, 136 Cal. 134 , [ 68 Pac. 491 ].) While all the necessary parties defendant joined in the demand for the change, they offered no evidence whatever touching the residence of any

Appellants insist, however, they are entitled to a change of venue by reason of the fact that the resident defendants joined the nonresident defendant in the written demand for the removal. In support of which they cite Hannon v. Nuevo Land Co., 14 Cal. App. 700 , [ 112 Pac. 1103 ], decided by this court, in which the following language was used in the opinion: “Where it appears that both resident and nonresident defendants are necessary parties, an order granting a change of place of trial will not be made upon demand of the nonresident defendant, unless the former joins in the demand.” In making this statement the court followed McKenzie v. Barling, 101 Cal. 460 , [ 36 Pac. 8 ], also cited by appellant, where it is said: “And it has been settled that where, in a case coming under section 395 of the code, any of the defendants reside in the county in which the suit is brought, a motion to change the place of trial to a county in which others of the defendants reside will not be granted unless all of the defendants join in the motion,” in support of which the court there cited: Pieper v. Centinela Land Co., 56 Cal. 173 ; Remington S. M. Co. v. Cole, 62 Cal. 311 ; Fickens v. Jones, Parker’s Cal. Dig., p. 83, together with several cases from the courts of the state of New York. Both statements are dicta. In neither ease was the statement made pertinent nor applicable to the facts under consideration. Nor in either case does it constitute a correct statement of the law applicable to the right of removal in cases where there are defendants, some of whom are residents of the county wherein the action is brought, and others nonresidents thereof but residing in the county of the state to which all join in a

The order is affirmed.

Allen, P. J., and James, J., concurred.