Nieves v. Heirs of Mangual

Me. Chief Justice Del Tobo delivered the opinion of the court. There is involved in this case a question of change of venue. Bamón Nieves Mercado, as guardian ad litem of Pilar Mercado, brought an action in the First District Court of San Juan against the heirs of José Sergio Mangual Fa-lero, composed of his widow and eight children, praying that Pilar Mercado be adjudged the acknowledged natural daughter of José Sergio Mangual Falero and be given possession of her share of his estate. The defendants were summoned and the widow, individually and in the names of three minor children, and four of the other adult defendant children joined in moving for a change of venue to the District .Court of Humacao for the sole reason that they resided within the said district of Humacao. The other defendant resides in the district of San Juan. The court overruled the motion because the affidavit of merits exhibited with the motion was not sufficient, and because both the plaintiff and one of the defendants resided in the district of San Juan. [524] The defendants wlio moved for tlie change of venue took tlie present appeal. We have examined the affidavit of merits and undoubtedly, applying the jurisprudence laid down in the case of Baker, Carver & Morell v. Healy & Siebert, post, page 527, we should hold that it was sufficient, hut that was not the only ground for overruling the motion. The plaintiff and one of the defendants reside in the district of San Juan, and although the other defendants reside in another district, the plaintiff had a right to bring and has a right to continue the action in the district of San Juan. .That is the actual ground of the order appealed from. Limiting ourselves to a consideration of the question from the only aspect under which it was raised, it will suffice to cite section 81 of the Code o.f Civil Procedure which, in so far as pertinent, reads as follows: “In all other cases, the action must he tried in the district in which the defendants, or some of them, reside at the commencement of the action; # ” (Italics ours.) And the jurisprudence of California in construing a similar statute has been expressed as follows: “The right of the defendant to have the action tried in the county where he resides at the time of the commencement of the suit, is provided by this section (Palmer & Rey v. Barclay, 92 Cal. 199; 28 Pac. 226; and where there is no express provision to the contrary, the proper county for trial, subject to the power of the court to change the place of trial on account of convenience of witnesses, disqualification of judge, and inability to have an impartial trial, is the county in which the defendants, or some of them, reside at the commencement of the action. Bonestell v. Curry, 153 Cal. 418; 95 Pac. 887. * * * If one defendant resides in one county and a co-defendant in another county, the plaintiff may have the cause tried in either county. O’Brien v. O’Brien, 16 Cal. App. 193; 116 Pac. 696; Hellman v. Logan, 148 Cal. 58; 82 Pac. 848. An action to recover- damages for the loss of property by fire, caused by the negligence of the defendants, may be brought [525] in tbe county of tbe residence of either defendant. Quint v. Dimand, 135 Cal. 572; 67 Pac. 1034. An action to recover a partnership interest, and for an accounting, must be tried in tbe county in which the defendants, or some of them, reside at the commencement of the action; it is only where none of the defendants are residents of the state that the plaintiff can designate in his complaint the place of trial (Banta v. Wink, 119 Cal. 78; 51 Pac. 17); and the burden of proof is on the moving party to show that no defendant resides in the county where the suit is commenced. Modoc County v. Madden, 136 Cal. 134; 68 Pac. 491. The test is, Does one of the necessary parties reside in the county where the action is brought? and if so, it may be tried there. Hellman v. Logan, 148 Cal. 58; 82 Pac. 848.” 1 Fairall’s Code of Civil Procedure, 276. The order appealed from must be Affirmed. Jusices Wolf, Aldrey, Hutchison and Franco Soto concurred.