McKenzie v. Barling

Citations

• 101 Cal. 459
• 36 P. 8
• 1894 Cal. LEXIS 1058

Syllabus

<p>Change of Place of Trial—Residence of Defendants.—Where one of the defendants resides in the county in which the action is brought, that county is not an improper county for the trial, and the fact that the remainder of the defendants reside in another county does not entitle them separately to move to change the place of trial to the county in which they reside.-</p> <p>Id.—Joinder in Motion.—Where any of the defendants reside in the county in which the suit is brought a motion to change the place of trial to a county in which others of the defendants reside will not be granted, unless all of the defendants join in the motion, or unless good reason is shown why they have not so joined.</p> <p>Id.—Parties—Consent of Resident Defendant—Insolvency. — Where it sufficiently appears upon the face of the complaint that a defendant residing in the county where the suit is begun is not a proper and necessary party to the action the other defendants may have the trial changed to the county where they reside, without the consent of the resident defendant; but where the complaint states the same cause of action as to all of the defendants, the fact that the resident defendant is alleged to have commenced proceedings in voluntary insolvency, and that he is sought to be charged with the indebtedness as having been contracted in a fiduciary capacity, does not render him a nominal defendant, or entitle the other defendants to have the place of trial changed without his consent.</p> <p>Id.—Affidavits on Motion—Conflict.—Where the affidavits used upon a motion to change the place of trial go mostly to the merits of the action, and all the statements therein are controverted by conflicting affidavits, the ruling of the court in denying the motion will not be reversed upon appeal.</p>