23 Cal. 165 | Cal. | 1863
delivered the opinion of the Court—Norton, J. concurring.
This is an action brought in San Joaquin County to recover the possession of a quantity of cord wood, alleged to have been taken from the plaintiff’s possession in Stanislaus County, and then detained in the County of San Joaquin. The defendant recovered judgment, from which the plaintiff appeals.
The plaintiff, after issue joined, moved the Court for a change of venue to Stanislaus County, alleging in his affidavit that his right to the wood depended upon his title and possession of the latid from which the wood was cut, which lay in Stanislaus County, and that the convenience of witnesses, seventeen of whom are stated to be residents of Stanislaus County, required a change of the place of trial to the latter county. He also states good reasons why he commenced the action in San Joaquin County, to wit: the necessity of procuring the immediate possession of the wood before it could be removed beyond his reach to some other part of the State. Ho opposing affidavits appear to have been filed. The Court denied the application, and this is assigned for error. We see no good reason why the plaintiff in an action may not have the place of trial changed, upon a proper showing, equally with the defendant. There is nothing in the statute forbidding it. Sec. 21 of the Practice Act provides that “ The Court may, on motion, change the place of trial in the following cases,” etc. It does not confine this motion to the defendant, but leaves it open for both parties. As a general rule, the action should be commenced in the county where the defendants reside ; but if, after the issues are made up, and each party knows the facts necessary to be proved, the plaintiff should find that the convenience of his witnesses requires that the trial should be had in some other county, where the cause of action arose, and where his witnesses reside, he is certainly as much entitled to a change as the defendant would be under the same circumstances, and he should not be denied that right because he has brought his action in the county where the defendants reside, or
During the trial the plaintiff called a witness, and offered to prove by him that he owned the land upon which the wood in question was cut, and sold the wood to the plaintiff, and jrat the following question to the witness: “ Who was the owner and in possession of the land upon which the wood in question was cut and taken away by the defendants ? ” The defendants objected to the question, because it was inquiring into the title of land, and the plaintiff had made no allegation of such title in his complaint. The Court sustained the objection, and excluded all evidence relating to the title or possession of the land on which the wood was cut. After the plaintiff had closed his testimony, the defendants moved for a non-suit, on the ground that the plaintiff’s title to the wood depended upon the title of his vendors to the land upon which the wood was cut, and no such fact of title was averred in the complaint, or proved. The Court granted the nonsuit, and these rulings of the Court are assigned as error.
The Court erred in excluding the evidence, and in granting the nonsuit on the ground stated. In discussing the rules of pleading this Court say, in the case of Green v. Palmer (15 Cal. 316): “ To illustrate this, let us suppose an ultimate fact, upon the establishment of which the claim or defense depends,' and that the establishment of this fact depends upon the establishment of three or four prior facts, which being established proves this. It is the ultimate fact, and not the prior or probative facts, which should be set forth.” To apply this rule to the present case. The ultimate fact to be established here is the ownership of the wood, when it was taken away by the defendants. The establishment of this fact
The judgment is therefore reversed, and the cause remanded for further proceedings.
