McSherry v. Pennsylvania Consolidated Gold Mining Co.

Fitzgerald, J. The record in this case contains two appeals, — one from an order denying defendants’ motion for a change of place of trial, the other from an order denying defendants’ motion to dissolve an injunction. The action was for an accounting, and for the recovery of certain shares of the capital stock of the defendant corporation, alleged to have been illegally sold for delinquent assessments to the said corporation, who thereafter declared a stock dividend and distributed thirty per cent of plaintiff’s stock to its stockholders, the individual defendants herein, who, it is alleged, fraudulently conspired together, and in pursuance of such conspiracy did fraudulently deprive plaintiff of his stock so sold and distributed as aforesaid. Plaintiff also obtained an order restraining and enjoining all of the defendants from disposing of any of said stock, and from levying any further assessments upon the outstanding capital stock of the defendant corporation, until the termination of this action. The application for a change of place of trial was made by each and all of the defendants at the time of filing their demurrer, and before answering, on the ground “ that the county designated in the complaint, viz., the city and county of San Francisco, is not the proper county.” The affidavit upon which the application was [641] based shows that at the time of the commencement of the action, and afterwards, the principal and only placo of business of the defendant corporation, and the place of residence of each of the other defendants, was in Nevada County, except the defendant Bhodes, 'whose place of residence was in Sacramento County. The application was resisted by opposing affidavits, on the grounds,. — 1. That an impartial trial of the case could not be-had in Nevada County; 2. That the convenience of witnesses and the ends of justice would be promoted by the retention of the case; 3. That the defendant Bhodes did not join in the' application, for the reason that he was never served with process, and never appeared, or authorized any one to appear for or represent him in this action; 4. Insufficiency of the affidavit of merits; and 5. That the complaint, which is verified, shows that the principal place of business of the corporate defendant is in the city and county of San Francisco.. The first and second grounds of objection are disposed of by the case of Cook v. Pendergast, 61 Cal. 12, in-which it was held that, “ independent of an express provision of statute, the superior court ought not to-be called on before issues of fact have been joined to decide- that the convenience of witnesses will be promoted by- a change of the place of trial, or that an action-oaunot be fairly and impartially tried in the county in„ which.it is pending. The Code of Civil Procedure does not require a decision which, in the nature of things, must ordinarily be premature. . ... If the motion to change the place of trial is brought to a hearing before he has an-, swered, the plaintiff cannot, by cross-motion, demand the retention of the action in the county where it is pending, on the ground of convenience,.etc.” (See also Heald v. Hendy, 65 Cal. 321.) With reference to the objection that Bhodes was never served with process, and that he never-appeared or authorized any one to appear for him, it is- sufficient to say that the record shows that the demand for a change of place of trial was signed by him..and.that the at [642] torneys herein, whether authorized to do so or not, did appear for and represent him. But let us concede that he was never served, and that he never appeared, and that the attorneys who appeared for him did so without authority, and that these facts were shown in the proper way, which, of course, was not the case, still the claim that when a demand for a change of venue is made all the defendants must join in the demand cannot be sustained. This point was expressly decided adversely to plaintiff’s contention in Rathgeb v. Tiscornia, 66 Cal. 96. Nor is the contention that the affidavit of merits is insufficient because it was made by one of the defendants only well founded. The affidavit, it is true, vras made by Wilhelm, the president of the defendant corporation, and one of the individual defendants in the action. But it is expressly stated in the affidavit that he makes it for himself and" for all and each of the defendants, and at their request; and further, that he and the other defendants have fully and fairly stated the facts of the case to tlieir attorneys herein, who, upon such statement, advised each and all of them that they had a good and substantial defense upon the merits of the action, which each and all of them verily believed to be true. The affidavit was used at the hearing of the motion in behalf of each and all of the defendants, and was in all respects sufficient. (Rowland v. Coyne, 55 Cal. 1; Palmer v. Barclay, 92 Cal. 199; People v. Larue, 66 Cal. 235.) The allegation in the complaint, that “ plaintiff is informed and believes that the defendant corporation has its principal office in San Francisco,” is not only immaterial, but when viewed in connection with plaintiff’s previous relations with the corporation, having been general manager, director, and owner of a majority of its capital stock, and the positive and direct statement to the contrary made by the president of the corporation in the affidavit of merits, of which no notice was taken by plaintiff in his opposing affidavit, entitles it to be treated, as we think it really is, a sham allegation. The claim, therefore, that there is a conflict on the [643] question as to the place of residence is without any foundation whatever. The place of residence of a corporation is in the county where its principal place of business is situated (Jenkins v. California Stage Co., 22 Cal. 538; Cohn v. Central Pac. R. R. Co., 71 Cal. 488; Buck v. Eureka City, ante, p. 135), and that is the proper county, within the meaning of section 395 of the Code of Civil Procedure, where actions against it of this character must be tried, subject, however, to the other grounds of this and the following section, and of the provisions of section 16 of article XII. of the constitution; also to the power of the court to change the place of trial as provided in the code. Upon the showing thus made, the defendants were entitled, as a matter of right, to have the place of trial changed to Nevada County, and the court erred in denying their motion to change the place of trial to that county. The order appealed from is therefore reversed, and the court below directed to make an order granting plaintiff’s motion for a change of the place of trial of this action to Nevada County. The motion to dissolve the injunction was made on the ground that plaintiff’s sureties failed to justify within a reasonable time, or at all, after notice of exception to the sufficiency of sureties was given. It appears that the injunction was served on February 29, 1892, and the notice of exception on the fifth day of March following. But no notice of justification was served or filed up to the twentieth day of the last-named month, or at all. The notice of motion to dissolve was thereafter served and filed, and on the first day of April the motion was heard and denied by the court. Section 529 of the Code of Civil Procedure provides, among other things, that when the sufficiency of sureties is “excepted to, the plaintiff’s sureties, upon notice to the defendant of not less than two nor more than five days, must justify before a judge or county clerk in the same manner as upon bail on arrest, and upon failure to jus [644] tify at the time and place appointed, the order granting an injunction shall be dissolved.”. This section, in view of the damages that may result from the improper issuance of an injunction, must be construed to mean that notice of justification must he given to the defendant of not less than two nor more than 'five days after the filing and serving of the notice of exception to the sufficiency of the sureties. And the plaintiff’s sureties must justify within five days after said notice of exception is given, or the injunction will, upon motion, be dissolved. But as it is possible that the respondent may have been misled by correspondence had between his attorney and the attorneys for appellants as to the time agreed upon between them when the sureties should justify, the order will be reversed, with directions to the court below to make an order granting the motion to dissolve the injunction, unless plaintiff’s sureties shall justify, upon proper notice to the defendant, within five days after the filing of the remittitur. So ordered. McFarland, J., and De Haven, J., concurred.