62 Cal. 311 | Cal. | 1882
Lead Opinion
If the complaint counted alone on the bond executed by Joseph H. and George N. Cole, there was no cause of action stated against Jewell or Showers, and they were improperly made parties. In that view, the Coles were entitled to a change of the place of trial, and their motion in that behalf made in 1877, and denied August 30,1878, ought to have been granted, notwithstanding Jewell and Showers - then remained parties of record. From the order made refusing a change of venue the parties aggrieved were entitled to appeal, and that was their remedy. If, on the other hand, the complaint contained a cause of action against Jewell and Showers, the order made August 30, 1878, was rightly made, for they did not join in the motion for a change of the place of trial, but on the contrary,-fileda demurrer, without objection,on that ground. If there was a cause of action stated against them, they had as much right to have it tried in the City and County of San Francisco, where the action was commenced, as their co-defendants had to have it tried in the county of their residence. In either event, we do not perceive how the subsequent dismissal of the action as against Jewell and Showers could operate to confer on the other defendants the right contended for by them. That right is to he determined by the condition of things existing at the time the parties claiming it first appeared in the action.
Order affirmed.
Dissenting Opinion
I dissent. This is one of the actions which the Code declares “ must he tried in the county in which the defendants or some of them reside at the commencement of the action.” (C. C. P. 895.) Before the action was dismissed as to any of the defendants, some of them resided in San Francisco and some of them in San Joaquin County. After the dismissal of the action as to some of them, the remaining ones resided in San Joaquin. They had a right to have the action tried in that county, and if they did not waive that right, the Court erred in denying their application to have the place of trial changed from San Francisco to San Joaquin. The right might have been waived by appearing and answering or demurring without filing an affidavit of merits and demanding “ in writing that the trial be had in the proper county.” (Id. 396.)
The appellants, on their first appearance, as the sole defendants in the action, and at the time of filing their answer, did file an affidavit of merits and a demand “in writing that the trial be had in the proper county.” Before that, either San Francisco or San Joaquin was the proper county. Now it could never have been the intention of the Legislature that a plaintiff, by improperly joining persons who resided in the same county with himself, against whom his complaint showed that he had no cause of action, with persons residing in another county against whom he did allege a cause of action as defendants, could defeat the right of the real defendants to have the action tried in the proper county, particularly when, as in this case, the action is dismissed as to the defendants residing in the same county with himself before the filing of the answer. Whenever the attention of the Legislature is manifest it must prevail in the construction of statutes. The object of the Legislature was to prevent the trial of actions in counties other than those in which the defendants resided, unless they waived that right. I do not think that the Courts should sanction a palpable evasion of such a statute.
Myrick, J., concurred with Mr, Justice Sharpstein.