The plaintiffs sued the defendants for an
The appellants, who will be referred to as the defendants, assert that they are entitled to have the action tried in Imperial County for either of two reasons: (1) that all of the causes of action alleged in the complаint are local in character; (2) that if one of the causes of action is local in character the plaintiffs, by joining a transitory cause of action, cannot defeat the right of the defendants to have any question of title of real property or of injuries to real property tried in the county where the real propеrty is situated.
The question of the transitory or local character of the causes of action must be determined from the allegations of the complaint on file at the time the motion was made and from the nature of the judgment which might be rendered thereon, assuming the truth of the allegations.
(Sheeley
v.
Jones,
The complaint in form contains a statement of four causes of action. The first is a common count for money had and received in the sum of $550,000. The second in substance alleges that in 1896 Mary E. Greathouse became the owner of 55/100ths interest in three mining claims, the Padre, Madre and Cargo Muchacho, located in what is now Imperial County; that Mary E. Greathouse died in the State of Kentucky in 1906 and that the plаintiffs in time succeeded to all of her interest in these mining properties. In 1896 Kate S. Wright became the owner of the remaining 45/100ths interest in said mining claims. She died in 1938 and her surviving husband as a joint tenant became the owner of that interest. The defendant, Bay H. Fitzgerrell, an attorney, was married to a niece of Kate S. Wright. The defendants Holmes and Nicholson were associates and partners in the mine ventures. They investigated the value of the Padre, Madre, and Cargo Muchacho mines, looked up the owners, and represented to Fitzgerrell that the mines were valuable. It is then alleged
In April, 1935, Fitzgerrell organized a corporation called the Rayfitz Company, had himself elected as president, and his daughter, a girl of college age, as secretary-treasurer. An agreement was then entered into pursuant to which the Great-house heirs; the plaintiffs herеin, transferred to the Rayfitz Company their 55/100ths interest in the mines in exchange for 55 shares of stock. Fitzgerrell conveyed the Wright interest for 45 shares of stock of the company. A lease of said mining properties was then executed by the Rayfitz Company as lessor, and by Holmes and Nicholson as lessees, for a term of five years from August 7, 1935. The complaint contains allegations of details in which the lease is claimed to have been unfair to the lessor. The consideration for the lease is alleged to have been $700 and certain royalties. Holmes, Fitzgerrell acting as his attorney, had himself appointed by the court in California as administrator with the will annexed of the estate of Mary B. Greathоuse. During the term of the lease Holmes, Nicholson and Fitzgerrell caused twenty mining claims to be located in the public domain of the United States contiguous and adjacent to the Padre, Madre, and Cargo Muchacho mines. The cost and expenses of making such locations and acquisitions were paid with funds received from ores recovered from the leased mining properties. It is then alleged that the acquisition of the adjacent mining property was and is necessary to the efficient operation of the leased property, but that all of said adjacent
By the second cause of action the plaintiffs ask for an accounting of their 55/100ths percentage of the moneys received from the operations of all the property by the defendаnts and of the $200,000 damages sustained by reason of the
The third cause of action reincorporates all 46 paragraphs of the first causе of action, with the additional allegations that more than $400,000 was received by the defendants after the rescission of the lease by the plaintiffs, which sum has been retained by the defendants with the exception of a comparatively small amount; that the plaintiffs are entitled to an accounting of all moneys received from operаtions from the date of the rescission to the date of the surrender of the leased properties and to a judgment not only for said receipts but for all receipts from the date of the making of the lease to the date of the surrender thereof.
The fourth cause of action realleges by reference all the numbered paragraphs of the second cause of action and in addition realleges the confidential relationships existing as grounds for the allegation that the location and acquisition of the adjacent twenty mining claims by the defendants for their own benefit was a constructive fraud upon the plaintiffs ; that the defendants hold said mining claims as constructive trustees for the plaintiffs; that defendants have removed valuable ores from said mines without any accounting thereof to the plaintiffs and that they will so continue to remove ores from said mines unless enjoined from so doing or unless a receiver he appointed. In this cause of action the plaintiffs expressly reallege the loss in possible ore production to the value of $200,000 caused by the cave-in of the Madre and Padre mines as the basis for allegations of necessity for the appointment of a receiver for the mines, including the adjacent twenty mining properties. This cause of action also contains the formal allegation that the defendants claim some right, title and interest in the twenty mining claims which is adverse to the plaintiffs, but that all such claims, except those of the Wright and Greathouse estate interests (their representatives having been made defendants) are invalid.
It is apparent that the granting of the major relief sought by the plaintiffs will depend upon proof of facts constituting such a fraud as to entitlе them to any relief pursuant to the alleged second cause of action. Without proof of sufficient facts pursuant to that cause of action, the plaintiffs will not have shown any cause for the major relief asked
Therefore, even if we ignоre the inclusion of the common count, it cannot be said that all of the causes of action are local in character so as to require the application of section 392 of the Code of Civil Procedure in accord with the first contention of the defendants. In other words, if the action had been brought in Imperial County, the defеndants would have been entitled to have it removed to Los Angeles County. (Section 395, Code of Civil Procedure;
Smith
v.
Smith, supra; Sheeley
v.
Jones, supra; Howe
v.
Tucker,
In the present case it is obvious that the action turns principally on the personal obligation, as distinct from the title, and that judgment for any mining properties not now owned by the plaintiffs would follow if at all, merely as an incident of the judgment establishing the personаl obligation.
The foregoing answers the first contention of the defendants that the action is entirely local in character. It also answers in part their second contention that if any alleged cause of action is local in character, the plaintiffs cannot deprive the defendants of a trial in the county where the propеrty is situated.
In cases where the action has been commenced in the county of the location of the real property and the defendant moved for a change of venue to the county of his residence, it has been declared to be the policy of the law jealously to guard the right of the defendant to have a trial in the сounty where he resides and that the allegations of a complaint will be strictly construed against the pleader to ascertain whether he has joined a personal or transitory cause so as to entitle the defendant to a trial of the action in the county of his residence. (Section 395, Code of Civil Procedure;
Ah Fong
v.
Sternes,
The pleader is required to frame his complaint to show clearly that he is entitled to retain the trial of the action in the county in which it was commenced. (Sheeley v. Jones, supra.) What we have said is sufficient to demonstrate that the complaint herein clearly shows that the plaintiff is entitled to retain the trial of the action in Los Angeles County.
The defendants’ attempt to find support in the case of
Brown Materials Co.
v. Angus, 20 Cal. App. (2d) 32 [
The defendants also refer to inconveniences which they say are sure tо arise in the trial of the action in Los Angeles County, in respect to introduction of evidence, books
The orders are affirmed.
Gibson, C. J., Curtis, J., Edmonds, J., Houser, J., Carter, J., and Traynor, J., concurred.