Remington Sewing Machine Co. v. Cole

Ross, J.: 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. [319] McKinstry and McKee, JJ., and Morrison, C. J., concurred.