38 P. 43 | Cal. | 1894
This is an appeal from an order denying defendant’s motion to change the venue from Tuolumne county, where the action was commenced, to the county of Merced, where the defendant resided at the time the action was commenced, to wit, July 20, 1892. A former action by the same plaintiffs against the same defendant for the same and additional relief, and founded on the same and an additional cause of action, was commenced in Tuolumne county on July 20, 1891, in which defendant’s motion to change the venue of that action to the county of Merced was denied, and upon appeal from the order denying the motion this court reversed the order, and directed the court below to grant the change (Smith v. Smith, 88 Cal. 572, 26 Pac. 356); but before the change of venue was granted by the lower court the plaintiffs dismissed the action, and thereafter commenced the action in which was made the order from which the present appeal was taken.
It is contended by appellant that substantially the same grounds for a change of venue appear to exist in this ease as in the former, and that upon the authority of the decision of this court in the former case the order denying a change of venue in this case should be reversed. The substance of the complaint in the former action is stated in the opinion of the court on the appeal from the order in that action (88 Cal. 573, 26 Pac. 356), whereby it appears that that complaint stated both a local and a transitory cause of action—a cause of action to compel the defendant to convey to plaintiffs certain lands situate partly in Tuolumne county and partly in the county of Merced, and a cause of action to compel the defendant to account for money and other personal property alleged to have been received by him as partnership property of a firm composed of himself and one D. G. Smith, deceased, under the latter of whom the plaintiffs claimed an interest in the partnership property by inheritance. It was held on that
By comparing this complaint with that in the former action it will be seen that all the facts of that complaint held to constitute a transitory cause of action have been omitted from this complaint, and this is admitted by counsel for appellant. But they claim that the affidavit of the defendant on which the motion was made shows that plaintiffs intend so to amend their complaint in this action that they may introduce proof of all the facts alleged in their former complaint. They say: “We do not claim that under the present form of the complaint in this action, without any amendment thereto, that plaintiffs could introduce such proofs. ’ ’ That affidavit, among other things, contains the following: “That the complaint in this action was drawn and this action commenced in its present form with the intent of preventing a transfer of this action to Merced county, and with the purpose of litigating and determining in this action under said complaint or amendments thereto all questions and- matters that might have been litigated under the former complaints in the dismissed actions aforesaid. And it is plaintiffs’ purpose to have litigated and determined in this action under the allegations of the complaint herein, or an amendment to the complaint herein, all
We concur: Searls, C.; Haynes, C.
For the reasons given in the foregoing opinion the order appealed from is affirmed.