The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1894-07-20
NO CHANGE ALLOWED.
A CASE THAT WILL BE TRIED IN
LOS ANGELES.
The Supreme Court Refuses to Disturb
Decision by Our Superior Court.
Ruling on a Mortgage
Law Point.

The supreme court, in an opinion re-
eeived at the Los Angeles office yester-
day, affirmed the decision OF the superior
court of this county in the case OF the
Stockton Combined Harvester aud Ag-
ricultural works, appellant, vs.. Daniel
Houser, respondent. 1t was an appeal
from an order denying the company'u
motion for q change of the place OF trial
of the action to San Joaquin county.
This motion was made upon the ground
that the convenience OF witnesses and
che ends of justice would be promoted
by the change.
The company's principal place OF bust
ness ia at Stockton. It's capital stock is
100000. divided into 5000 shares, OF
which $500 had been actually subscribed
for and taken. The defendant October
a. 1892, owned 400 shares of the stock,
and $50 had at that time been paid on
each ehare of the capital stock.
An action WAS brought to recover an
held by the defendant.
The company alleged that it was in.
debted to various persons in the sum OF
levied to meet the liabilities.
The motion to change the venue was
based upon an affidavit of the president
OF the company, stating that all the
transactions occurred in San Joaquin
county; that all the officera and agents
of the company resided there, except
one who resided in Butte county, and
that the affiant and others would be ma
terial and necessary witnesses at the
trial, and no witneBs, except the defen-
dant, resided in Los Angeles county.
When the motion was called, counsel for
defendant produced a stipulation, ad-
uniting in substance that all the facts
alleged in the complaint were true, and
the motion was denied.
In support of tine appeal it was claim ed
that as no counter affidsvits were filed,
it Wac in effect admitted that the conve-
nience of witnesses and the ends of JUS
tice would be promoted by the change,
and the company had O statutory right
to have the motion granted. But the
supreme court holds that this claim
cannot be sustained, as applications Of
this character are addressed to the
sound legal discretion of the court, and
its action cannot BIO disturbed on appeal
unless it clearly appears that there was
an sbuae of that discretion, which was
not the case in this instance.
The supreme court also decided the
case OF CAIRNS, appellant, vs.. Jensen
ct al, respondents. The plaintiff in the
action sought to foreclose mortgage
executed by him to the defendant Jen-
sen, dated June 20, 1889, making Mrs.
Upton, one OF the respondents, a party
defendant under the allegation that she
claimed some interest in the premises,
subject to the lien of the plaintiffs
mortgage. cross-complaint was filed
on behalf OF Mrs. Upton, in which she
alleged that the defendant Jensen had
executed to her q mortgage upon the
airy, 1889, which was lien prior to that
Of the plaintiff, and asked Judgment
for its foreclosure and the payment of
her claim prior to that of the plaintiff.
The mortgage included clause that in
case of foreclosure there might be in
cluded taxes on the interest of the
mortgage"
The plaintiffs answer averred that
the provision contravened the provi-
eions of the constitution and laws of
the state by reason of which his mort
gage became first lien. The superior
court held that it was not violation of
the constitution or laws of the state,
and gave judgment for Mrs. Upton for
the full amount.
The supreme court holds that Mrs.
Upton'e mortgage WAS prior lien to the
extent of the principal sum for which it
wac gwen, but was void as to the inter
eet epeci6ed, and that the superior court
erred in holding that the amount of
such inherent was lien upon the
premises. 1t therefore directs the modi-
fcation of the judgment by deducting
the amount allowed for interest upon the
principal sum for which the mortgage to
Mrs. Upton was executed, and, as modi-
fed, that it stand affirmed.
The supreme court also sffirms the
Judgment of the superior court In the
case OF s. M. Smith. respondent, We. r.
P. Waite, appellant. 1t was an appeal
from default judgment for a note and
for labor and services; the supreme court
says the only question was whether the
complaint stated facts sufficient to con-
stitute cause of action. 1t holds that
the complaint was sufficient.
In the case of Field, respondent, va.
Andrads, ct al. appellants, the supreme
court dismisses the appeal.