Eddy v. Houghton , 6 Cal. App. 85 ( 1907 )

Appeal from an order denying motion for change of venue.

The action was begun in Los Angeles county, and the application for change of place of trial was made by the defendants F. T. Houghton and Merced Security Savings Bank. It was based upon the grounds that the cause of action related to a controversy over real property situated in the county of Mariposa, and the real defendant and party in interest (Houghton) was a resident of Mariposa county. Two demands for a change appear in the record, one by the defendant Merced Security Savings Bank, and the other by the defendant Houghton, and the latter files an affidavit setting out that he is the only real party in interest as defendant in said action, and that all the other persons named as defendants are mere nominal parties. The defendant Tennessee-California Gold Mining Company, which joins the plaintiff in resisting the motion, files a verified answer presenting its interest in the subject matter of the action brought by plaintiff.

In determining the cause of action to be tried neither the affidavit nor the answer can be looked to. The effect of the complaint in this respect cannot be varied by either. Only as affecting the question of residence will they be considered. (Quint v. Dimond, 125 Cal. 572, [67 P. 1034].)

The only cause of action attempted to be stated in favor of plaintiff is one against the defendants Merced Security Savings Bank and Houghton, and is to compel the bank to deliver to plaintiff certain shares of stock of the defendant corporation, Tennessee-California Gold Mining Company, in which Houghton is interested.

The relations of the parties to the transactions involved in the action, as disclosed by the complaint, are: The plaintiff and defendant Guenther were pledgors of the shares of stock, the bank, the pledge-holder and the defendant Houghton, the pledgee. There is no real property involved in the said cause of action attempted to be stated in favor of plaintiff. The extensive allegations of probative facts anticipating the bank's reason for refusing to deliver the stock constitute no part of the statement of a cause of action which the court can consider on this motion.

Neither of the corporation defendants has an absolute right under the constitutional provision (sec. 16, art. XII) to have the action removed on account of its place of residence. (Trezevant v. Strong Co., 102 Cal. 49, [36 P. 395].) The principal place of business of the Tennessee-California Gold Mining Company is stated in the complaint to be at Los Angeles, California, but the complaint states no cause of action in favor of plaintiff to which that corporation is a proper or necessary defendant. The defendant Guenther passed out of consideration by the stipulation of the parties in open court. This leaves but the two moving defendants to be considered. The bank is a resident of Merced county, but its demand for change is to Mariposa county, and may be considered as a consent to the granting of the motion of the defendant Houghton, whose demand on the ground of his place of residence is for a change to Mariposa county. The mining company being neither a necessary nor proper party to the determination of the cause of action therein stated in favor of plaintiff, the defendant Houghton's motion should have been granted, if there was a sufficient showing on the merits. (McKenzie v. Barling,101 Cal. 459, [36 P. 8].) We think there was.

The contention of respondent that the affidavit of merits made by the moving party is insufficient cannot be sustained. The affidavit is substantially the same as the one held good inMcSherry v. Pennsylvania Co., 97 Cal. 642, [32 P. 711], except that in the case cited the affiant avers that he "has fully and fairly stated the facts of the case" to his counsel, while in the case at bar the statement is that he "has fully and fairly stated the case" to his counsel. There is no essential difference between these statements. (Rathgeb v.Tiscornia, 66 Cal. 96, [4 P. 987].)

The order appealed from is reversed.

Allen, P. J., and Shaw, J., concurred.