
    Sergio Muñoz et al., Plaintiffs and Appellees, v. Eusebio Benítez Carrillo et al., Defendants; Félix Benítez Rexach, Defendant and Appellant.
    No. 6725.
    Argued May 8, 1935.
    Decided June 10, 1935.
    
      
      Rafael Buscaglia■ for appellant. G. Cruzado Silva for defendant Santiago Iglesias Silva. Gonzalez Fagundo (& Gonzalez, Jr., for appellees.
   Mr. Justice PIutchisoN

delivered the opinion of the court.

Félix Benitez Rexach, one of several defendants, moved for a change of venue from the District Court of Humacao to the District Court of San Juan. Benitez Rexach was a resident of San Juan. The other defendants were residents of Humacao. The district judge overruled the motion.

The theory of the motion was that the defendants who resided in Humacao were not necessary parties, should have appeared as plaintiffs instead of defendants, and had been made defendants for the sole purpose of preventing a possible change of venue. Benitez Rexach relied on the complaint itself as sufficient evidence of the facts needed to support this theory.

When there are a number of defendants some of whom, at the commencement of the action, reside in the district where it has been brought, a change of venue will not ordinarily be granted. Section 81 Code of Civil Procedure; Nieves v. Heirs of Mangual, 31 P.R.R. 523, and Vélez v. Pacheco et al., 35 P.R.R. 602. The fraudulent joinder of a resident defendant against whom the plaintiff has no cause of action merely for the purpose of preventing the real nonresident defendant from obtaining a change of venue will not be permitted to accomplish that result. See McDonald v. California Timber Co., 151 Cal. 159 and other cases cited in Bancroft’s Code Practice, vol. II, p. 1447, section 1006. In such a case there is of course no real resident defendant.

Plaintiffs Muñoz and Quintana alleged that in April 1928, they, as sureties, and Eusebio Benitez Carrillo, as principal, had executed a certain promissory note set forth in full in the complaint in favor of El Banco de Yabncoa for $3,000; that this entire amount was delivered by the bank to the defendant, Benitez Carrillo, and used by him in his farming operations; that the bank brought an action on the note against defendants (sic) and Benitez Carrillo and attached certain property belonging to Benitez Carrillo, whereupon the defendants, Benitez Rexaeh and Iglesias Silva, executed a bond for the release of the attached property which was delivered to Benitez Carrillo who disposed of the same for his own benefit; that after the bank had obtained judgment against Benitez Carrillo, Muñoz and Quintana, the defendants, Benitez Rexaeh and Iglesias Silva, paid the said judgment, making it appear that they had purchased the same and brought an action number 15,692, in the District Court of Humacao against Muñoz and Quintana, plaintiffs herein, in which action, Benitez Rexaeh obtained a judgment against plaintiffs herein for $3,000, principal, and interest thereon at 12%, which judgment was affirmed on appeal by the Supreme Court; that Benitez Rexaeh did not severally pay to the hank the amount of the bank’s judgment against Muñoz, Quintana and Benitez Carrillo, but one half of said judgment, and the other half thereof was paid by Iglesias Silva, who on December 20, 1930, for value received, assigned to Sergio Muñoz one half of the judgment, and Benitez Rexaeh, plaintiff in suit number 15,692, now seeks to recover the entire amount of said judgment which is not and never has been his property; that Quintana and Muñoz were sureties for Benitez Carrillo on the note above mentioned and therefore owed the bank nothing and, the attachment of property belonging to Benitez Carrillo sufficient to cover the amount of the bank’s judgment having been dissolved, Beni-tez Carrillo was insolvent; and that Iglesias Silva and Benitez Rexaeh, as sureties of Benitez Carrillo on the bond for dissolution of the attachment, were under obligation to pay plaintiffs the amount of the judgment on the note executed in favor of the bank and, notwithstanding such obligation, Benitez Rexach. seeks to recover from plaintiffs the total amount of the said judgment which does not belong to him.

The prayer was for a judgment against defendants to the effect that plaintiffs are not obliged to pay Benitez Rexach anything by virtue of the judgment rendered in case number 15,692 prosecuted in the District Court of Humacao, and that said judgment is null and void because the former judgment was not paid in full by Benitez Rexach; and that Beni-tez Rexach and Iglesias Silva, as sureties of Benitez Carrillo, are bound to satisfy the judgment in the action brought by the bank against Benitez Carrillo, Muñoz and Quintana.

It was Iglesias Silva, who equally with Benitez Rexach, was responsible for the dissolution of the attachment and loss of the attached property of the insolvent debtor, Beni-tez Carrillo, in the action brought by the bank against the said Benitez Carrillo and his sureties, plaintiffs herein. It was Iglesias Silva who paid one half of the judgment obtained by the bank and then, together with Benitez Rexach, brought an action against plaintiffs herein to recover the entire amount of that judgment. Apparently it was Iglesias Silva who thus enabled Benitez Rexach to obtain a judgment against plaintiffs herein for the full amount of the judgment alleged to have been purchased by Benitez Rexach and Igle-sias Silva from the bank. It was Iglesias Silva who as ostensible purchaser and owner of a one half interest in the bank’s judgment assigned the same, December 20, 1930, to Muñoz, one of the plaintiffs herein. It is the full amount of this judgment which Benitez Rexach is now seeking to recover from plaintiffs herein.

Benitez Rexach is seeking to enforce against plaintiffs a judgment obtained by him in an action brought against plaintiffs not by himself alone but by him and Iglesias Silva.. Just how he alone obtained in that action a judgment for the full amount claimed by him and Iglesias Silva does not appear. The inference is that in the course of the action he became the assignee of Iglesias Silva or in some other way acquired or appeared to have acquired the interest of Igle-sias Silva. This is the same interest which Iglesias Silva, on December 20, 1930, assigned to the plaintiff, Muñoz. Plaintiffs herein seek to avoid payment of the amount claimed by Benitez Rexach on the ground that Iglesias Silva and Rexach, when they procured the dissolution of the attachment in the bank’s suit on the note whereby the attached property was lost, made themselves liable to plaintiffs herein as sureties of Benitez Carrillo on his note to the bank for the amount of the bank’s judgment against them as such sureties, which is the amount now claimed by Benitez Rexach. In other words the theory of the complaint is that Iglesias Silva is either jointly or jointly and severally liable to plaintiffs for the full amount which Benitez Rexach is attempting to collect from plaintiffs. The result in the present action, if adverse to defendants, may be an adjudication that Iglesias Silva, as surety of Benitez Carrillo was and is bound, together with Benitez Rexach, to satisfy the judgment obtained by the bank in its action against Benitez Carrillo and plaintiffs herein.

Appellant in his brief is content to say that if the defendants, Iglesias Silva and Benitez Carrillo, have any interest at all in the case such interest is united with that of plaintiffs and that these defendants should have been joined as plaintiffs. The facts set forth in the complaint furnish no satisfactory basis for this conclusion. If plaintiffs herein, instead of Iglesias Silva and Benitez Rexach, had been compelled to pay the bank’s judgment, they would have had a good cause of action against Iglesias Silva and Benitez Carrillo as well as against Benitez Rexach to recover from them the amount so paid. Barring any question of res judicata, and assuming the ability of plaintiffs to prove the averments of their complaint, we see no reason why the responsibility of all three defendants, as between themselves and plaintiffs-herein, should not be determined in the present action. The complaint, however defective it may be, states facts sufficient to constitute a canse of action against Iglesias Silva, if not against both bim and Benitez Carrillo.

What we have said disposes of the question of bad faith or fraudulent intent to anticipate and prevent a possible change of venue. We may add in passing, however, that plaintiffs, in opposing’ the motion for a change of venue, called the attention of the district judge to the fact that Iglesias Silva had appeared in the action and submitted himself to the jurisdiction of the Humacao court. The notice of appeal was addressed to counsel for the defendant Iglesias Silva, as well as to counsel for plaintiffs and was served on counsel for Iglesias Silva as well as on counsel for plaintiffs.

The order appealed from must be affirmed.  