119 Cal. 78 | Cal. | 1897
This action was commenced in the superior court of the county of Fresno, on December 16, 1895. The purpose of the action was to have it adjudged that the plaintiff was the owner and entitled to the possession of an undivided one-third interest in all the property, business, proceeds, and profits
The contention of appellant is, that all of the defendants in an action must join in a motion for a change of the place of trial, and that as the defendants, Wink and Banta, had been served in the county of Fresno, and in due time had appeared and demurred to the complaint without making any motion for a change of the place of trial, they could not thereafter join with the other defendants in any motion asking for such change; and that under the statute neither they nor the other defendants were entitled to the order made, but plaintiff was thereafter entitled, as a matter of right, to have the action tried in the county in which it was commenced.
An action like this “must be tried in the county in which the defendants, or some of them, reside at the commencement of the action; or, if none of the defendants reside in the state, . . . . the same may be tried in any county which the plaintiff may designate in his complaint.” (Code Civ. Proc., sec. 395.)
“If the county in which the action is commenced is not the
As defendants Wink and Banta did not reside in this state, they could not move for a change of venue, but that fact did not deprive the other defendants of the right to have the case tried in the county in which they, or some of them, resided at the commencement of the action. It is only when none of the defendants reside in the state that the action may be tried in any county which the plaintiff may designate in his complaint. It was not necessary for Wink and Banta to join in the demand for a change, but was only necessary that all those who had a right to make the demand should join in doing so. This they did, and the court properly granted the motion.
The order should be affirmed.
Haynes, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed.
Temple, J., Henshaw, J., McFarland, J.