Deas v. Lido Lumber Co.

• Decision Date: 19 April 1955
• Court: California Court of Appeals Court of Appeals
• Parties: Mario P. DEAS, doing business as Electric Motor Shop, Plaintiff and Respondent, v. LIDO LUMBER COMPANY, a corporation, Defendant and Appellant. Civ. 8554.

Page 90

282 P.2d 90

132 Cal.App.2d 402

Mario P. DEAS, doing business as Electric Motor Shop, Plaintiff and Respondent, v. LIDO LUMBER COMPANY, a corporation, Defendant and Appellant.

Civ. 8554.

District Court of Appeal, Third District, California.

April 19, 1955.

Lawrence L. Light, Los Angeles, for appellant.

Robert L. Winslow, Willits, for respondent.

SCHOTTKY, Justice.

Plaintiff filed an action in Mendocino County to have a certain default judgment against him declared null and void and to recover the proceeds of the sale of a pickup truck which was sold under said judgment. Defendant corporation demurred and filed a notice of motion for change of venue to Los Angeles County where its principal place of business was. This appeal is from the order denying said motion.

The complaint alleges that on June 6, 1952, the appellant filed a claim and delivery action, No. 17857, against respondent in Mendocino County to obtain delivery of three electric motors; that on June 16, 1952, the summons and complaint in said action were served on respondent and the sheriff took the described motors into his possession; that respondent is of the Cuban race and not well versed in the English language; that due to prior dealings with appellant, respondent understood appellant was claiming certain specific motors and that when the sheriff picked up the motors respondent thought the matter was disposed of and did not understand that appellant was also seeking damages in said action; and that such a situation was likely to deceive respondent.

The complaint alleges further that unknown to respondent his default for failure to appear in said action No. 17857 was entered on July 12, 1952; that on March 16, 1953, judgment by default was entered against respondent for $1,313.54; and that respondent had no knowledge of this until about April 28, 1953, when levy was made upon a truck owned by him; that appellant 'willfully and with the intention to lull this plaintiff into a false sense of security deferred from taking further proceedings in this action after July 12, 1952,' so that after six months respondent would lose his rights under Code of Civil Procedure, § 473, to have the default vacated; that had any knowledge of the default come to respondent during this period he would have diligently moved to vacate the default under Code of Civil Procedure, § 473; that respondent has a defense to the action brought by appellant, in that the damages granted to appellant are based upon depreciation of the equipment, and respondent alleges that no depreciation occurred in such amount or in any amount at all; that the levy on the pickup truck did not satisfy the judgment; and that unless restrained the appellant will have another execution issued and will levy on additional property of respondent, to his irreparable harm and damage.

The prayer of the complaint asks that the judgment in No. 17857 be vacated, that appellant be directed to pay the proceeds of the sale of the pickup truck to respondent and that appellant be forever enjoined from executing such judgment.

Appellant's affidavit in support of the motion for change of venue set forth that the principal place of business of defendant corporation was in Los Angeles County. No counter-affidavit was filed. In denying the motion the trial court stated: 'If any attack is to be made upon this judgment it must be made in this Court and not in some other Court. As was said in the case of Brown v. Happy Valley Fruit Growers: 'Under a system where courts are given coordinate jurisdiction, one court will not interfere with the judgment of another court of coordinate jurisdiction except where the exigencies of the situation are so exceptional or pressing as to demand the summary intervention of the equity side of said court of coordinate jurisdiction.' 206 Cal. 515, 523, 274 P. 977.'

Appellant contends that it was entitled to have the action transferred to the county of its residence and that the trial court erred in holding that an equitable action to set aside the judgment rendered in Mendocino County could only be determined in the county that rendered the judgment. Respondent has waived the filing of any brief.

The instant action being based on alleged fraud and mistake and praying for equitable relief is without doubt a personal and transitory action, and appellant would, of course, be entitled to have it transferred to the county of his residence unless the fact that the judgment sought to be declared void was rendered in Mendocino County required it to be tried in Mendocino County.

The well settled rule is as stated in Goossen v. Clifton, 75 Cal.App.2d 44, at page 47, 170 P.2d 104, at page 107:

'The general rule is that a defendant is entitled to have actions tried in the county of his residence. The right of the plaintiff to have the action tried elsewhere is the exceptional right, and must find its justification in the terms of some statute. It is the duty of a plaintiff to bring himself within some exception if he can--otherwise, the defendant's right is to have the case tried in the county of his residence.'

In Brown v. Happy Valley Fruit Growers, 206 Cal. 515, 274 P. 977, the case upon which the trial court evidently based its decision on the motion, the plaintiff filed an action in Shasta County attacking on the ground of fraud a judgment which had been obtained in Alameda County. Appellants who were residents of Alameda County made a motion for change of venue to Alameda County. They appealed from the order denying their motion, and the Supreme Court, in reversing the judgment, held that the action was personal and transitory and stated, 206 Cal. at page 521, 274 P. at page 979:

'The right of a defendant to have an action brought against him tried in the county in which he has his residence is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decisions. 'The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.' Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209.'

The court also made the statement quoted by the trial judge in ruling upon the motion in the instant case, and then stated, 206 Cal. at page 523, 274 P. at page 980:

'We are of the view that the proper place of trial of said cause was the county of Alameda upon both of the grounds considered herein; certainly upon the ground that the action was personal and...