Vallejo v. Randall

5 Cal. 461

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Terry, J., delivered the opinion of the Court.

Murray, C. J., and Heydenfeldt, J., concurred.

The respondent commenced an action against the appellant in the District Court of the Twelfth District for the County of San Francisco, for the foreclosure of a mortgage on certain land situated in the County of Solano.

The appellant, Randall, filed his answer, in which he set out, amongst other matters, that the Court had no jurisdiction to try said cause,— the mortgaged premises described in the complaint being situated wholly within the County of Solano. To this portion of the answer of appellant, respondent demurred. The Court sustained the demurrer, and after hearing evidence, entered a decree for the foreclosure of the mortgage and sale of the premises.

From this judgment an appeal was taken. The eighteenth section of the “Act to regulate Proceedings in Civil Cases,” provides that actions for the foreclosure of mortgages, must be tried in the county in which the subject of the action, or some part thereof, is situated. In this case, it appearing from the complaint as well as answer of Randall, that the subject of the action was situated wholly without the County of San Francisco, the Court of its own motion should have ordered a change of venue, and the failure to do so was error.

It is ordered that the judgment be reversed, with costs, and the cause remanded, with instructions to the Court below, to transmit the record for trial to the District Court of the Seventh District for the County of Solano.