A A ^ —5 5 — s 7 - » ' ' THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW «r *^ ^"^ Remove J^om l.ibrury. A TREATISE ox THE LAW or PLEADIXG AND PRACTICE UNDER THE PROCEDURAL CODES ADAPTED TO USE IX ALASKA, ARIZONA, CALIFORXIA, COLORADO, HAWAII, IDAHO, KANSAS, ilONTANA. NEBRASKA, NEVADA, NEW ^lEXK'O. NORTH DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA, UTAH, WASHINGTON, AND WYO:\nNG Le mcster dc counter. — Britt. c. 22. (The mystery or art of pleailing.) BY JAMES M. KERR SAN FRANCISCO, CALIFORXIA BENDER-MOSS COMPANY Law Book Publishers and Sellers 1919 T Copyright, 1919, BENDEK-MOSS COMPANY FOREWORD 5 ^ ,^ Some new features are iiitroduced in the present ^ treatise, (le])arting- in a marked manner from anytliini^- to ])e found in any other treatise on C'ode Pleadini^- and Practice; and the fond hope is in(hil<;ed that the i)rofes- sion may find Parts I and II of this treatise sufficient justification for its existence — being practically all new matter, designed to assure attorneys in Getting the right start in an action; for getting the right start, either in Law or in Life, is a very important matter, upon which fulcrums the success in the one or the career in the other. There is a great deal of sound philosophy in Davy Crockett's motto: "Be sure yon are right, then go ahead"; and this homely aphorism should be the fundamental rule of all practitioners, in instituting an action or proceeding at h\w or in equity. Pythagoras' s saying that "the beginning is half of the whole," or the same precept in popular parlance, to tlie effect that "well begun is half done," is peculiarly applicable to law-suits. On the other hand, in Shake- spear's view, Things bad begun make strong themselves by ill.i Every laivyer knows the general rules of pleading and practice, is assumed in the preparation of this treatise; it is the illustrations or applications, and the exceptions to the general rules the average lawyer wishes at hand for ready reference, — and these it is sought to give as completely as is practical in a treatise of two volumes ^ which seeks to cover the whole field. To illustrate : The chapter on Removal of Cause- is a comprehensive and orderly resume of decisions, not an attempt at an ex- haustive ti'eatment, — a sort of necessary "first aid," which will lead unerringly into the broader field of com- 1 Maebelh, Act. Ill, Scene ii, 1. oj. - S§ 137oiiL'. pl(4e discussion. Tiiis feature is entirely new in its scope and method of treatment, giving the various steps to be taken, and the grounds of removal, as they are set out in the Judicial Code,^ with some, but not all, of the pertinent decisions. Assistfulness to Bench and Bar has been one of the main objects in the preparation of this treatise, within the field it essays to cover; and to this end it has been sought to so arrange the matter treated as to render the volumes most easily consulted, and serviceable as a Avorking tool. The distinctive features will appear upon examination; but special attention may be directed, as illustrations of this method of treatment, to the chapter on Demurrers,* — in which, among other matters dis- cussed, are treated the kinds of demurrers,^ wliat de- murrer reaches,** and when it lies," testing the complaint by demurrer,^ and the like, — the nine grounds on which a defendant can demur to the complaint are arranged seriatim,*^ with appropriate discussion and authorities under each ground of demurrer. In the chapters de- voted to the Answer, ^° for instance, the Pleas that may be filed in a civil action are arranged and discussed in their alphabetic order, ^^ with a pretty full, if not exhaustive, collection of the ''Special Pleas "^^ which may be filed under the various classes of pleas, similarlj^ arranged and discussed, with numerous pertinent and illustrative cases cited. Other parts of the treatise are prepared in the same methodical, orderly, — and it is hoped, assistful, — manner. Pasadena, Cal., July 15, 1919. James M. Kerr. s § 28, 5 Fed. Stats. Ann., 2nd ed., p. 16. 8 §§ 890-910. * U 872-1032. 9 §§ 915-1022. r. §§886-889. iM§ 1038-1198. 6 § 885. " §§ 1093-1096. T §§ 883, 884. . 12 §§ 1097-1168. CONSPECTUS PART I. GENERAL PRINCIPLES. CHAPTER I. INTRODUCTORY. 1. In General. « .. Section Purpose and plan of work 1 Remedies generally 2 S. Action and Cause of Action. Action defined 3 Divisions of actions 4 Cause of action — Nature and elements of 5 Damage without wrong — Damnum absque injuria 6 S. Special Proceedings Not Actions. Definition of special proceeding 7 Illustrations as to what are special proceedings 8 4. Provisional Remedies. What proceedings are 9 In what consist — Illustrations 10 CHAPTER IL GENERAL FUNDAMENTAL PRINCIPLES OP PLEADING. In general 11 Purpose of chapter 12 Pleadings originally oral — Now required to be in writing 13 English system of pleading exceptional 14 Materiality of issue 15 Certainty of issue 16 Singleness of issue 17 Duplicity and misjoinder of issues 18 Common-law pleading 19 The formal pleadings at common law 20 VI CONSPECTUS. CHAPTER III. CHANGES MADE BY PROCEDURAL CODES. Scctioit Introductory 21 Code pleading not founded on common-law pleading 22 Object of code pleading 23 Allegations under code — Facts only 24 Illustration 2') Common counts — How far allowed under code pleading 2G Special demurrer 27 Motion to make more definite and certain 28 Forms of actions abolished, but not the remedies 29- Artificial distinctions and fictions abolished 30. CHAPTER IV. JXmiSDICTION — IN GENERAL. Departments and powers 3r Judicial function 32 Definition of jurisdiction 33 What acts are included within 34 Ministerial officer not included S.) Essentials of jurisdiction 3(V Judisdiction depends upon authority 37 Jurisdictional defects 38 Acts without, or in excess of, jurisdiction 39' Objection to jurisdiction — Must be timely 40 By plea in abalomcnt 41 By motion 42 Presumption as to jurisdiction — Rebuttal 43 Consent of parties — Confers jurisdiction when 44 Want of, and irregular exercise of, jurisdiction, distinguished 4.T Jurisdiction at chambers — In general 4(i Acts which may be done 47 Acts which may not be done 4 s In Idaho 40 In Kansas 50 In Montana 51 Ill Nevada 50 In New Mexico , 53 In Oregon ' 54 In Washington 55 Ouster of, and loss of, jurisdiction 56, CONSPECTUS. VU CHAPTER V. JUKISDICTION KINDS OP. Scction In general ^"^ General jurisdiction 58 Limited jurisdiction — Incomplete and inadequate jurisdiction 50 Original jurisdiction GO Exclusive jurisdiction 61 Concurrent jurisdiction 62 Conflict of jurisdiction 6S CHAPTER VI. JURISDICTION — SOURCES OF. In general "^ Legislative regulation and control 6;') Power to establish courts 6(5 New causes of action 67 Judicial authority — In general 68 Rule as to jurisdiction 6i> Elements of jurisdiction twofold 70 Over the subject-matter of the action 71 Over the person of the defendant 72 Over the remedy or relief 7S Void proceedings 74 Voidable proceedings 75 Jurisdiction by consent of parties 76 CHAPTER VIT. JURISDICTION — OF STATE COURTS. In general 77 Particular jurisdiction of state courts 7S California courts — Constitutional jurisdiction 79 Supreme Court — Formation of 80 Election and term of office of justices 81 Vacancies: Disqualification: Inability to act 82 Jurisdiction of — Nature and extent 83 ■ Appellate and original jurisdiction 84 Amount in controversy 85 Eules of procedure 8(5 District Courts of Appeal — Nature of courts 87 The districts, and places of holding court 88 Justices : term of office : vacancies 89 Apjiellatc and original jurisdiction 90 Transfer of causes to and from 91 Vlll CONSPECTUS. Section Superior Courts — Courts of general original jurisdiction 92 Election ami term of office of judges 93 Presiding justice — Selection and duties 94 Vacancies : forfeiture of office 95 Holding court in another county 96 Judges pro tempore 97 Jurisdiction — In general 98 Original and appellate jurisdiction 99 Amount in controversy 100 Juvenile Court — Dependent and delinquent children 101 Jurisdiction in specific classes of cases — Abatement of nuisance 102 Divorce and annulment 103 • Forcible entry and detainer 104 Fugitives from another state 105 Lost record : presumption 106 Partition fence — Recovery of value 107 Person or property in another state 108 Probate matters 109 Taxes and assessments 110 Validity of election by corporation Ill Justices' Courts — Establishment of 112 Term of office of justices: vacancies: holding over 113 Jurisdiction — In general 114 Jurisdiction must affirmatively appear 115 Title or possession of real property involved — Certifica- tion to Superior Court 116 Priority of jurisdiction — State and federal courts 117 CHAPTER VIII. PROCEEDINGS TO OBTAIN JURISDICTION. In general 118 Definition of "process" 119 Notice requisite to "due process of law" — In general 120 Citation — Definition and nature 121 Service and return 122 CHAPTER IX. PBOCEEDINGS TO OBTAIN JURISDICTION THE SUMMONS. 1. Introductory. In general 123 Amendment of complaint ■ 124 Defective summons — Cured by complaint when 125 Alias and pluris summonses 126 CONSPECTUS. IX S. Nature and Style of Summons. Section In general l'^^ Style of process or summons 128 S. Form and Contents of Summons. Contents of summons — 1. Names of parties to the action, etc 129 Several persons parties 130 Under Practice Act, § 54 131 Where plaintiff ignorant of true name 132 Where party sues or is sued in representative character 133 Where new parties are brought in 134 Where personal representative brought in 135 2. Direction to defendant to appear and answer 136 3. Notice of relief to be demanded 137 In action on contract for money or damages 138 In all other actions 339 In actions in ejectment 140 In actions for specific relief 141 Alternative relief — ^Wrong relief 142 Amending summons 143 CHAPTER X. PBOCEEDINGS TO OBTAIN JURISDICTION — SERVICE OP PROCESS. 1. Introductory. In general ^^^ Identity of name and person 145 False name ^*" Fictitious name 147 "Personal service" defined 148 * ' Duly served, ' ' meaning of 149 Service actual performance — Reservice 150 S. Authority or Capacity to Serve. In general 1^1 By sheriff — In general l''^2 By his deputy 1-53 Effect of: Return 354 Sufficiency of return — Several defendants 155 False return— Effect of 156 , "Law of the land": "Due process of law" 157 Relief from false return — 1. In general: Kentucky statute 158 ■ 2. Motion to vacate judgment 159 I 3. Suit in equity to vacate or enjoin 160 -.— Conditions precedent to relief 161 , — — — —4. Action against sheriff on bond 162 X CONSPECTUS. Section Loss of right ] 63 By person other than sheriff — Atlidavit of service 164 Amendment of affidavit 165 3, Upon Whom Service To Be Made. In general 1 66 Domestic corporation 167 Construction of statute — Instances 168 Foreign corporation 169 Construction of statute — Instances 170 ' ' Managing agent " 171 Foreign corporation not in business within state — Officer or agent casually within state 172 Municipal corporation 173 Infant or minor under fourteen years of age 174 Action by father against 175 Insane or otherwise incompetent person 176 Joint association 177 Joint and several debtors 178 Executor or administrator 179 Nonresident defendant 180 4. Mode of Service of Process and Sufficiency Thereof. In general 181 Personal service — In general 182 How made — By delivery 183 By reading 184 ■ By telegraph 185 Out of jurisdiction 186 Constructive or substituted service — In general 187 1. By leaving copy — Kansas 188 Oregon 189 I- tah 190 Washington 191 2. By mail, registered or otherwise 192 3. By publication — In general 193 In California — In general 194 Affidavit for order of publication — Necessity for 195 General requisites of 198 Must state probative, not ultimate facts 197 On infant or minor 198 Order of publication — What to contain 199 ; Change in summons not permissible 200 Depositing in post-office ; 201 Affidavit of depositing in mail 202 Affidavit of publication — By whom to be made 203 Publication sufficient when 204 CONSPECTUS. ^ Section Publication conclusive when 205 Time within which to appear after publication 206 6. Time and Place of Service of Summons. Time of service — In general In California ^^^ On Sunday ^^^ Place of service — California doctrine • 210 6. Serving Copy of Complaint Instead of Process: Copies With Process. Serving complaint instead of process 211 Serving copy of complaint with process 21-. 7. Service Procured by Fraud. In general " CHAPTER XI. PROCEEDINGS TO OBTAIN JURISDICTION — DEFECTS AND OBJECTIONS. , 214 in general Defects not prejudicing defendant 21o Defects to which defendant may object 216 21 7 In the process • • ^ In the service of process or proof of service— Personal service 218 Service by publication 219 Persons who mav object • 221 Necessity for objection Mode of objecting and sufficiency thereof— In general 222 993 By plea . 2''4 . By motion Time when objection to be taken ^-^ Quashing or setting aside process or service thereof— In general 226 The process "" ' The service of summons — Personal service 228 Service by publication --^ 230 Amendment of defects — In process To return of service of process — In general 231 Limitation on rule 232 Character and scope of amendment 233 . Jurisdiction can not be conferred by amendment 234 Time within which amendment may be made 235 Who may amend -■'" Method of amendment 237 On notice. 238 Waiver of defects and ob joctions 239 Curte by subsequent proceedings — Defects which may be cured 240 Defects which are not cured 241 Xll CONSPECTUS. CHAPTER XII. PBOCEEDINGS TO PEOCURE JURISDICTION — ACCEPTANCE AND WAIVER OP SERVICE. „ ,. Section Acceptance or acknowledgment of service — In general 242 Collusive acceptance 243 Place of acceptance 244 Time of acceptance 245 Must be in writing 246 Nonresident defendant • 247 Proof of genuineness of signature 248 Who may accept service 249 Waiver of process or of service thereof — In general 250 What constitutes a waiver 251 What does not constitute a waiver 252' Who may waive 253 Who may not waive 254 CHAPTER XIII. PROCEEDINGS TO OBTAIN JURISDICTION — APPEARANCE. In general 255 As to what constitutes appearance 256 As to kinds of appearance — In general 257 General appearance — What constitutes 258- A step taken in the cause 259 Motion in the action 260 On jurisdictional grounds 261 On other than jurisdictional grounds 262 Special appearance — In general 263 What constitutes 264 When becomes general appearance 265 Moving on nonjurisdictional grounds 266 Appearance by party — In general 267 In person or by attorney 268 To contest motion 269 Rights of party appearing 270' Appearance by attorney — In general 271 Authority of attorney to appear 272 Signature of attorney — No notice of: Proof of 273- Stipulations of binding on client 274 Appearance by agent, attorney-in-fact, etc 275- Board of education, etc. : Suits by and against — Power to employ counsel 276^ Cities: Suits by and against — PoT\»er to employ counsel 277 Counties: Suits by and against — Power to employ counsel 278 Eminent domain — Who may appear 270 Escheat proceedings — Who may appear 280 CONSPECTUS. Xlll Section Heirship : Proceedings to determine— Who may appear 281 Husband and wife— Appearance in suit against 282 Infants, incompetents or insane persons— Appearance by 283 Partners : Suits by and against— Appearance 284 State: Suits by and against— Appearance : Divorce proceedings 285 Towns: Suits by and against— Power to employ counsel 286 Vessels: Actions against— Who may appear 287 Withdrawal of appearance — Allowance and effect 288 CHAPTER XrV. NOTICE OF LIS PENDENS. In general ^^^ Limited to state courts 290 Filing of — Necessity for 291 Commencement of action not notice 292 Effect of failure to file 293 When to be filed 294 The notice — What to contain 295 New notice necessary when -96 Actual notice— Effect of 297 Effect of lis pendens— In general 298 Constructive notice -^^ Time of commencement Property affected by — In general. 300 301 Personal property ^^-^ Actions to which applicable— In general 303 Creditors' suit ^0'* Divorce proceedings ^^"^ Ejectment and actions to quiet title 306 Eminent domain proceedings 307 ■ Mechanics ' lien foreclosure 308 Partition ^^^ Replevin of personal property 310 Tax suit •^^^ Vendor 's lien : Action to enforce notes 312 Territorial operation of 313 Diligence in prosecution necessary Lien of judgment or decree Operation and effect — Purchaser pendente lite 316 Purchaser bound by decrees 317 CHAPTER XV. PLACE OP TRIAL — AS DETERMINED BY SUBJECT OP ACTION AND NATURE OF PROCEEDINGS. 314 315 In general In any county when. 318 319 XIV CONSPECTUS. Section Local and transitory actions — In general 320 Local actions 321 Transitory actions 322' Actions a£fecting real property — In general 323 Illustrations of local actions 324 Action to declare deed absolute mortgage: Redemption 32.> Action to reform contract for sale of land 32(5 Action for specific performance 327 Action to enforce trust in land 328 Action to foreclose lien on land 329' Action for trespass on land 330 To enjoin threatened trespass 331 Suit for use and occupation 332 Joinder of real and personal actions 333- Action affecting personalty 334 Actions on contracts — In general 335 Under statute 336- In California 337 Actions for tort — In general 338 Under statute 339' Actions for penalties or forfeitures — In general 340 Actions to which applicable 341 Exceptions to the rule 342: Actions by and against persons in representative capacity — In general 343 ■ In California 344 Actions against public officers 345 Actions against cities, counties or towns — In general 346 In California 347 Actions made local to place of accrual 348 Actions to be tried where subject-matter situated — In general 349^ — • — What actions included 350' Ancillary and incidental actions 351 Right to sue in more than one county — Election 352 Joinder of causes suable in different counties 353 Laying venue 354 Objections and exceptions — In general 355 In California 356' Estoppel and waiver 357 CHAPTER XVL PLACE OF TRIAL — AS DETERMINED BY DOMICILE OB RESIDENCE OF PARTIES. In General 358 In California 359' As to rights of plaintiffs — In general • 360 Coplaintiffs 361 Right to sue in different counties — Election 362. JONSPECTUS. XV Section As to rights of defendants— In general 363 Makers and indorsers : Principals and sureties 364 Materiality of resident defendant 365 Misjoinder — In general 366 Dismissal as to resident defendant 367 Joinder of real and personal actions 368 ' ' Domicile " or " residence ' ' for purposes of action— In general 369 In California 370 971 In other states "^ Of corporation — In general 37^- In California 373 In other states — Colorado 374 Idaho . . . Nebraska 375 376 Oregon ^'_' South Dakota 378 Utah "^"^ Washington 380 Nonresident and absconding defendants— In general 381 . A nonresident plaintiff 38- Illustrations of doctrine ^^^ California doctrine 385 Foreign corporations Illustrations of prevailing doctrine 386 Objections and exceptions — In general Estoppel and waiver CHAPTER XVIL CHANGE OF PLACE OF TRIAL. In general ^^^ Definitions and distinctions ^^^ Power of court to change place of trial— In general 391 Application for change of place of trial— In general '. . 392 As to time of application 303 As to manner of application 3! 4 . As to effect of application "^^•*_' As to causes of action to which applicable 3!>(> Specific instances 3'^ ' Who may apply for change — Plaintiffs 308 Defendants— In general 309 Codefendants must join "^'^^^ Affidavit of merits— In general -^"^^ Form and sufficiency of affidavit •^"- Amendment of affidavit of merits -^"3 By one codel'endant for all Causes or grounds for change of place of trial -l^-^ XVI CONSPECTUS. Section Counter-motion to retain cause 406 Demand for change of place of trial 407 Form and statement in demand — In California 408 ■ In New York 409 Affidavits — 1. Where ground nonresidence — Defendant's affidavits.... 410 Plaintiff's affidavits 411 Association or corporation — In California 412 Plaintiff 's affidavits 413 2. Bias, partiality and prejudice — Moving affidavits 414 ' — Amount of bias, partiality or prejudice necessary 415 Counter-affidavits 416 3. For convenience of witnesses — Moving affidavits 417 Counter-affidavits 418 Application can be made when 419 Discretion of court 420 4. Disqualification of judge — Supporting affidavits 421 In California 422 (1) Party to or interested in action 423 What interest disqualifies 424 (2) Eelationship by affinity or consanguinity 425 Party includes whom 426 Eule for determination of relationship 427 (3) Former counsel in case, etc 428 (4) Bias and prejudice of presiding judge 429 (5) In cases against reclamation districts, etc 430 Hearing and determination of application for change 431 Order — Denying application for change 432 — Appeal and mandamus 433 Granting application for change 434 Transfer of cause — In general 435 Procedure and practice 436 CHAPTER XVIIL REMOVAL OF CAUSE. In general 437 A statutory proceeding 433 Restrictions on removal — State and federal „ . . 439 Right of removal 44O Power of removal 44I Persons who may remove action 442 Time of application for removal — In general 443 On ground of prejudice or local influence 444 From what court • 445 To what court • 445 Grounds of removal — In general 447 1. Diversity of citizenship 443 CONSPECTUS. XVU Section 2. Separable controversy 449 ■ - 3. Prejudice or local influence 450 -■ 4. Denial of civil rights 451 5. Actions in which federal question involved 452 6. Actions against public officers, etc 453 Effect of change in parties after removal 454 Amount in controversy as affecting removal 455 Procedure to remove — In general 456 1. Notice of petition and bond 457 Purpose and suflBciency of the notice 458 2, Petition for removal — In general 459 (1) Averments as to amount in controversy 460 (2) Averments as to diversity of citizenship 461 (3) Averments as to alienage 462 (4) Averments as to separable controversy 463 (5) Averments as to prejudice and local influence 464 . (6) Averments as to denial of civil rights 465 (7) Averments as to federal question 466 Verification of petition for removal 467 Amendment of petition for removal 468 3. Bond for removal — Requisites and sufficiency of 469 4. Filing bond and petition— Sufiiciency of proceeding 470 . Questions of fact— For federal court 471 Questions of law — For state court 472 5. Filing certified copy of record in federal court 4/3 6. Time to plead in federal court— Nature of plea 474 Remand of cause — In general 4 ^5 On whose motion — Court 's own motion. 476 On motion of party 477 Grounds for remand — In general 4(^8 Causes remanded when 4<9 Causes not remanded when 480 Time of remand '^^^ Costs on remand PART II. ACTIONS. CHAPTER I. GROUNDS OF ACTION AND CONDITIONS PRECEDENT. In general *^' Action distinguished from the pleading in an action 484 Action commenced when 485 Action deemed ended when 486 XVm CONSPECTUS. Section Condition precedent to action — In general 487 Arbitration 488 ■ Conciliation 489 Demand and refusal — In general 490 SuflSciency of demand and objection 491 When demand not necessary 492 Notice 493 Tender 494 Sufficiency of averments of 495 Acts and omissions constituting cause of action — In general 496 Act of God 497 Acts done with consent — Volenti non fit injuria 498 When principle does not apply 499 Breach of contract 500 Breach of trust 501 Conspiracy not executed 502 Criminality of act 503 Damages incident to public improvement or work 504 Declaration of right without other relief — In general 505 Exceptions to the rule 506 English practice 507 Destruction of property to prevent the spread of fire 508 Exercise of lawful rights in use of property 509 Exercise of rights with bad intent 510 Fraud without injury 511 Illegal or immoral contracts 512 Inducing breach of contract 513 California doctrine 514 Procuring payment to self of money known to belong to another 515 Public injury .• 516 Perjury and subornation of perjury 517 Eight of action as dependent upon relative values 518 Trivial injuries not invading fundamental right 519 Frivolous and collusive actions 520 Unnecessary and vexatious actions 521 CHAPTER n. CHARACTER OR NATURE OF, AND FORMS OF, ACTIONS. Tn general 522 Distinctions abolished — New cause of action not created 523 ■Classification according to nature— ^Real, personal and mixed actions... 524 Actions ex contractu and ex delicto 525 Actions on express and implied contracts .-. . 526 JOetermining character of action — Relief demanded 527 CONSPECTUS. 2ax CHAPTER III. THEORY OF THE CASE. Section In general ^'-^ As to nature of ' * theory of the case " 529 As to theory of court ^^^ Counsel 's theory of the case — In general 531 Necessity for 53- Nature of action and relief entitled to 533 Effect of wrong theory is to defeat action 534 CHAPTER IV. ELECTION OF REMEDIES. m general 535 Definition and nature of election 536 •Classes or kinds of remedies, as to election 537 Alternative and conflicting remedies 538 Concurrent remedies — Definition, origin, nature 539 Concurrent and nonconflicting remedies : Illustrations 540 When election of remedies may be required 541 What constitutes election of remedies 542 Time when election to be made — Notice of election 543 Conclusiveness of election of remedies — In general 544 Abandonment or withdrawal of election 545 Mistake in remedy pursued 546 Application of doctrine of election — In general 547 Acceptance of assets and assumption of debts of partnership. . . . 548 Approbating and reprobating 549 Attachment and replevin 550 Common-law and statutory remedies 551 Continuing nuisance and trespass 552 Contract — In general 553 Conditional sale 554 Contract and fraud 555 Contract and tort 556 Benefit received necessary to election 557 Corporation without franchise, etc 558 — '■ — Cotenant excluded from property 559 Damage to real property 500 Death from negligent or wrongful act — Common-law rule 561 Under statute: Election 562 Deposit wrongfully paid to another 563 Encroachment upon land: Upon rights in street or highway 564 Ex contractu and ex delicto actions 565 Landlord and tenant 566 Law and equity 56 • XX CONSPECTUS. Section Master and servant 568 Mortgage and note 569 Passenger injured through negligent or wrongful act 570 Pretermitted children , . 57 j Principal and agent 572 Property exempt from debts — Particular obligation 573 Purchaser at judicial or execution sale 574 PART III. PARTIES TO ACTIONS. CHAPTER L IN GENERAL. Parties to an action — Who are 575 Who are not parties 576 Who may not be parties 577 In legal actions 578 In suits in equity 579 Procedural codes adopt doctrine of equity 580 Cause of action and what it includes 581 Actions ex contractu and ex delicto 582 CHAPTER II. PARTIES PLAINTIFF — REAL PARTY IN INTEREST. Code provision 5g3 Assignment of claim 584 Court construction — Reason assigned 58.> Who is real pai ' y in interest 586 When promise is for benefit of third person 587 CHAPTER IIL PARTIES PLAINTIFF — IN ACTIONS EX CONTRACTU. Plaintiff 's relation to contract — How may arise 588 Entire cause of action must be represented by plaintiff 589 Bringing in new parties 590, Joinder of plaintiffs — In general 591 Death or refusal to join 592 Community of interest — Test of _ 593. Married woman to be joined with husband — Exceptions 594 Numerous parties 595, Executors and administrators 596. CONSPECTUS. XXI Section Holders of title under common source ^^"^ Joint owners of chattels ^9* Joint tenants and tenants in common 599 Mortgages and mechanics' liens — Foreclosure 600 Partners 60^ Persons authorized by statute 602 Principal and agent "03 Promissory notes — Plaintiffs in actions on 604 Quo warranto — Usurpation of franchise 605 Usurpation of office 606 Sheriff— Action by 607 State or United States — Actions by 608 Suits against fire departments — In California 609 Sureties as plaintiffs 610 Trustees of an express trust — In land: Real party in interest 611 In "thing in action," etc.: Real party in interest 612 CHAPTER rV. PARTIES PLAINTIFF — IN ACTIONS EX DELICTO. In general ^^^ Joinder of parties plaintiff 614 Injury to and conversion of personal property 615 Injury to real property — In general 616 As to possession or title giving right of action: Illustrations 617 • Action by tenant 618 Action by tenant for years or life-tenant 619 Joinder of remainderman and tenant 620 Injuries to the person 621 Injuries to married women — In general 62^ Under California Code 623 No limitation as to kinds of actions 624 Injuries to minor child or servant — Action by parent or master 625 Action by minor or servant 6^6 Real and mixed actions — Ejectment 627 Seduction : Action for — At common law 628 Under procedural codes — In general 629 By parent, guardian or master 630 By unmarried female 631 CHAPTER V. PARTIES DEFENDANT — ACTIONS EX CONTRACTU, EX DELICTO, AND SUITS IN EQUITY. In general — Plaintiffs can not be 632 At common law 633 Under procedural codes — In general 634 Xxii CONSPECTUS. Section Joinder of defendants — In general 635 Persons who may be joined 636 Persons who must be joined — In general 637 Interest in or title to property 638 Persons necessary to complete determination 639 Grounds for omitting or dispensing with parties defendant 640 Making defendants persons refusing to join as plaintiffs 641 Annulling patent to land 642 Assessors — In actions against 643 Associations or unincorporated societies 644 Political parties 645 Breach of contract 646 Bringing in new parties — In general 647 Necessity for and grounds of 648 Jurisdiction and authority 649 Mode of bringing in 650 Common or general interest 651 Coparceners 652 Corporations 653 Decedent 's personal representative 654 Ejectment 655 Equity suits 656 Executors and administrators 657 Fictitious parties defendant 658 Fraud 659 In actions to determine conflicting claims to real property 660 Infringement of patents 661 Injunction 662 Injury or death — Of minor child or ward 663 Of person not a minor 664 Injury to property caused by negligent or wrongful act 665 Interpleader — Conflicting claimants 666 Intervention — In general 667 Actions in which authorized 668 Grounds for and time of intervention 669 Application for leave to intervene: Proceedings on 670 Rights and liabilities of intervenors 671 Proceedings after intervention ^ 672 Joint tenants 673 Joint tort-feasors 674 Legacy charged on land 675 Married women — In general 676 In actions ex contractu 677 In actions ex delicto " 678 Minors or infants, insane and incompetent persons 679 Misjoinder of defendants — In general 680 In suits in equity 681 CONSPECTUS. XXlll Section Mortgage and mechanics ' Hen foreclosure 682 Nonjoinder of defendants — In actions at law 683 In suits in equity 684 Time and mode of objecting 685 Persons severally bound on same obligation or instrument 686 Persons not bound 687 Principal and agent 688 Quo warranto — Parties plaintiff and defendant 689 Receivers 690 Specitie performance — Constructive trust 691 Striking out defendants — In general 692 Persons who may not be dismissed 693 Substitution of parties — In general 694 Persons entitled to be substituted 695 Grounds for substitution 696 Application for substitution : Proceedings thereon 697 Mode of substitution of parties 698 Proceedings after substitution 699 Tenants in common '^^ Tort actions ''^^ Trespass ' ^- Trustees "^^^ PART IV. GENERAL FUNDAMENTAL PRINCIPLES AND RULES OF PLEADING IN CIVIL ACTIONS. CHAPTER I. GENERAL PRINCIPLES AND RULES. In general '04 As to plan and scope 705 Definition of pleadings 706 Reformed procedural pleading — Development of 707 Pleadings allowed 708 Forms and rules of pleading — How prescribed 709 Entitling pleadings 710 Formality of statement 711 Sufficiency of statement 712 Matters judicially noticed 713 Matters of conclusion — Of the pleader 714 Legal conclusions 715 Pleading according to legal effect 716 Pleading matters of evidence 717 XXIV CONSPECTUS. Section Pleading facts within knowledge of other party 718 Pleading facts not within knowledge of pleader 71 f> Pleading matters of record 720 Pleading written instrument 721 Foreign document or language 722 Pleading account 723 Pleading judgment 724 Pleading conditions precedent 725 Pleading statute of limitations 726 Pleading private statute, municipal ordinances, etc 727 Pleading surplusage and unnecessary matters 728 Pleading description of real property 72ft Adopting allegations by reference 730' Ambiguity — Nature of vice and remedy 731 Argumentativeness and inference 732 Certainty, directness and particularity 733 Conclusiveness of admission or allegation against party 734 Consistency and repugnancy — Negative pregnant 735 Distinctness and positiveness 736 Disjunctive and alternative allegations — Hypothetical pleading 737 Erasures and interlineations 738 Falsity in pleading — Sham answers 739' Impertinence and scandal 740 Irrelevancy and redundancy 741 Language used — Abbreviations, bad gi-ammar, clerical errors, etc 742 Material allegations not controverted — Deemed true 743 Omission to plead — Presumption therefrom 744 Pleading bad in part — Effect of 745 Variance and defects — What are and effect of 746 Material and immaterial variances 747 Illustrations of material variances 748 Illustrations of immaterial variances 74& Advantage of variance — How taken 750- CHAPTER II. CONSTEUCTION OF PLEADINGS. In general 751 General principles of construction 752^ Meaning of words and rules of grammar • 753 Popular meaning of words and phrases 754 Illustrations of meaning of words and phrases 755 Ambiguous words and phrases 756 Averments in pleading considered, only , 757 Technicalities and technical objections 758 Entire pleading to be considered 759 General and specific allegations — Clauses of sentence 760 CONSPECTUS. XXV Section Facts only to be regarded 761 Eeal intent to be effectuated 762 In Arizona 763 In Colorado 764 In Idaho 765 In Kansas 766 In Montana 767 In Nevada 768 In New Mexico 769 In North Dakota 770 In Oklahoma 771 In Oregon 772 In South Dakota 773 In Utah 774 In Washington 775 In Wyoming 776 CHAPTER III. SUBSCRIPTION AND VERIFICATION OF PLEADINGS. Subscription of pleadings — In general 777 Sufficiency of 778 Verification — In California 779 Complaint based upon written instrument 780 Defense founded upon written instrument 781 Petition for perpetuation of testimony 782 Construction of statute 783 As to when answer may be verified 784 By whom pleadings may be verified — In general 785 By one of several parties 786 By agent or attorney — In general 787 Agent having possession of note sued on, etc 788 By attorney — In general 789 Grounds of belief 790 Client absent from county, etc 791 By person not a party, agent, etc 792 By guardian or his attorney 793 By officer or manager of corporation 794 Before whom verification may be taken 795 Verification on information and belief 796 Defective verification 797 SufBciency of verification 798 Omission to verify — Effect 799 Subscription of verification 800 Waiver of objection to verification 801 XXVI CONSPECTUS. CHAPTER IV. FORMAL PARTS OF PLEADING. Section In general 802 Caption or title 803^ No part of complaint 804 Omissions — Mistaken designations 805 Name of court 806 Name of county — Laying venue or place of trial 807 Name of parties — In general 808 Mistake in 809' Known and unknown parties 810 Titles to be avoided 811 CHAPTER V. COMPLAINT — GENERAL PRINCIPLES. I. Formal Parts and Commencement. In general SI? Formal parts of body of complaint 813 Averment of character and capacity 814 Action by administrator or executor 815 Illustrations of sufficiency and insufficiency of allegations.. 816 Action by agent 817 Action by assignee , . . . 818 Action by company or partnership 819 Action by corporation 820 Action by guardian 821 By general guardian 822 Action by trustee of an express trust 823 Permission to sue 824 II. Statement of Cause of Action. In general 82.> Facts that must be stated 82(> Alleging facts upon information and belief 827 Propriety and sufficiency of 828 Separate statement of causes of action 829 Single cause of action stated in two counts 830 Joinder of causes of action — In California 831 ■ Causes of action which can be joined 832 Causes of action which can not be joined 833 Action on contract and for injury to person or property, etc. 834 Action for breach of contract and for conversion, etc 835 Splitting causes of action or demands — In general 836 In actions ex contractu 837 In actions ex delicto 838 Applications and illustrations of the rule 839 CONSPECTUS. XXV 11 Section In action of debt— In general ^^" Nature of and when lies ^'^ ^ Indebitatus assumpsit or common counts 84-2 In action for breach of contract— In general 84S Pleading the contract — Methods of 844 According to legal effect 845 Alleging contract in writing 846 Allegations as to time 847 Form of action — Assumpsit and common counts 848 Allegation as to promise 849 Allegation as to consideration 850 Executed or past consideration — Moral obligation 851 Agreement under seal 8o2 Alleging performance — Conditions precedent 853 According to intent of parties 854 "Where plaintiff bound to do certain acts 855 Alleging nonperformance — Excuse and waiver 85t> Alleging concurrent acts — In general 857 Mutuality at inception or on contingency 858 Notice and request 85i> Tender of or readiness and willingness to perform 860 Alleging breach of contract — In general 861 Sufficiency of allegation— Surplusage 862 Allegation of special damages 863 In actions for injuries resulting from negligence— In general 864 Negligence of plaintiff preventing recovery 865 Allegation as to plaintiff being without fault 866 Allegations as to various matters °" * III. Demand of Belief. In general — California Code requirement 868 Alternative relief 869 Amount of money or damages 870 Legal and equitable relief 871 CHAPTER YT. DEMURRER IN GENERAL. I. Defendant's Demurrer. In general 872 An objection merely — Distinguished from a motion for judgment 873 Speaking demurrers 874 As to time when demurrer to be filed — In general 87f Curing defects by answer 876 Waiver of objections — By failure to demur 877 — ■ — By failure to obtain ruling on demurrer 878 By answering over 87l> XXVlll CONSPECTUS. Section Mode of taking objection — In general 880 Stating facts in demurrer 881 What admitted by demurrer 882 When demurrer will lie 883 When demurrer will not lie 884 What demurrer reaches — Defects in prayer 8H~> Kinds of demurrers — In general 886 General demurrer 887 Breach of contract — Nonpayment 888 Special demurrer — Common-law rule 889 Testing complaint by demurrer — In general 890 Sufficiency and effect of demurrer 891 Averments in pleading alone considered 892 Action against garnishee 893 Action for recovery of personal property 894 Action for removing fixtures 895 Action to annul homestead 896 ■ Action to contest right to purchase state lands 897 Action to contest right to mining claim 898 Action to determine right to patent 899 ■ Allegation of damages in action for personal injuries 900 Alleging mutual mistake 901 Allegation negativing presumption of payment 902 Allegation of probate of will : Ownership 903 Alleging unilateral contract 904 Failure to allege performance of conditions precedent — Demand. 905 Injunction — Charging interference with franchise 906 Reformation of instrument — Failure to include property 907 Specific performance of contract to convey — Execution and acknowledgment of contract 908 Trust involved — Constructive or resulting 909 Will contest — Allegations necessary 910 II. Plaintiff's Demurrer. In general 911 CHAPTER VIL DEMURRER — GROUNDS OP. I. Defendant's Grounds of Demurrer. ■ Grounds of demurrer to complaint — In California 912 Grounds of demurrer must be specified 913 No other grounds of demurrer ... 914 1. Want of jurisdiction — In general 91.3 Construction and application of statute. .',..... 916 2. Want of legal capacity to sue — In general 917 Company — Membership in 918 CONSPECTUS. xxix: Section Corporation — Incorporation 919 County — Kejection of claim 920 Foreign state — Official representative 9-1 Guardian of infant — Allegation of appointment 922 Note held in trust— Power to sell, not collect 923 Receiver — Allegation of appointment 924 Special administrator — Want of capacity to sue 925 Statement of grounds— Facts showing incapacity 920 Waiver of objection — Failure to demur 927 3. Another action pending between the same parties — In general. 928 Vice must be apparent . - - 9-9 Foreclosure — In Nevada 930 • Former adjudication 93 1 Quieting title — Ejectment pending 932 Receiver 's judgment — Action by party 933 When demurrer lies 934 4. Defect in or misjoinder of parties — In general 935 Nonjoinder of parties — Parties plaintiff 930 Parties defendant 93 1 Objection taken how and when 938 Stating grounds of objection 939 Misjoinder of parties— In general 940 Parties plaintiff 941 Parties defendant 942 Form of demurrer 943 5. Misjoinder of causes of action: Failure to separately state 944 Demurrer lies when — In general 945 Conversion of chattels — Damages and restitution 946 , Claim sued in debt — Fraudulent conversion only 947 Husband and wife — Prayer against husband 948 Injuries to the person — Injuries to the property 949 Mandamus and injunction — Continuous statement of facts 950 Penalties — Separate offenses 951 Recognizance sued on — Application of property under trust deed 952 Separate liens for taxes or assessments — Joinder (Mior. 953 . — Sheriff sued in case — Trover and conversion 054 Trespass — Damages and value of property ^^'^'> Causes of action not separately stated 950 Joint demurrer — When sufficient 95* Objections taken how and when — In general 95S By general demurrer — Not stating grounds of ol>jecti(iii 059 By special demurrer — Stating grounds of objection. . . . 960 Waiver of objections 961 . 6. Complaint not stating facts constituting cause of action — In general 9G2 XXX CONSPECTUS. (Section Demurrer admits what 9(53 Demurrer 's effect 964 Action coininenced in wrong county 905 Action prematurely commenced — Objection taken at trial 966 Action founded on fraud — Failure to allege facts 9(57 -• Amended complaint — Departure from original complaint 968 Attachment, alternative for body of defendant — Action against sheriff 969 Bill of exchange — Joint demurrer 970 Claim against estate — Failure to allege presentation... 971 Cloud on title — Failure to present cause 972 Company or copartnership — Failure to allege member- ship in 973 Date of creation of obligation — Illegal date assigned.. 974 Defective complaint — When vulnerable to 975 Defect of parties — Euling pro forma 976 Different from statutory terms used — Sufficiency 977 Enforcement of judgment — Laches 978 Exhibits of matters of substance — Demurrer lies when 979 Foreclosure of mechanics' lien — Conclusion of law.... 980 Guaranty basis of action — Failure to allege breach. . . . 981 Inferential statement — Sufficiency after judgment.... 982 Lien foreclosure — Want of dates 983 Mortgage foreclosure against decedent 's estate — Pres- entation of claim 984 Performance of condition precedent — Failure to aUege 985 Quo warranto^Relator 's right to office 986 Res adjudicata — Not available 987 Securities not promissory notes — Waiver 988 Services of physician — Lack of diploma 989 Specific equitable relief — Remedy at law 990 Stamp on note — Failure to allege 991 Statute of frauds — Presumption in writing 992 Statute of limitations — -Excusing delay 993 Statutory penalty — Rival ferry 994 Trespass, action for — Plaintiff 's failure to comply with statute 995 Undertaking — On attachment 996 Penal bonds 997 Objections when and how taken — In general 998 Statement of grounds 999 7. Complaint ambiguous — In general 1000 Demurrer lies when — Pointing out vice. . . .- 1001 Action in ejectment 1002 Clerical errors 1003 Action on official bond ." 1004 CONSPECTUS. XXXI Section Contradictory allegations 100-5 Items of account not set forth 1006 . Notes of partnership — Clerical error 1007 Time when services rendered 1008 8. Complaint unintelligible I'^Oft 9. Complaint uncertain — In general 1010 Demurrer lies when — In general 101 1 . Action for services — Failure to set forth items 1012 Action on account — Items not set out 1013 Clerical error 101* Contradictory allegations ^015 Damages for conversion — Failure to describe property. 1016 Divorce — Community property 1017 Foreclosing assessment-lien — Failure to set out date of lien 101« Inducement to contract— Setting out 1019 Items of damages not stated — Injury to premises and business lOlO Sale — Purchase from agents 1021 Uncertainty of description — Conjunctive demurrer.... 1022 Statement of grounds of objection 1023 II. Plaintiff's Grounds of Demurrer. In general 10...4 •Grounds of demurrer 1025 No other grounds of demurrer 1026 Sufficiency of demurrer — In general 1027 In the language of the statute 1028 Where whole answer attacked 1029 Joint demurrer 1030 •Sustaining demurrer — Effect of 1031 Waiver of objection — Failure to demur, etc 1032 CHAPTER VIII. ANSWER — IN GENERAL: DEFENSES, DENIALS, ETC. In general 1033 Answer defined 1034 Defense defined — At common law 1035 Under procedural codes 1036 Answer — In general 103/ Inquiries of counsel before answering 1038 Formal parts of answer 1039 Contents of body of answer — In California 1040 Formal defects to be objected to by answer when 1041 Insurance company's answer — Peril excepted 1"12 Time in which to answer — After dcmuiier disposed of imj XSXU CONSPECTUS. Section Id absence of demurrer 1044 Answer by guardian or attorney 1045- Joint answer — Effect of 1046- I>ef enses — In general 1047 As to manner of plea 'ling defenses 1048 Inconsistent defenses — California rule 104&- * ' Inconsistent defenses ' ' defined — ^Limitation of rule 1050 Omission to plead defense — Effect of 1051 Sham defenses — Striking out 1052^ Several grounds of defense — California rule 1053- Special defenses — Confession and avoidance 1054 Beason for the rule 1055 Denials — In general 105& Immaterial issues need not be denied 1057 Kinds of denials: As to matter — SufBcieney of denial 1058 Geneial denials — What provable under 105^ Specific denials — As to what constitute; SufBcieney of 1060 Kinds of denials: As to manner of pleading — In general 1061 Conjojoetive denials — Negative pregnant 1062 Literal denials, or denials in langua ge of complaint — Nega- tive picgsant 1063 On information and belief — In general 1064 As to "belief" 1065 As to " information " 1066 A ; to form of denial 1067 Bule in California, New York and Ohio 1068 ninstrations of insufBcient forms of denial 1069 As to raattera presumably within knowledge 1070 CotpoEations — ^Aets of agents 1071 B^e-oUeetion and belief — ^Personal acts and transactions 1072 Damagee 1073 Judgment 1074 General denial allowed when — In general 1075 Of part of complaint 1076 ■ Ef eet and form of denial — ^In general 1077 Form and snffideaejr of denial 1078 Defective denials — ^Effect of 1079 Denial of eonditioss preeedent — ^Excuse for nonperformance 1080 Denial of deed — On information and belief 1081 Denial of demand 1082 Denial of fiand — ^In general 1083 SaSaaeaej of 1084 Denial of eonrhmions — Of the pleader and of legal condusionB. . lOSo- Ifatteis that most be pleaded ; 108^ Skam, irreievaBt and fiivolotts denials and answers — In general . .- . 1087 Mattera of etnnplaint not well pleaded .- 1088. Amount of damages — Denying 108^ CONSPECTUS. XXXIU (Section Evasive denials and answers 1090 Admissions in answers — Effect of 1091 Answer not evidenced for defendant 1092 CHAPTER IX ANSWER (continued) — PLEAS: GENERAL AND SPECIAL. In general 1093 Pleas in abatement 1094 Pleas in avoidance 1095 Pleas in bar 1096 Special pleas — As to effect of 1097 Accord and satisfaction — Essential averments 1098 What is and when allowed 1099 Another action pending — As to essential allegations : Identity of cause and parties 1100 Discontinuance of, effect: Foreign action pending 1101 "What must be shown 1102 When defense does and does not lie 1103 Arbitration and award — Essential allegations: Performance.... 1104 Bankruptcy or insolvency — Essential averments 1105 Presentation of papers — Voluntary assignment 1106 What amounts to composition — Pleading 1107 Credit unexpired — Essential allegations 1108 Death — Action does not abate when 1109 After verdict 1110 Civil death 1111 Of sole plaintiff — In general 1112 Before trial 1113 Before argument 1114 One of several plaintiffs — Husband and wife 1115 Of sole defendant — In general 1116 Before or after judgment 1117 One of several defendants — In general 1118 Death of defendant wife 1119 Of appellant 1120 Suggestion of death 1121 Duress and menace — As to what amounts to 1122 In California : Menace 1123 Essential allegations 1124 Former judgment — Dismissal on merits 1125 Allegations essential — As to judgment 1126 As to parties 1 127 Effect of former judgment — In general 1128 Where no evidence was offered 1129 When a bar 1130 "WTien not a bar 1131 XXXIV CONSPECTUS. Sect ion When an estoppel 1132 Foreign adjudication — Essential allegations 1133 Fraud — Essential averments — False representations 1134 Infancy of defendant — Essential allegations 1135 Marriage — Of plaintiff — Essential allegations: Effect of divorce. 1136 Of defendant — Effect of: Charging separate estate 1137 Arbitration and award US'* Misjoinder of parties 1139 Misnomer — Must be pleaded 1140 Nonjoinder of necessary parties — In general 1141 Objection — How and when must be taken 1142 Tenants in common 1143 Payment — How and when must be pleaded 1144 By note or check — Acceptance of negotiable paper 1145 Release — How pleaded, and effect of 1146 Statute of frauds — Essential averments 1147 Corporations — Acts ultra vires 1148 Statute of limitations — California statute: "Action" 1149 ■ Application of statute 1150 Construction of answer 1151 Construction of statute 1152 Essential allegations 1153 Statutes of different states : Rule 1154 Suspension of remedy 1155 When action commenced 1156 When cause of action accrues 1157 Tender — Plea of : When and how made 1 1 58 Joinder of issue on plea of 1159 -^ — Want of capacity to sue — Alien enemy 1160 Corporations — Consolidation 1161 Denial of incorporation 1162 ^Dissolution ' 1163 Estoppel — In general 1164 How availed of : Pleading 1165 Essential allegations 1166 Want of consideration — How pleaded 1167 Essential allegations 1168 Want of jurisdiction — Essential allegations 1169 CHAPTER X. ANSWEE — NEW MATTER: COUNTER-CLAIM, SET-OFF, CROSS-COMPLAINT. In general _ U^q Analogy between the present and the former system 1171 Exceptions to the rule 117'> Matters within the rule and required to be set up 1175 CONSPECTUS. XXXV Srction Xow maUor — T)ofinition of ^ ''■* Wb:it constitutes — In genoriil ^ ^ ■ * Matter not in discharge or avoidance ll''> Prnyer and verification to answer H ' ' Counter-claim — Definition and distinction H^"^ — ■ — Nature and essential conditions 1 1 ' ^' "Transaction" defined ll*"^ Arising out of contract ^^^^ Based on contract in independent transaction 1182 Must be specially pleaded— Essential allegations 1183 May or may not be set up when — In general 1184 Joint and several claims ^185 Election of remedy H^'' Judgment on in excess of plaintiff's demand 1187 Kecoupment — As to generally 1188 Set-off— In general 1^^-^ Definition and nature: Pleading 119*^ Equitable defenses and sets-off 1191 Cross-complaint — In general 1^92 Definition of l^-^^' Nature of cross-complaint 119-t 1 1 Qt In Montana ^-^"■-' In California — Code provision 119<> Procedure on filing ^1^' What is, and what is not, a cross-complaint 119S CHAPTER XL AMENDMENT OP PLEADINGS. In general ^^^^ In California — Statutory provisions 1200 Amended pleading's relation to original 1201 Time of amending ^-O'-- Manner of amending — New cause not to be stated 1203 Amending complaint 1'-*''*^ Amending answer 1205 Amending prayer 120b Amending as to damages — Complaint or prayer 1207 Amending to conform to proof 1208 Refusing leave to amend 120i> Procedure upon amending complaint — California practice 1210 Demurrer to amended complaint 1211 CODE PLEADING AND PKACTICE PART I. 1 GENEEAL PRINCIPLES. CHAPTER I. introductory. 1. In General. § 1. Purpose and plan of work. § 2. Remedies generally. 2. Action and Cause of Action. § 3. Action defined. § 4. Divisions of actions. § 5. Cause of action — Nature and elements of, § 6. Damage without wrong — Damnum absque injuria. 3. Special Proceedings Not Actions. § 7. Definition of special proceeding. § 8. Illustrations as to what are special proceedings. 4. Provisional Remedies. § 9. What proceedings are. § 10. In what consist — Illustrations. I Code PI. and Pr.— 1 §§1,2 CODE PLEADING AND PRACTICE. [Pt. I, 1. In General. § 1. Purpose and plan of work. The purpose of this work is to furnish the profession with a short and reli- able treatise on Code Pleading and Practice, founded upon the California Code of Civil Procedure, adapted to use in, and prepared with reference to the especial wants of the Pacific Coast States, Oklahoma, and the two Da- kotas ; but adapted to use in all other states having simi- lar codes and procedure. The method of treatment will be in the nature of A His- tory of a Civil Action, step by step, as the action pro- gresses from start to finish; something on Jurisdiction, including concurrent and conflicting jurisdiction; with especial attention to that important matter in all orderly and successful litigation, the Theory of the Case, which determines, — also to be treated — the Form of Ci^dl Ac- tion, whether regarded as at law or in equity. Especial attention will also be given to Parties to an Action — plaintiffs, defendants, intervenors ; to Venue and Place of Trial, and to Removal of Cause to Federal Court; to the Manner of Commencing a Civil Action — Process ; to Pleadings, including Complaints, Answers, Counter- claims, Affidavits, Demurrers and Motions. Especial at- tention to and full treatment of, wdll not be given Special Proceedings and Provisional Remedies, they not falling v.'ithin the scope of this treatise. § 2. Remedies genee.u.ly. Redress for a wrong, or prevention of an injury, is secured through application to a competent court having jurisdiction of the subject- matter and of the parties, by the person or persons en- titled thereto, in an action or proceeding against the offending person or persons, in the form or manner pre- scribed by law.^ To secure the enforcement qf all rights, the redress of all giievances, and the prevention of all 1 Kerr's Cyc. Cal. Code Civ. Proc, § 20. ' • 2 Chl.] ACTION AND CAUSE OF ACTIO::. §3 wrongs, under the California Code of Civil Procedure, and under all codes following that course of practice or civil procedure, the various remedial proceedings in a court of justice are divided into : 1. Actions ; 2. Special Proceedings, and 3, Provisional Remedies. Under many of the codes, however, including the California Code of Civil Procedure, Provisional Remedies are not recog- nized as a separate di\ision or class, being regarded as merely incidental to an action. ^ 2. Action and Cause of Action. ^ 3. Action defined. An action is a proceeding in ju- dicio, in the ancient sense of that phrase ; that is, before a court and between parties, one or both of whom seek a judicium, in the modern sense of rendering a judgment or entering a decree. Under Code Practice an action is the means or method of pursuing and recovering one's rights, redressing a grievance, or preventing a wrong, and consists of a proceeding instituted by one or more persons against another person or persons.^ It may be 2 See Kerr's Cyc. Cal. Code Civ. him in new and somewhat awk- Proc, § 21. ward terms (Pomeroy on Pleading 1 Kerr's Cyc. Cal. Code Civ. and Practice, § 453)." I know of Proc, § 22. no such work as "Pomeroy on A different view has been ex- Pleading and Practice," and a dili- pressed by Mr. Commissioner gent search has failed to disclose Smith, in the case of Frost v. Wit- the present or former existence ter, 132 Cal. 421, 426, 84 Am, St. of such a book. If reference is Rep. 53, 64 Pac. 705, in which he intended to be made to John Xor- confounds "action" with "cause ton Pomeroy's "Code Remedies: of action," notwithstanding his Remedies and Remedial Rights," learned and technical discussion § 453 of the original edition, § 347 of the subject, applying to the for- of the fourth edition by Prof, mer characteristics which attach Bogle, the authority cited does not to the latter only. The learned warrant the conclusion of Corn- commissioner seems to have been missioner Smith, being a flat- misled into his error through re- footed authority against his pro- liance upon some obscure text- nunciamento. writer, for he says: "This is in The above case stands alone, so accordance with the view of Mr. far as I am able to discover, ex- Pomeroy, though expressed by cept for Commissioner Smith's § 4 CODE PLEADING AND PRACTICE. [Pt. I, either ''at law" or "in equity," as those branches of the laAv are administered under the codes, according to the character of the wrong or injury to be remedied or redressed, and the nature of the proceeding required to secure that end. According to the Civil Law: Actiones compositae sunt, quibus inter se homines disceptarent- — actions are formed as the means by which men may liti- gate with one another, and the same is true under code procedure. As commonly used, the word action — whether on the law side or the equity side of the court — includes all the formal proceedings in a court of justice attendant upon the demand of a right, or the prevention or redress of a wrong, made by one or more persons against another person or persons, including an adjudication upon the demand and its enforcement or denial by the court.^ Any ordinary proceeding in a court of justice by means of which one person prosecutes another for the enforce- ment or protection of a right, or for the prevention or redress of a wrong, involving pleading and process, is an action;^ where the remedy is sought by an application directly to the court for a judgment or order, though in- volving a "hearing" in court, is not an action, but a Spe- cial Proceeding.^ § 4. Divisions of actions. There are several general division of actions. In the wider sense, all actions are divisible into: 1, Civil Actions, and 2. Criminal Actions.^ With the latter class of actions there will be no attempt to deal in the present treatise. Civil actions may be very declaration in the subsequent case Proc, § 1049. See Naftzger v. of Hansen v. Wagner, 133 Cal. 69, Gregg, 99 Cal. 83, 88, 37 Am. St. 71, 65 Pac. 142, in which he fol- Rep. 23, 33 Pac. 757. lowed himself in the above-cited 4Missionary Soc. of M. E. case. There are numerous adju- Church, 56 Ohio St. 405, 47 N. E. dicated cases to the contrary, both 537. in this country and in England. — 5 See, post, §•?. See, post, § 5. i Kerr's • Cyc. ' Cal. Code Civ. 2 Dig. 1, 2, 2, 6. Proc, § 24. " Kerr's Cyc. Cal. Code Civ. ch. I.] NATURE, ETC., OF CAUSE OF ACTION. §5 appropriately divided into : 1. xVctions at Law. and 2. .Vc- tions in Equity, — depending- upon whether the issues pre- sented are to be determined by the judge wdien exercis- ing his ordinary functions as a judge under the code, or v;hen exercising the chancery powers vested in the court under the simplified procedure. As thus divided, actions at law are subdivided into: 1. Actions on an Obligation, and 2. Actions for Injury - Actions on an obligation subdivide into: 1, Actions on Express Contract, and 2, Actions on Obligations Imposed by Law.^ Actions for an injury subdivide into: 1, Actions for Injury to the Per- son, and 2, Actions for Injur\' to Property.^ § 5. Cause of action — Nature and elements of. A ''cause of action" consists of three essential elements, to-wit: 1, An antecedent primary right; 2. A correspond- ing duty on the part of another, and 3. A breach of the right and duty by a person upon whom the duty rests.^ 2 Kerr's Cyc. Cal. Code Civ. Proc, § 25. :? Kerr's Cyc. Cal. Code Civ. Proc, § 26. 4 Kerr's Cyc. Cal. Code Civ. Proc, § 27. 1 CAL.— McKee v. Dodd, 152 Cal. 637, 125 Am. St. Rep. 82, 14 L. R. A. (N. S.) 780, 93 Pac. 854. CONN.— Wildman v. Wildman, 70 Conn. 700, 41 Atl. 1; Goodrich v. Alfred, 72 Conn. 260, 43 Atl. 1041. IND.— Paker v. State, 109 Ind. 47, 9 N. E. 711; Davis v. State, 119 Ind. 555. 22 N. E. 9. KAN. — Bruner v. Mar- tin, 76 Kan. 862, 123 Am. St. Rep. 172, 14 L. R. A, (N. S.) 775, 93 Pac. 165. MONT.— Dillon v. Great Northern R. Co., 38 Mont. 485, 100 Pac 960; Cohen v. Clark, 44 Mont. 151, 119 Pac 775. NEV.— Lewis v. TTyams, 26 Nev. 68, 99 Am. St, Rep. 677, 64 Pac. 126, 64 Pac. 817. N. D. — Colonial & U. S. Mortg. Co. V. Northwestern Thresher Co., 14 N. D. 147, 70 L. R. A. 814, 8 Ann. Cas. 1160, 103 N. W. 915 (dissent of Mr. Justice Young). N. Y.— Veeder v. Baker, 83 N. Y. 156; Bucklin v. Ford. 5 Barb. 393; Meyer v. Van Collen, 7 Abb. Pr. 222, 38 Barb. 230. OHIO— Clark V. Eddy, 10 Ohio Dec 539, 544. S. C— Rogers v. Mutual En- dowment Assn., 17 S. C. 406, 410; Suber v. Chandler, 18 S. C. 526, 530; Kennerty v. Etiwan Phos- phate Co., 21 S. C. 226. 53 Am. Rep. 669; Drake v. Whaley, 35 S. C. 187, 190, 14 S. E. 397. UTAH— Lawson v. Tripp, 34 Utah 28, 95 Pac. 520; Soule v. Weatherby, 39 Utah 580, Ann. Cas. 1913E, 75, 118 Pac. 883. W. VA.— Harvey v. Par- kersburg Ins. Co., 37 W. Va. 272, 13 S. E. 580. FED. — Mercantile Trust and Deposit Co. v. Roanoke & S. R. Co., 109 Fed. 3, 8. ENG.— § 6 CODE PLEADING AND PRACTICE, [Pt. I, The primary right and duty, and the wrong growing out of the breach of that duty, together constitute the "cause of action, "2 ''Cause of action," connoting the right a party has to institute a judicial proceeding, is not sy- nonymous with the phrase "subject of action," which relates to the proceedings in which the specific relief is sought, rather than to the judgment or decree against a delinquent or offending person;^ and it is likewise to be distinguished from "remedy," which connotes simply the means by which an obligation or corresponding ac- tion is enforced,"* as well as from the "relief" sought to be obtained,^ § 6. Damage without wrong — Damnum absque INJURIA. To constitute a cause of action, all the essential elements enumerated in the preceding section must be present. And a complaint or petition which fails to show the presence of all these elements touching some particu- lar right of the plaintiff, together with some definite violation of that right by the defendant for which redress may be granted,^ does not set forth a cause of action ;- because a cause of action does not arise from a damage done unless there is also a legal wrong,^ for there must Howell V. Young, 5 Barn. & C. 259, obligation, duty, or wrong of the 266, 11 Eng. C. L. 454, 457; Doug- defendant; and these combined, it les V. Forrest, 4 Bing. 686, 130 Eng. is sufficiently accurate to say, con- Repr. 933; Jackson v. Spitall, L. R. stitute the cause of action." 5 C. P. 542, 552. 3 Stewart v. Thompson, 55 Ore. See Dicey on Parties to Action, 364, 106 Pac. 640, 978. p. 8; Maxwell on Code Pleading, 4 Frost v. Witter, 132 Cal. 421, p. 97; Phillips on Code Pleading. 426, 84 Am. St, Rep. 53, 64 Pac. §§ 29-33; John Norton Pomeroy's 705; Lemon v. Hubbard, 10 Cal. Remedies and Remedial Rights, App. 471, 477, 102 Pac. 554. §§ 452 et seq. 5 Id. Hurwitz v. Gross, 5 Cal. 2 McKee v. Dodd, 152 Cal. 637, App. 617, 91 Pac. 110. 125 Am, St. Rep. 82, 14 L. R. A. i Columbus, City of, v. Anglin, (N. S.) 780, 93 Pac. 854. 12 In re Joseph's Estate, 118 Cal. 660, 50 Pac. 768; People v. Ameri- can Loan & Trust Co., 150 N. Y. 117, 3 N. Y. Ann. Cas. 251, 44 N. E. 949. See Kerr's Cyc. Cal. Code Civ. Proc, §23; Mont. Code Civ. Proc. 1895, §3472; N. C. Code (Clark's) 1900, §§ 126, 127; N. D. Rev. Codes 1899, §§5159, 5160; Okla. Rev. Stats. 1903, §§4202, 4203; S. C. Code Civ. Proc. 1902, §§2, 3. 1 Cooper, In re, 22 N. Y. 67, 11 Abb. Pr. 301, 20 How. Pr. 1, re- versing Graduates, In re, 10 Abb. Pr. (N. Y.) 357. 19 How. Pr. 136. Determination final in such cases. — See Hovey, In re, 7 Cal. Unrep, 203, 81 Pac. 1019. Committee appointed to exam- ine and license under Colorado statute. — See People v. Betts, 7 Colo. 453, 4 Pac. 42; People v. Carr, 21 Cal. 525, 43 Pac. 128. See, also, State v. Hocker, 39 Fla. 477, 63 Am. St. Rep. 174, 22 So. 721. 2 New York Cent. R. Co. v. Mar- vin, 11 N. Y. 276, 277. 3 Kerr's Cyc. Cal. Code Civ. Proc, §§ 1281, 1290. See Moore v. Boyer, 42 Ohio St. 312. 4 Compulsory arbitration not au- thorized. — Bill Relating to Arbi- tration, 9 Colo. 629, 21 Pac. 474; People ex rel. Baldwin v. Haws, 15 Abb. Pr. (N. Y.) 115, 37 Barb. 440, 24 How. Pr. 148, affirming 13 Abb. Pr. 375, note, 23 How. Pr. 107; Cut- ler V. Richley, 151 Pa. St. 195, 25 Jtl. 96; Sobey v. Thomas, 37 Wis. 568. 5 See 3 Bl. Com. 16: 3 Steph. Com. 374; Billings on Awards 3, ch. I.] SPECIAL, PROCEEDINGS — ILLUSTRATIONS. §8 ings being regulated by statute; assessme/nt of damages on laying out a public highway^ or a plank-road/ is a special proceeding and not an action; attachment to en- force judgment, as for a contempt, is a special proceed- ing;* certiorari as a writ of review,^ not a writ of error, ^'^ is not an action,^^ will not lie where there is a right of appeal or other speedy and adequate remedy by law;^- 55-65; Russell on Arbitration 112; 2 Am. & Eng. Encyc. of L., 2d ed., p. 638; 3 Cyc. 620; 5 Corpus Juris 67, §137; 2 Rul. Case Law 373, §21. 6 See Lincoln v. Colusa County, 28 Cal. 662; Grigsby v. Burnett, 31 Cal. 406; Kimball v. Alameda County, 46 Cal. 19, 23; Wulzen v. San Francisco County, 101 Cal. 15, 26, 40 Am. St. Rep. 17, 28, 35 Pac. 353. T Ransom, In re, 3 N, Y. Code Rep. 148; Fort Plain & C. Plank- Road Co., In re, 3 N. Y. Code Rep. 148; New York Cent. R. Co. v. Marvin, 11 N. Y. 276; New York, City of, Matter of, 27 N. Y. St. Rep. 188. 8 Gray v. Cook. 15 Abb. Pr. (N. Y.) 308. 9 At common law tries nothing but jurisdiction. — State ex rel. Bar- nett V. Fifth District Court, 2 West Coast Rep. 630. And such was formerly the rule in Califor- nia. See People ex rel. Whitney V. Board of Delegates S. F. Fire ,^^, Deptmt.,_14_Cal, 525, holding stat- '■\J^ ute merely confirmatory of the r common law, overruling People ex rel. Church v. Hester, 6 Cal. 679. But it has since been held that under the constitution the writ is not a common-law writ (Gorgan v. County Court, 1 Cal. Unrep. 617), but a writ of review (People ex rel. San Francisco v. County Judge, 40 Cal. 47901', its office being to annul, not to restrain. — Lamb v. Scottler, 54 Cal. 319. 10 Wetzel V. Superior Court, 3 Cal. App. 408, 85 Pac. 858. See Goodman v. Superior Court, 8 Cal. App. 233, 96 Pac. 395. 11 Kerr's Cyc. Cal. Code Civ. Proc, §§1067, 1068; Idaho Rev. Stats. 1887, §4962; Mont. Code Civ. Proc, § 1941. Can not be converted into an action. — People ex rel. Lathrop v. Court of Appeals, 33 Colo. 261, 79 Pac. 1028. Washington statute (Ballinger s Ann. Codes & Stats., § 4793) makes certiorari a "civil action." — State ex rel. Spokane Terminal Co. v. Superior Court, 40 Wash. 453, 82 Pac. 878. 12 People ex rel. Sturgis v. Shep- ard. County Judge. 28 Cal. 115; People ex rel. Lamb v. Dwinelle, Judge, 29 Cal. 632; Dahlstrom v. Portland Min. Co., 12 Ida. 87, 85 Pac. 916; State ex rel. Garissom V. Justice Court, 31 Mont. 258, 78 Pac. 498; State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep, 636, 35 L. R. A. (N. S.) 1098, 99 Pac. 291; Elmore V. Tillamook County, 55 Ore. 484, 114 Pac. 88; Paige v. Commercial Nat. Bank, 38 Utah 440, 112 Pac. 816. See People ex rel. Vander- bilt V. Stilwell, 19 N. Y. 531; On- derdonk v. Supervisors, 1 Hill 9 §8 CODE PLEADING AND PRACTICE. [Pt.I, confession of judgment without action is a special pro- ceeding,^^ and the statute must be strictly pursued ;^^ contempt proceedings to punish disobedience of an order or judgment or requirement of a court, referee, and the like, is not an action,^^ but a special proceeding,^® and the judgment or order is not appealable,^^ unless made so by statute ;^^ contest of election is a special proceeding,^" with an appeal to the supreme court, under provisions of the California constitution;-*^ the statute regulating (N. Y.) 195; Cooper v. Kinney, 2 Hilt. (N. Y.) 12, 6 Abb. Pr. 380; People ex rel. Finch v. Overseers of Poor, 44 Barb. (N. Y.) 467. 13 Kerr's Cyc. Cal. Code Civ. Proc, § 1132; but a technical con- fession of judgment is contem- plated by this section. — Siskiyou County Bank v. Hoyt, 132 Cal. 85, 64 Pac. 118; Levy v. Irvine, 134 Cal. 664, 672, 66 Pac. 953. Purpose and true interpretation of code provision governing con- fession of judgment is explained in Hopkins v. Nelson, 24 N. Y. 519, and in Neusbaum v. Keim, 24 N. Y. 325, reversing 1 Hilt. 520, 7 Abb. Pr. 23. 14 Chapin v. Thompson, 20 Cal. 681; Reynolds v. Lincoln, 71 Cal. 163, 184, 9 Pac. 176; Schuster v. Rader, 13 Colo. 335, 22 Pac. 505; Harn v. Cole, 20 Okla. 553, 95 Pac. 415; Bacon v. Raybould, 4 Utah 359, 10 Pac. 481, 11 Pac. 510; Utah Nat. Bank v. Sears, 13 Utah 172, 44 Pac. 832. Judgment based on insufficient statement not void on its face and not attacked collaterally, up- held in Lee v. Figg, 37 Cal. 337, 99 Am. Dec. 274. 15 Kerr's Cyc. Cal. Code Civ. Proc, § 1209, enumerating the va- rious acts which may constitute a contempt. 16 As to forms in proceedings for contempt, see Jury's Adjudi- cated Forms, Forms Nos. 1159- 1176. 17 Brown, Ex parte, 3 Ariz. 411, 77 Pac. 489; People v. Kuhlman, 118 Cal. 140, 50 Pac. 382; Witt- meier. Matter of Estate of, 118 Cal. 255, 50 Pac. 393; Blodgett v. State, 50 Neb. 121, 69 N. W. 751; Borrer v. State (Tex.), 63 S. W. 630; Drainage Dist. No. 1 Kings County v. Costello, 53 Wash. 67, 101 Pac. 497. 18 Judgment made appealable on in following jurisdictions. — See Merchant v, Pielke, 9 N. D. 245, 83 N. W. 18; State ex rel. Turner v. Gray, 42 Ore. 261, 70 Pac. 904; Hebb V. County Court, 48 W. Va. 279, 37 S. E. 676, 49 W. Va. 733, 37 S. E. 676. 10 Saunders v. Haynes, 13 Cal. 145; Stone v. Elkins, 24 Cal. 126; Keller v. Chapman, 34 Cal. 635, 640; Lord v. Dunster, 79 Cal. 477, 483, 21 Pac. 865; Garrard v. Gal- lagher, 11 Nev. 382. Judgment by default can not be jtaken. — Keller v. Chapman, 34 Cal. 635. 20 Stone v. Elkins, 24 Cal. 125; 10 cl.. I.] SPECIAL PROCEEDINGS — ILLUSTRATIONS. § 8 must be strictly complied witL,-^ aiid the relief can not exceed that authorized by the statute;-- determination of heirship-^ of claimant to property of a decedent's estate is a special proceeding;-^ highway proceedings and pro- ceedings to lay-out or vacate city streets are special pro- ceedings,-^ not actions;-" indigent relations required by statute to be supported, proceeding to enforce that duty is a special proceeding ;^^ insolvency proceedings are not stricti juris either proceedings at law or in equity,-^ but a new proceeding or remedy created by statute in the na- ture of a special proceeding ;2^ joint debtors proceeded against after judgment, the proceeding is in the nature of scire facias and doubtless was intended as a substi- tute therefor ;^'^ it is merely a cumulative remedy,^^ not a new action, and the party served therein has no right to have the proceedings removed to a federal court ;^- ref- erees provided by statute are in aid of the common-law remedy by arbitration and award, ^^ the proceedings being on the same principle,"''^ and does not constitute a civil Dorsey v. Barry, 24 Cal. 452; 27 Haviland v. White, 7 How. Houghton, Appeal of, 42 Cal. 62, Pr. (N. Y.) 154. 68; Bixler, Appeal of, 59 Cal. 555; 2S Harper v. Freelon, 6 Cal. 76; Lord V. Dunster, 79 Cal. 477, 483, People ex rel. Grow v. Rosen- 21 Pac. 865; Thomas v. Franklin, borough, 29 Cal. 415, 418. 42 Neb. 310, 412, 60 N. W. 568; 29 Dennery, In re, 89 Cal. 101, 26 Towles. Ex parte, 48 Tex. 447, 450. Pac. 639. 21 Schwarz v. County Court, 14 30 See Alden v. Clark, 11 How. Colo. 44, 49, 23 Pac. 84. Pr. (N Y.) 209, 213, 22 Garrard v. Gallagher, 11 Nev. 31 oean v. Eldridge, 29 How. Pr. ?.?2, 386. (I^_ Y.) 218. •-'.•5 Kerr's Cyc. Cal. Code Civ. 32 Fairchild v. Durand, 8 Abb. Proc, § 1664. Pr. (n_ y.) 305. 21 Smith V. Westfield, 88 Cal. 33 Tyson v. Wells, 2 Cal. 122, 374, 26 Pac. 206; Burton, In re, 93 approved in Hadley v. Reed, 2 Cal. CaL 459, 463, 29 Pac. 36. 322, 325, holding report of referee 25 New York, The Bowery, In re, has same legal effect as award of 2 Abb. Pr. (N. Y.) 368, 12 How. arbitrators; it is final so far as he Pi". 97. is concerned. — See Cline v. Lan- 26 People ex rel. Disosway v. gan, 31 Nev. 244, 101 Pac. 554. Flake, 14 How. Pr, (N. Y.) 527. 34 Grayson v. Guild, 4 Cal. 122; 11 § 8 CODE PLEADING AJSTD PRACTICE. [Pt. I, action ;^^ review or vacation of assessment levied by view- ers or assessors appointed to determine benefits under a local improvement, — e. g., a sewer, — and to apportion the cost of construction, is not an action,^*' but a special pro- ceeding, under the code;^" specific performajice of con- tract of decedent by heirs sought, the proceeding to com- pel is not an action but a special proceeding ;^^ submission of controversy upon an agreed case,^^ is a special pro- ceeding and not an action,^*^ and restricts consideration to the facts admitted in the statement;'*^ supplementary proceedings in aid of execution are special proceedings,^^ and not in the nature of an action, whether had before or after return of execution unsatisfied,^^ the design of the proceeding being a summary determination as to property owned by the judgment debtor liable to execu- tion,^^ but property rights and the bona fides of prop- erty transactions can not be determined in such a pro- ceeding,^^ this requires pleading or issues joined on action,'*'^ however order made in can not be collaterally attacked;^" testimony, perpetuation of, under statute, is not an action but a special proceeding.^^ Phelps V. Peabody, 7 Cal. 50, 53; 4i Crandall v. Amador County. Burns, Estate of, 2 Cof. Prob. 46. 20 Cal. 72; Green v. Fresno 35 See Kerr's Cyc. Cal. Code Civ. County, 95 Cal. 329, 334, 30 Pac. Proc, §63G; also, Plant v. Flem- 544. ing, 20 Cal. 92; and People ex rel. ■*- Could v. Chapin, 2 N. Y. Code Disoway v. Flake, 14 How. Pr. ^^^p. 107, 4 How. Pr. 185; Davis v. (N. Y.) 527. Turner, 4 How. Pr. (N. Y.) 190. 36 Porter v. Purdy, 29 N Y 106, '^ ^°"^^^ ^- Angell, 72 Cal. 513, 86 Am. Dec. 283. '^^ P^^- '^^^^ ■14 Feldenheimer v. Tressel, 6 Dak. 265, 43 N. W. 94. 45 Wallace v. McLaughlin, 12 Utah 411, 43 Pac. 109. 3 8 Hyatt V. Seelj^ 11 N. Y. 52. 46 id. 39 Kerr's Cyc. Cal. Code Civ. 4- Schrauth v. Dry Dock Sav. Proc, § 1138. Bank, 8 Daly (N. Y.) 106. 40 Lang V. Ropke, 8 N. Y. Super. 4 s Kerr's Cyc. Cal. Code Civ. (1 Duer) 701, 702. Proc, §§ 2083, 2084. 12 37 Dodd, In re, 27 N. Y. 629; Jet ter, Matter of, 78 N. Y. 601, revers- ing 14 Hun 93, 55 How. Pr. 67. Ch. I.] WHAT ARE PROVISIONAL REMEDIES. §§ 9, 10 4. Provisional Remedies. § 9. What proceedings are. A x)rovisional remedy is one provided for a present need, or for the occasion, and adapted to meet a particular exigency.^ Provisional reme- dies are distinguished from Special Proceedings in that a provisional remedy is merely a collateral proceeding or remedy, and permitted in connection with a regularly instituted action, only,- as one of its incidents,-"^ and is auxiliary thereto in that it restrains the person or the property of the defendant until final judgment is entered or decree rendered in the action. An order granting or refusing a provisional remedy, or an interlocutory order confirming, modifjdng or sustaining such order, is review- able on appeal from tho final judgment or decree, only,'' except in case of injunction, under some statutes f but an order vacating an order granting a provisional remedy is a final order and appealable, although merely interloc- utory in the main proceeding or action, — e. g., order va- cating an order of arrest,^ although there are authorities to the contrary,"^ the conflict probably owing to difference in statutory provisions. In Wisconsin, however, and pos- sibly elsewhere, orders granting provisional remedies are, by statute, made appealable orders.^ § 10. In WHAT CONSIST — Illustrations. A provisional remedy consists in any proceeding in a ci%dl action pending, and usually before judgment or decree, in courts exercising equity powers, to secure the person 1 McCarthy v. McCarthy, 54 4 Snavely v. Abbott Buggy Co., How. Pr. (N. Y.) 97, 100, reversed 36 Kan. 106, 12 Pac. 522. on another point in 13 Hun 579. ^ ^^■ »,,-.. -r, o 6 See State v. Judge Fifth Dist. 2 snavely v. Abbott Buggy Co ^^ ^^ ^^^ ^^. ^^.^.^ ^^^ 36 Kan. 106, 12 Pac. 522. See Wit- ^.^.^^^ ^^ ^ ^^^^^^^ ^^^ ^ ^ ^^^^ ter V. Lyon, 34 Wis. 564, 575. 19 S E 597 n Snavely v. Abbott Buggy Co., 7 Com. v. Fielder, 8 Ky. L. Rep. 36 Kan. 106, 110, 12 Pac. 522; 353; Clarke v. Lourie, 82 N. Y. 580. EUinger v. Equitable Life Assur. s Noonan v. Orton, 28 Wis. 386; Co., 125 Wis. 643, 104 N. W. 811. Blossom v. Ludington, 31 Wis. 282. 13 § 10 CODE PLEADING AND PRACTICE. [Pt. I, of the defendant and render him amenable to any judg- ment or decree thereafter entered or made; or any pro- ceeding providing for the safety of property and to pre- serve it during the pendency of an action or an appeal from a judgment entered or a decree made, or in case of perishable property, ordering its sale and the substi- tution of the proceeds of such sale in the place and stead of the property, subject to the final determination of the cause and the further order of the court. Provisional remedies include, among other things, ar- rest, attachment, bail, garnishment, sequestration, tempo- rary injunction, temporary receiver pending the action, and the like ;^ but do not include the action of the sheriff in approving the plaintiff's undertaking on bringing suit or applying for an arrest of the defendant,- an order of the court authorizing substituted or constructive service of summons,^ and the like. 1 Snavely v. Abbott Buggy Co., 3 McCarthy v. McCarthy, 13 Hun 36 Kan. 106, 12 Pac. 522. (N. Y.) 579, reversing 54 How. 2 Nosser v. Corwin, 36 How. Pr. Pr. 97. ,(N. Y.) 540. 14 CHAPTER II. GENERAL FUNDAMENTAL PEINCIPLES OF PLEADING. § 11. In general. § 12. Purpose of chapter. § 13. Pleadings originally oral — Now required to be in writing. § 14. English system of pleading exceptional. § 15. Materiality of issue. § 16. Certainty of issue. § 17. Singleness of issue. § 18. Duplicity and misjoinder of issues. § 19. Common-law pleading. § 20. The formal pleadings at common law. § 11. In geneeal. A lawsuit has been said to be a ''legal battle"; which is not an inapt simile. In a lawsuit as much depends upon "strategy" and ''position" as in a contest at arms upon the field of battle. In speaking of tlie latter, General Garibaldi has said that "a bold onset is half the battle"; but as regards the former, it is the better part of valor to follow the precept of Bias of Priene, who counsels to "be slow in considering, but reso- lute in action. ' ' Too many attorneys, because of a mental infirmity or a constitutional indisposition to labor, rush into a litigation without due consideration of the cause, trusting to the court, or to the opposing attorney by demurrer, to "lick into shape" an ill-drawn pleading. This is always hazardous. It is worth while remembering that an action well begun is half won. We shall see, in later discussions, the importance of a thorough mastery of the cause before filing a pleading, particularly in con- nection with the treatment of Election of Remedies,^ the Theory of the Case,^ and in the discussion of the form of 1 See, post, §§ 535-574. 2 See, post, §§ 528-534. 15 §§ 12, 13 CODE PLEADING AND PRACTICE. [Pt. I, the pleading.^ If the pleader wishes to avail himself and his client of the advantages opposition" and "strategy" in the trial of the cause, he must draw his pleading with circumspection ; and this can be done only by a previous thorough mastery of the facts in the case and the rules of law applicable to the various ''angles" that may be given to the cause on the facts, and must select the angle that ^\dll be most advantageous to his side. In other words, he must select the ** field of battle," and not leave it to chance or to his adversary — else he may find w^hen he comes to the contest that he "has the sun in his eyes." § 12. Purpose of chaptee. The pleadings,^ both of plaintiff- and defendant,^ will be considered systemati- cally later on in this treatise. It is the purpose to set out in this place some of the preliminary matters and refer to the fundamental principles or rules governing pleading generally, which should always be followed in courts of record, ha\dng been found by experience to be requisite to the best results, and for that reason are required to be observed by procedural statutes and rules of court, found in decisions or formally prescribed. The decisions of the courts of the various states covered by this treatise mil be collected under the appropriate sections in Part IV of this treatise. § 13. Pleadings originally oral — Now required to be IN writing. In the twilight of English jurisprudence, all pleas were oral.^ Until some time during the reign of 3 See, post, §§ 704 et seq. (see, post, § 14) in that the parties 1 See, post, §§ 20, 704-750. were not required to present an 2 See, post. Part IV, ehs, IV "issue." But in all these nations, and V. at an early date, the Civil Law 3 See, post, Id., chs. V-IX. was made the basis of judicature, 1 Oral pleadings prevailed in and written pleadings took the courts of record in the various na- place of oral, and the form of trial tions on the continent of Europe was by the judge himself, without in their ancient systems of judica- the assistance of a jury. — See ture, but in all these nations dif- Domat's Civil Law, vol. II, bk. 11;/ fered from the English system Fortescue de Laud, ch. 20; J. G. 16 ch. II.] ORAL PLEADINGS. §13 Edward III^ — a great period in English history and the development of the rules of the common law — upon the answer-day, the parties were required to appear in court and state orally their respective contentions or claims, which statements and claims were contemporaneously en- tered upon the court record of the cause, and these oral statements thus entered constituted ''the issue" in the cause.2 Qy^I pleadings are no longer permitted in courts of record, either in England or in this country.'* In the Heineco, Elem. Jur. Germ., lib. II, tit. IV, § clviii. 2 In Stephen's "Principles of Pleading in Civil Actions," the era at or in which the manner of allegation in pleadings was first methodically formed and culti- vated as a science, and required to be in writing, is placed in the reign of Edward I. — See p. 135. Early authorities, for such as wish to look more minutely into this subject, will be found in the treatise of Glanville (in time of Henry II), Bracton (latter end of reign of Henry III), and Placi- tarum Abbreviate (from Richard I to Henry II). According to Reeves, the Mirror of Justice can not be relied upon for any period prior to Edward I. — See 2 Reeves' Hist. Eng. Com. Law, p. 359. 3 The issue, as defined by Lord Coke, consists in "a single, certain, and material point, issuing out of the allegations or pleas of the plaintiff and defendant, consisting regularly upon an affirmative and negative, to be tried by twelve men."— Co. Lit. 126. For other definitibns, see 3 Bl. Com. 313; Heath's Maxims, ch. IV, and Finch's Law, 396. This definition followed in the American cases. — See, among 1 Code PI. and Pr.— 2 Other cases: Leach v. Pierce, 93 Cal. 614, 619, 29 Pac. 235; Seller v. Jenkins, 97 Ind. 430, 438; McDer- mott V. Halleck, 65 Kan. 403, 69 Pac. 335; Marshall v. Haney, 9 Gill (Md.) 251, 258; Barth v. Ro- senfeld, 36 Md. 604, 617; Richard- son V. Smith, 80 Md. 94, 30 Atl. 570; Hays v. Hays, 23 Wend. (N. Y.) 363, 370; People v. Slau- son, 85 App. Div. 166, 83 N. Y. Supp. 107, 17 N. Y. Cr. Rep. 427: Riggs v. Chapin, 7 N. Y. Supp. 765, 767; Hume v. Woodruff, 26 Ore. 373, 38 Pac. 191; New York & T. Land Co. v. Votaw, 16 Tex. Civ. App. 585, 42 S. W. 138; Hong Sling V. Scottish Union & Nat. Ins. Co., 7 Utah 441, 27 Pac. 170; First Nat. Bank v. Swan, 3 Wyo. 356, 23 Pac. 473. No written pleading or denial controverting the allegations of the complaint, declaration, or pe- tition, there is no issue. — White v. Emblem, 43 W. Va. 819, 28 S. E. 761. See discussion, post, § 743. 4 See Avon Mfg. Co. v. Andrews, 30 Conn. 476, 488, and White v. Emblem, 43 W. Va. 819, 28 S. E. 761. Exceptions to general rule are found. Thus, in these cases in which a supplemental pleading is 17 §14 CODE PLEADING AND PRACTICE. [Pt. I, Code states, all pleadings are especially required to be in writing, in causes in courts of record. The object souglit to be attained by means of written pleadings is the same as in oral pleading — i. e., to bring out clearly, divorced from extraneous matter, the single point or points of law^ or fact forming the * * issue " to be submitted. § 14. English system of pleading exceptional. The English system of pleading, which is followed in this coun- try, though in a much simplified form, especially in the Code states, — so conducted as always to evolve a single question or questions growing out of the same claim or transaction, either of law or of fact, disputed between the parties litigant, and mutually proposed and accepted by them as the subject for the consideration and decision of the court,^ — stands alone in judicature, the like not ap- filed, by leave of court, setting up a counter-claim and insulTicient matter for abating a suit regularly- assigned for trial and coming on to be tried before the filing of such supplemental pleading, the court, in response to inquiry by counsel for plaintiff, having stated that a demurrer to the counter- claim would be sustained when filed, the trial may proceed on oral demurrer without a written de- murrer to the counter-claim being first filed. — Veysey v. Bernard, 49 Wash. 571, 95 Pac. 1096. See, also, Cowen Co. v. Houck Mfg. Co., 249 Fed. 285, for an in- stance in which the cause was not tried u'jon the w-ritten pleadings served and filed in the case, but upon what amounted to oral pleadings made shortly after the trial began, upon the insistence by the trial court that the issues be simplified. Oral denial by one party of a written allegation of the other party to an action does not form an issue. — Avon Mfg. Co. v. An- drews, 30 Conn. 476, 488. 5 Issues involved may be more than one. — See, post, § 17. 1 In American judicature the object of the pleadings of the par- ties is the same as at common law. — See Lubert v. Chauviteau, 3 Cal. 458, 58 Am. Dec. 415; Magwire V. Tyler, 47 Mo. 115; Parsley v. Nicholson, 65 N. C. 210. Mr. Chief Justice Waite said: "The office of pleading is to inform the court and the parties of the facts in issue; the court, that it may declare the law, and the par- ties that they may know what to meet by their proof." — Hill v. Mendenhall, 88 U. S. (21 Wall.) 453, 455, 22 L. Ed. 616. See, also, language of Mf. Justice Swayne in United States v. Grlmore, 74 U. S. (7 Wall.) 491, 494, 19 L. Ed. 282. 18 ell. II.] MATERL\X,ITY OF ISSUE. § 15 pearing in any other system.^ This distinctive peculiarity is most marked in the fact that the issue to be tried is fully framed and presented before the court takes up the cause. In any system of judicature the ''issue" must of course be fully developed before the court can arrive at a deci- sion. In other systems of judicature the parties litigant are permitted to make rambling statements "at large," without any effort to bring out and present the exact matter in controversy, — the point or points to be decided. To arrive at the point or issue the court, before proceed- ing to a decision, must collate, consider and review the opposed effect of the different statements of the parties litigant; i. e., must distinguish and extract the points mutually admitted, as well as those undisputed points which are immaterial, thereby arriving at the point in dispute which is to be decided. In yet other systems of judicature the point for decision is selected from the pleadings by the trial judge, or by a court officer, and this ''issue" promulgated before the trial and proof by the respective parties.^ The advantage of the English system of pleading, in which the parties litigant themselves, by the allegations in their respective pleadings, develop and present the point or issue to be tried, is manifest without comment.'' This distinctive feature of the English system requiring the parties to present the point or issue to be adjudicated, doubtless had its rise in the early practice of oral pleading.^ § 15. Materiality of issue. The pleadings are required not only to present an issue, but it must be one appropri- ate to be, or necessary to be, considered and detennined in rendering full and complete justice in the cause. In 2 See Stephen on Pleading (Wil- Swayne, J., in United States v. Gil- litson's ed.), p. 136. more, 74 U. S. (7 Wall.) 491, 494, 3 Id., p. 138. 19 L. Ed. 282, 283. 4 "The value of the system, in "^ As to oral plead 'ng in courts of the administration of justice, can record, see, ante, § 13 and notes, hardly be too highly estimated." — 19 U6 CODE PLEADING AND PRACTICE. [pt. r, other words, tlie issue presented must be material. Wlicic an issue presented is immaterial it may be ignored,^ or stricken out- on motion or demurrer ; it is not required to be answered, and should not be answered, liecause to an- swer tends to promote the evils of confusion, prolixity and delay.^ § 16, Certainty of issue. It is essential not only that the issue presented shall be a material one, but it must be presented with certainty and precision ;^ such certainty and precision as mil show distinctly both time and place- facts proved before them by the parties litigant, as is the case in jury trials with us, but their testi- mony as to facts antecedently known to them. — See 2 Reeves' Hist. Eng. Com. Law, p. 270. 1 Immaterial or irrelevant allega- tion is one which does not relate to or affect the matter in contro- versy.— E. D. Metcalf Co. v. Gil- bert, 19 Wyo. 331, 116 Pac. 1017; Morton v. Jackson, 2 Minn. 219. 2 Irrelevant matter may be stricken out. — Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492; Bowen v. Aubrey, 22 Cal. 566, 569; Wil- son V. Cleveland, 30 Cal. 192, 200, 89 Am. Dec. 85. a See, post, § 16. 1 See Bracton, 431a. Modern English reasons for cer- tainty and precision in pleadings are set forth, among other cases, in the following: Holmes v. Cats- by, 1 Taunt. 543, 127 Eng. Repr. 944; J'Anson v. Stuart, 1 T. R. 748, 99 Eng. Repr. 1357; and Col- lett v. Keith, 2 East 260, 102 Eng. Repr. 368. -'Certainty and precision re- quired in pleading had their origin, doubtless, in the nature of the original constitution of trial by jury, under which the jury con- sisted of persons who were wit- nesses to the facts, or in some measure personally cognizant of them, and who gave as their ver- dict, not their judgment as to the The venire facias issued for summoning the jury under this system of trial by jury, directed that the jurors be summoned from the immediate neighborhood where the facts or transaction occurred, and from the persons who best knew the truth of the matter (Ste- phen on Pleading, p. 147). To en- able the sheriff to perform his duty in summoning the jury, the venire facias was required to state fully the nature of the issue (Brac- ton 309b, 310a, etc.) with sufficient certainty to show specifically the question of fact to be tried, and to accomplish this both the place where and the time when the al- leged transaction or acts occurred were required to be set out, to- gether with such other particulars as would be sufficient to guide the sheriff in summoning the jury. Other reasons- may have entered into the requirements as to clear- ness, certainty, and precision in the pleadings. — See Bracton, 431a. 20 ell. II.] SINGLENESS OF ISSUE. § 17 of the act or transaction involved, and also wlietlier the point involved is one of law or fact. The issue as pre- sented must clearly show the nature of the act or transac- tion, and disclose by what form of trial it should be determined"— by court or jury, in law or in equity. Ste- phen well says that the chief objects of pleadings are : (1) to bring the litigating parties to an issue; (2) to secure an issue which shall be material, single and certain in its quality, and (3) to avoid obscurity, confusion, pro- lixity and delay.^ <§ 17. Singleness of issue. We have seen above that the object of the pleadings at common law, whether they were oral or written, was to develop a single issue be- tween the parties litigant. This is the general rule ; but there were exceptions to it, under which exceptions it was permissible to present two or more points or issues in one action for the consideration and determination of the court. This exception arose in those cases, only, in which the nature of the controversy admitted of more than one question fit to be determined by the action; that is, in those cases in which the action tended to more than one material issue. Thus, where the action was founded upon two or more separate demands, there might be separate and distinct issues applicable to each demand, and com- plete justice require that all these issues should be raised and decided, and the entire matter determined and dis- posed of in one proceeding. Where but a single claim was presented, however, and the decision of any one of two or more material issues that might be raised would effectually dispose of the cause and complete justice be done, the exception did not apply, and the general rule prevailed. 3 See R. V. Cooke, 2 Barn & C. 4 Stephen on Principles of Plead- 871, 9 Eng. C. L. 375, 107 Eng. ing in Civil Actions, p. 148. Repr. 605. 21 §§ 18, 19 CODE PLEADING AND PRACTICE, [Pt. I, § 18. Duplicity and misjoinder of issues. In those cases in which there is but one subject of suit, a multi- plicity of issues will constitute the vice of duplicity and misjoinder of issues/ which topics will be fully treated, and the cases cited, in Part IV of this treatise. § 19. CoMMON-LAw PLEADING. Tlic systcm of commou- law pleading, upon which the American systems of plead- ing were founded, was highly formal, technical and verbose. The pleader was required to determine with certainty before dramng his declaration or bill whether the nature of the cause he presented was an action at law or a suit in equity — each class of proceedings having its own peculiar rules of pleading;^ if he erred in this respect in his judgment the cause was thrown out of court, and he was compelled to commence over again — if an inter- vening statute of limitation did not cut off the right of his client to maintain an action. This same formality and technicality, but relieved of much of the verbosity, was carried into the system of judicature of some of the states of the Union, with a like duty imposed on the pleader to pre-determine with certainty whether the cause is an action at law or a suit in equity, with a like disaster for any error of judgment in this regard. Particularly is 1 As to misjoinder of issues un- The ability to understand what is der the English or common-law the appropriate remedy and relief system of pleading, see Wigley v. for the case; to shape the bill Ashton, 3 Barn. & Aid. 101, 5 Eng. ^"1^^' accurately and neatly, with- C. L. 67, 106 Eng. Repr. 600, 22 °"t deforming it by loose and im- Rev ReD ''16 material allegations or loading it with superfluous details, and to 1 Equity pleading has been char- ^je^ide who are the proper and acteiized by Judge Story as "a necessary parties to the suit— the science of great complexity, and ability to do all this requires vari- a very refined species of logic, ous talents, long experience, vast which it requires great talent to learning and a clearness and as- master in all its various distinc- tuteness of perception which be- tions and subtle contrivances, and long only to very gifted minds." — to apply it, with any sound discre- Story on Equity Pleading, § 13. tion and judgment, to all the diver- See Cooper on Equity Pleading, sities of professional practice. p. 4. 22 (h. II.] FORMAL PLEADINGS. §20 this true in the system of judicature prevailing in the state of New Jersey. All this has been changed in the Code states, and also in many of the non-code states ; the form of pleading greatly simplified ; all technicalities done away with,- and a complaint or declaration which suffi- ciently states a good cause of action, either at law or in equity, will be retained and the cause disposed of, regard- less of the form and inartful manner in which the facts are set forth. <^ 20. The formal pleadings at common law. Under the common-law system of judicature, requiring the par- ties litigant to so form their allegations as to develop with certainty and particularity an issue upon which the court could decide the cause, the formal pleadings allowed and necessary to bring out this ''issue" were: 1. The declaration; 2. The plea; 3. The replication; 4. The rejoinder; 5. The surrejoinder; 6. The rebutter ; and 7. The surrebutter. Whore any pleading was insufficient in form or sub- stance, the opposite party was required to demur before filing the respective subsequent pleading as above enumer- ated, or be held to have waived any objection to the de- fective pleading. This multiplicity of 'pleadings to come to an issue, we shall see later on, no longer obtains in the various Code states, and in those states which have no code but have adopted a simplified system of judicature, in which tlie formal pleadings permitted to raise an issue arc limited to (1) the complaint or petition on the part of the phiin- tiff and the answer of the defendant,^ or (2) the comi)laint 2 Bates V. Capital State Bank, 18 i Complaint and answer, only, Idaho 429, 110 Pac. 277. allowed in Arizona, Rev. Stats. 23 §20 CODE PLEADING AND PRACTICE. [Ft. T, or petition on the part of tlie plaintiff, the answer of the defendant and the reply of the plaintiff,^ together with motions and demurrers, in case any formal pleading filed and served is defective in form or insufficient in substance. 1901, par. 1275; Idaho, Rev. Codes 1909, §4162; Nevada, Cutting's Ann. Comp. Laws 1900, §3133; Texas, Sayles' Civ. Stats. 1897, Art. nSl. 2 Complaint, answer and reply, only, is allowed in Alaska, Ann. Code 1907, C. C. P. § 55; Arkansas, Kirby's Dig. of Stats. 1904, § 6087; Colorado, Rev. Stats. 1908, C. C. P. § 54; Iowa, Ann. Code 1897, § 3557; Kansas, Dassler's Gen. Stats. 1905, § 4968; Minnesota, Rev. Laws 1905, §4126; Missouri, Ann. Stats. 1906, §596; Montana, Rev. Codes 1907, § 6530; Nebraska, Ann. Comp. Stats. 1909, § 6665 (Cobby's Ann. Stats. 1909, § 1094) ; New Mexico, Comp. Laws 1897, §2658; North Dakota, Rev. Code, 1905, §6853; Oklahoma, Wilson's Rev. & Ann. Stats. 1903, § 4290 (Snyder's Comp. Laws 1909, § 5626) ; Oregon, Bel. & Cot's Ann. Codes & Stats. 1902, §65; South Dakota, Rev. Codes 1903, C. C. P. § 120 (Session Laws 1907, pp. 165, 171); Utah, Comp. Laws 1907, §2958; Washington, Remington & Bal.'s Code 1910, § 256; Wisconsin, Sanborn & Ber. Ann. Stats. 1898, § 2648; Wyoming, Rev. Stats. 1899, § 3532. 24 CHAPTER Til. CHANGES MADE BY PROCEDURAL CODES. § 21. Introductory. § 22. Code pleading not founded on common-law pleading. § 23. Object of code pleading. § 24, Allegations under code — Facts only. § 25. Illustration. § 26. Common counts — How far allowed under code plead- ing. § 27. Special demurrer. § 28. Motion to make more definite and certain. § 29. Forms of actions abolished, but not the remedies. § 30. Artificial distinctions and fictions abolished. § 21. Introductory. The first attack upon the citadel of technicality, formality and verbosity of the common- law system of pleading was made in the New York Code^ of Procedure adopted in 1848,- followed by the Ohio Code, 1 Code means a systematic and 177^ improved upon by various complete body of the law, or of acts between 1801 and 1813, on a particular branch of it; as a Po- which latter date there was a gen- litical Code, a Civil Code, a Code eral revision of the procedural law of Procedure, a Penal Code, a Pro- of the state, and again in 1828, on bate Code, and the like. An act which date it was made a part of of the legislature establishing a the Revised Statutes. None of this complete code of all the law, or of "codification" constituted a code, any particular branch of the law as we now understand that term, of the state, is not obnoxious to but consisted simply in a revision the provision of the state constitu- and uniting into one body various tion prohibiting more than one statutes passed at different times, subject to be embraced in any one and all relating to practice. It was act.— See Johnson v. Harrison, 47 not until the adoption of the Code Minn. 575, 28 Am. St. Rep. 382, 50 of Procedure, drafted by a conimis- N W. 923. sion, of which David Dudley Field ■2 New York state the pioneer in was chairman, that New York had code work in this country. In that a genuine Code of Procedure. The state the first codification, relat- original New York Code of Pio- ing to procedural work, was in cedure had but 391 sections. 25 § 22 CODE PLEADING AND PRACTICE. [t*t. T. adopted in 1854. Of these codes the former was the more radical in that it abolished all distinctions, in the plead- ings in the enforcement of rights and the prevention and redress of grievances, while the Ohio Code retained, in a measure, the distinction between the two classes of actions at law and in equity, in doing complete justice. The New York Code of Procedure has furnished the basis or model for, and has been followed by, nearly all the procedural codes which have since been adopted in the various states of the Union ; but in some of these states — as in Arkansas, Iowa, Kentucky and Oregon — while providing for but one form of action, actions at law and proceedings in equity are kept distinct, as in the Ohio Code of 1854. § 22. Code pleading not founded upon common-law PLEADING. The Code system of judicature is entirely new in its method of pleading.^ It is in no sense founded upon, or a modification of, the common-law system of pleading ; neither is it a ''replica," though in a modified form, of the old equity pleading. The act of the legislature adopt- ing a procedural code abolishes all forms of pleading, and sweeps away all distinctions in actions, theretofore exist- ing, and provides that thereafter there shall be but one form of pleading in civil actions in courts of record, and prescribes the rules by which the sufficiency of pleadings are to be determined.^ The old rules and criteria for determining the sufficiency of a pleading are no longer applicable ; and it is not safe to attempt to apply them by analogy. David Dudley Field Codes. Tbis litical Code, a Civil Code, a Code Code is not to be confounded with of Civil Procedure (including pro- the "Field Codes," which were pre- bate proceedings), and a Penal sented to and turned down by New Code. York. As a matter of fact "the i Bush v. Prosser, 11 N. Y. 347, Field Codes were never adopted in ^^'^^ any state, except in the state of 2 Id.; Carrico v. Tomlinson, 17 California; and consist of a Po- Mo. 501. 26 oh. III.] OBJECT OF CODE PLEADING. §23 § 23. Object of Code pleading. The object of a pro- cedural code is to establish a uniform system of practice and to reduce the system of pleading to one allegation, jnerely — although two or more issues may still be joined, in proper cases, in the same pleading^ — without reference to discovery,- so that the forai of allegation may be adapted to cases which, under the common-law system of judicature and systems founded upon the common-law system, are distinguished into (1) legal actions, and (2) suits in equity;^ and this is the distinguishing fea- ture of Code pleading.'* In the language of Mr. Justice 1 See, ante, § 17. 2 Complaint drawn with view to discovery, "under oath," should be stricken out. — Bowen v. Aubrey, 22 Cal. 566, 569; Guy v. Washburn, 23 CaL 111, 112. ?■ New York Code Commission as given in Moak's Van Stanf. PL, p. 28. Rules of pleading under the Code are the same at law and in equity. — Bowen v. Aubrey, 22 Cal. 566, 569; Hanna v. Reeves, 22 Wash. 6, 10, 60 Pac. 62. A discussion of the rules of pleading, post, §§ 709 et seq. 4 Smith V. Rowe, 4 Cal. 6, 7; Coryell v. Cain, 16 Cal. 567; Wig- gins V. McDonald, 18 Cal. 126, 127; Bowen v. Aubrey, 22 Cal. 566; Jolly v. Terre Haute Drawbridge Co., 9 Ind. 424; Woodford v. Lea- venworth, 14 Ind. 311; Emmons v. Kiger, 23 Ind. 483; Matlock v. Todd, 25 Ind. 128; Vanschoiack v. Farrow, 25 Ind. 310; Troost v. Da- vis, 31 Ind. 34, 39; Lytle v. Lytle, 37 Ind. 281; King v. Enterprise Ins. Co., 45 Ind. 43; Claussen v. La- Irenz, 4 G. Greene (Iowa) 224; Singleton v. Scott, 11 Iowa 589; Pfiffner v. Krapfel, 28 Iowa 27; Cowin v. Toole, 31 Iowa 513; Moorehead v. Hyde, 38 Iowa 382; Garret v. Gault, 52 Ky. (13 B. Mon.) 378; Hill v. Barrett, 53 Ky. (14 B. Mon.) 83; Martin v. Mobile & O. R. Co., 70 Ky. (7 Bush) 116; Richmond & Lexington Turnpike Road Co. v. Rogers, 70 Ky. (7 Bush) 532; Louisville & Portland Canal Co. v. Murphy, 72 Ky. (9 Bush) 522; Rogers v. Penniston, 16 Mo. 435; Maguire v. Vice, 20 Mo. 430; Hesse v. Missouri State Mut. Fire & M. Ins. Co., 21 Mo. 93; Richardson v. Means, 22 Mo. 495; Dobson V. Pearce, 12 N. Y. 156, 62 Am. Dec. 152, 1 Abb. Pr. 97 affirm- ing 8 N. Y. Super. Ct. Rep. (1 Duer) 142, 10 Leg. Obs. 170; Crary V. Goodman, 12 N. Y. 266, 268, 64 Am. Dec. 506, reversing 9 Barb. 657; White v. Joy, 13 N. Y. 83; Reubens v. Joel, 13 N. Y. 488; Far- ron V. Sherwood, 17 N. Y. 227, 229; Phillips V. Gorham, 17 N. Y. 270; Emery v. Pease, 20 N. Y. 62; But- ler V. Lee, 42 N. Y. (3 Keyes) 70, 1 Abb. Ct. App. Dec. 279, 33 How. Pr. 251, 238; De Graw v. Elmore, 50 N. Y. 1; Arthur v. Homestead Fire Ins. Co., 78 N. Y. 462, 467, 34 Am. Rep. 550; Grattan v. Metro- politan Life Ins. Co., SO N. Y. 281. 294, 36 Am. Rep. 617; Cropsey v. 27 §24 CODE PLEADING AND PRACTICE. [Pt. I, Gardner, the two systems of pleading theretofore prevail- ing were blended and formed into a single and uniform system which should combine the principles peculiar to each,^ and be applicable alike to all actions.*^ § 24. Allegations under Code — Facts only. Under the various procedural codes the facts, only, are to be alleged — all * * fictions ' ' are abolished ; that is, the ultimate material facts in the case as contradistinguished from (1) the law in the case, (2) argument, (3) hypothesis, and (4) the evidence of the facts, or the probative facts.^ Sweeney, 27 Barb. (N. Y.) 310, 7 Abb. Pr. 129; Genet v. Howland, 45 Barb. (N. Y.) 560, 30 How. Pr. 360; Peck v. Newton, 46 Barb. (N. Y.) 173, 174; Wooden v. Waf- fle, 1 Code Rep. N. S. 392, 6 How. Pr. 145; Hall v. Hall, 38 How. Pr. (N. Y.) 97, 98; Birdsall v. Birdsall, 41 How. Pr. (N. Y.) 389, 397; Mc- Keon V. See, 27 N. Y. Super. Ct. Rep. (4 Robt.) 449, 468, affirmed 51 N. Y. 300, 10 Am. Rep. 659, mod- ifying 28 How. Pr. 238; Brown v. Brown, 27 N. Y. Super. Ct. Rep. (4 Robt.) 702; Klorme v. Bradstreet, 7 Ohio St. 453; Lamson v. Pfaff, 1 Handy (Ohio) 453; Bonesteel v. Bonesteel, 28 Wis. 250; Dickson v. Cole, 34 Wis. 625. 5 Giles V. Lyon, 4 N. Y. 600, 1 Code Rep. N. S. 257; Bush v. Pros- ser, 11 N. Y. 347, 354. 6 De Witt V. Hays, 2 Cal. 463, 65 Am. Dec. 352; Grain v. Aldrich, 38 Cal. 514, 520, 99 Am. Dec. 423; Marquat v. Marquat, 12 N. Y. 336, 342; Emery v. Pease, 20 N. Y. 62, 65; Oneida Bank v. Ontario Bank, 21 N. Y. 490; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, 12 Abb. Pr. 414, 21 How.. Pr. 296; Lattin v. McCarty, 41 N. Y. 107, reversing 8 Abb. Pr. 925, 17 How. Pr. 239; Hemmingway v. Poucher, 98 N. Y. 281, 288; Har- rison V. Brooklyn, B. & C. I. R. Co., 100 N. Y. 621, 3 N. E. 187; Scheu V. New York, L. & W. R. Co., 12 N. Y. St. Rep. 99, 106; Mowry v. Hill, 11 Wis. 146. 1 Green v. Palmer, 15 Cal. 411, 414, 76 Am. Dec. 492; Coryell v. Cain, 16 Cal. 571; Deux v. Domec, 18 Cal. 81; Grenwell v. Walden, 23 Cal. 165, 169; Thomas v. Desmond, 63 Cal. 427; Bowen v. Emmerson, 3 Ore. 452, 455. Complaint merely stating proba- tive facts, or the evidence in the cause, is demurrable. — Thomas v. Desmond, 63 Cal. 426, 427; Ahlers V. Smiley, 11 Cal. App. 346, 104 Pac. 998. See note 76 Am. Dec. 498. Conclusions of law should not be alleged. — Green v. Palmer, 15 Cal. 411, 414, 76 Am. Dec. 492; Spring Valley Water Works v. San Fran- cisco (dis. op.), 82 Cal. 286, 321, 322, 16 Am. St. Rep. 116, 6 L. R. A. 756, 22 Pac. 910, 1046. See discussion, post, § 715. Materiality of facts stated may be determined by the proper an- swer to the question: "If it be de- nied, will the failure to prove it decide the case in whole or in part"? If it will not the alleged fact is immaterial. — Cline v. Cline, 3 Ore. 355. 28 ch. III.] ALLEGATION OF FACTS ONLY, §24 Only such facts as constitute the cause of action or de- fense are to be stated,- in plain and concise language ; but each party must allege every fact that he is required to prove, and is precluded from proving any fact not alleged.^ In those cases where the complaint or petition^ As to what are material facts, see, post, § 743, footnote and text going therewith. Matters of defense should not be covered in complaint. — Green V. Palmer, 15 Cal. 411, 414, 76 Am. Dec. 492; Wilson v. Cleveland, 30 Cal. 192, 200, 89 Am. Dec. 85; Pat- terson V. Keystone Min. Co., 30 Cal. 360, 364; Larco v. Casaneuava, 30 Cal. 560, 565; Raconillat v. Rowe, 32 Cal. 450, 456; Jones v. Petaluma, 36 Cal. 230, 233; Bruck V. Tucker, 42 Cal. 346, 351; United States v. Williams, 6 Mont. 379, 385, 12 Pac. 851. Matters of evidence should be stricken from complaint. — Wilson V. Cleveland, 30 Cal. 192, 89 Am. Dec. 85; Jones v. Petaluma, 36 Cal. 230; Red Bluff (Town of) v. Walbridge, 11 Cal. App. 346, 104 Pac. 998. As to pleading matters of evi- dence, see, post, § 717. Ultimate facts, only, should be alleged. Not the probative facts. — Grenwell v. Walden, 23 Cal. 165, 169; Thomas v. Desmond, 63 Cal. 426, 427; Ahlers v. Smiley, 11 Cal. App. 346, 104 Pac. 998. 2 Green v. Palmer, 15 Cal. 411, 412, 76 Am. Dec. 492; Coryell v. Cain, 16 Cal. 567, 571; Wilson v. Cleveland, 30 Cal. 192, 200, 89 Am. Dec. 85; Goodspeed's Estate, 2 Cof. Prob. 147, 148; Harris' Es- tate, 3 Cof. Prob. 13; Holladay v. Elliott, 3 Ore. 346; Cline v. Cline, 3 Ore. 359; Singer v. Salt Lake City Copper Mfg. Co., 17 Utah 143, 157, 70 Am. St. Rep. 776, 53 Pac. 1024. See notes 79 Am. Dec. 283; 82 Am. Dec. 94; 83 Am. Dec. 69; 84 Am. Dec. 781; 97 Am. Dec. 231; 16 Am. St. Rep. 134; 30 Am. St. Rep. 705; 59 Am. St. Rep. 179. Exception to requirement that all facts must be pleaded which the party is required to prove, is to be noted in those cases in which the complaint, in the direct alle- gations, omits an essential fact that must be proved, but that omitted fact is contained in an instrument in writing which is set out in haec verba in the com- plaint. — McPherson v. San Joaquin County, 6 Cal. Unrep. 257, 261, 56 Pac. 802, 804. See, also, post, § 721. "No excuse for stuffing com- plaint with matters of evidence in- stead of issuable facts." — Guy v. Washburn, 23 Cal. Ill, 112. As to pleading surplusage and unnecessary matter, see, post, §728. 3 Green v. Palmer, 15 Cal. 411, 417, 76 Am. Dec. 492; Dreux v. Domec, 18 Cal. 83, 88; Grenwell v. Walden, 23 Cal. 165, 169; Thomas V. Desmond, 63 Cal. 427; Spring Valley ^^'ater Works v. San Fran- cisco (dis. op.), 82 Cal. 286, 321. 323, 16 Am. St. Rep. 116, 6 L. R. A. 756, 22 Pac. 910; Allen v. Home Ins. Co., 133 Cal. 29, 30, 65 Pac. 138. 4 First pleading of plaintiff is designated a "complaint" in some nrocedural codes, and a "petition" 29 § 25 C:()L)E PLEADING AND PRACTICE. [Pt. T, alleges facts upon which the plaintiff is entitled to any relief, the pleading will not be defective and demurral)le because of a failure to state other facts. ^ Where a cause of action is stated on one ground, it is immaterial that the complaint also states a cause of action upon another ground; thus, where a cause of action in ejectment is set out, the complaint will not be defective and demurrable because it also shows a cause of action for unlawful de- tainer.^ The pleading of the plaintiff will be sufficient where it states a cause of action, either legal or equitable," regardless of the prayer,^ and relief will be granted in any form authorized by the facts set out and proved on the trial;'' and where the facts set out warrant equitable relief, the prayer may be amended so as to demand equi- table relief, instead of asking for simple damages, and the like.i^ § 25. Illustration. Thus, in an action to recover money due under a contract, facts must be set out which show (1) that a contract existed between the parties, and in others; in the California Code o White v. Lyon, 42 Cal. 279; of Civil Procedure it is termed Becker v. Superior Court, 151 Cal. a complaint, and that term will be 313, 317, 90 Pac. G90; Hayden v. used throughout this treatise. Collins, 1 Cal. App. 261, 81 Pac. .-. Houghtaling v. Ellis, 1 Ariz. 1121. 383, 387, 25 Pac. 534; Wiggins v. 7 Grain v. Aldrich, 38 Cal. 514, McDonald, 18 Cal. 126, 127; John- 520, 99 Am, Dec. 423; Henry v. sen V. Santa Clara, 28 Cal. 545, Travelers' Ins. Co., 16 Colo. 179, 547; Grain v. Aldrich, 38 Cal. 514, 186, 26 Pac. 318; Dickerson v. Spo- 99 Am. Dec. 423; White v. Lyons, kane (City of), 26 Wash. 292, 295, 42 Cal. 279, 282; McPherson v. 66 Pac. 381. Weston, 64 Cal. 275, 280, 30 Pac. s Specific performance may be 842; Watson v. Sutro, 86 Cal. 500, decreed, although damages are 528, 24 Pac. 178, 25 Pac. 645; prayed. — Kingston v. Walters, 14 Whitehead v. Sweet, 126 Cal. 67, N. M. 373, 93 Pac. 702. 73, 76, 58 Pac. 376; Nellis v. Pa- 9 Rollins v. Forbes, 10 Cal. 299, cific Bank, 127 Cal. 166, 170, 59 300; Oliver v. Blair, 2 Cal. Unrep. Pac. 830; McDougald v. Hulet, 132 564, 8 Pac. 612. Cal. 154, 160, 64 Pac. 278; Allen v. See De Leonis v. Hammel. 1 Cal. Home Ins. Co., 133 Cal. 29, 30, 65 App. 394, .82 Pac. 351. Pac. 138; Wa Ching v. Constantine, lo Walsh v. McKeen, 75 Cal. 519, 1 Idaho 266, 267; First Nat. Bank 523, 17 Pac. 673; Hayden v. Col- V. Bews, 3 Idaho 492, 31 Pac. 818. lins, 1 Cal. App. 259, 261, 81 Pac. 30 C'll. III.] COMMON COUNTS. § 26 that it has been broken ;i (2) the promise and the consid- eration therefor, or facts from which a promise or under- taking upon a sufficient consideration is necessarily inf erred;- (3) facts should be stated showing that the time of payment has expired, or (4) facts shomng in what manner the contract has been broken.^ <§ 26. Common counts — How far allowed under Code pleading. Under the system of common-law plead- ing, common counts were required to be stated in concise and technical langimge. These common counts consisted of (1) the indebitatus count; (2) the quantum meruit count; (3) the quantum valebant count, and (4) the account stated count. While all the common-law forms are abol- ished by procedural codes, and these common counts posi- tively prohibited by the languages of the various practice codes, and the common counts are entirely out of harmony with all reformed systems of pleading ; yet the courts in the various Code states have overridden the plain declara- tions and provisions of these various procedural codes, and by ''construction" have retained in the Code system of pleading the common counts. This has been done by a process of reasoning incomprehensible and inexplicable on any theory, except upon the assumption that the early judges, called upon to pass upon the point, were so in- grained with the principles of the common-law system of pleading — and possibly so violently prejudiced in its 1120; Bedolla v. Williams, 15 Cal. roft, 4 E. D. Smith (N. Y.) 34, 1 App. 742, 115 Pac. 748. Abb. Pr. 203, 10 How. Pr. 377. 1 Allegation defendant indebted ^^ ^^ allegation of conclusions, to plaintiff, is substantially the al- ^^^^ ^^^^^ gg ^^^^ ^^^ legation of a conclusion to be found by the jury at the end of the - "Not necessary to state in trial of the cause.— Bowen v. Em- terms a promise to pay; it was merson, 3 Ore. 452. See Seeley v. sufficient to state facts showing Engell, 17 Barb. (N. Y.) 530, re- the duty from which the law im- versed on another point, 13 N. Y. PHes a promise."— Farron v. Sher- 542; Lienan v. Lincoln, 9 N. Y. wood, 17 N. Y. 227, 229. See Keene Super. Ct. Rep. (2 Duer) 670. 12 v. Eldridge, 47 Ore. 182. 82 Pac. Leg. Obs. 29; Levy v. Bend, 1 E. D. 803- Smith (N. Y.) 1G9; Drake v. Cock- 3 Bowen v. Emmerson, 3 Ore. 31 §26 CODE PLEADING AND PRACTICE. Pt. I, favor, that they could not fairly and intelligently apply the plain rules provided by the various procedural codes for determining the sufficiency of a pleading under the Code ; and the later judges, brought up under the ' ' case system, ' ' were such hide-bound worshipers of ''precedents" (whether right or wrong on principle) that they could not break away from the early erroneous rulings, and conform their' decisions in the matter to the plain directions of the different codes of procedure. The pioneer in this field of misconstruction, or wilful refusal to follow the plain directions of the Code of Procedure, is usually thought to have been Mr. Justice Jewett, of the New York Court of Appeals,^ and this "lead" has been followed — not with- out vigorous objection and strong criticism on the part of many of the judges, ^ it is to be noted — in all the states in 452; Distler v. Dabney, 3 Wash. 204, 28 Pac. 336. 1 In Allen v. Patterson, 7 N. Y. (3 Seld.) 476, 57 Am. Dec. 542, Mr. Justice Jewett does not, in terms, say that a complaint in the form of the common counts under the common-law system of pleading is sufficient under the Code of Pro- cedure of New York, but what he does say is tantamount to such a holding; the declaration in terms is made in the subsequent case of Graham v. Gammon, 12 N. Y. Super. Ct. Rep. (5 Duer) 697, 13 How. Pr. 360. — "The opinion in that case," Allen V. Patterson, supra, "it must be conceded, is quite out of the general current of authority; and it is diflicult to reconcile it with the numerous decisions in the same state, that announce and reiterate the rule, that the code requires facts to be stated, and not the con- clusions that result from the facts. The opinion assumes, without ar- gument and without citing any authority relating to the construc- tion of any modern code, that the statement, that the defendant is indebted to the plaintiff in a cer- tain sum, is the statement of a fact, and, with equal brevity, it re- verses the long-settled rule, that 'if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them.' " — Bowen v. Em- merson, 3 Ore. 452. 2 Rule doubted in Quimby v. Lyon, 63 Gal. 394, 395; Shade v. Sisson Mill & Lumber Co., 115 Gal. 357, 368, 47 Pac. 135; Kimball v. Lyon, 19 Colo. 266, 35 Pac. 44; Pio- neer Fuel Co. v. Hager (dis. op.), 57 Minn. 76, 47 Am. St. Rep. 574, 58 N. W. 828; Penn Mut. Life Ins. Co. v. Conoughy, 54 Neb. 123, 72 N. W. 422; Bowen v. Emmerson, 3 Ore. 452. "If the question were new, I should be inclined to hold the com- plaint," — pleading common counts only, — "insufficient upon the ground that it does not state facts suf- ficient to constitute a cause of action. Notwithstanding the many 32 ch. III.] COMMON COUNTS. §26 which procedural codes have been adopted,' with the pos- decisions to the contrary, I have never been able to regard the com- mon counts as consistent with our code of practice, which was in- tended to provide a uniform of pleading in all cases. The funda- mental rule in our system of plead- ing requires a statement of the facts constituting the cause of action or defense in ordinary and concise language, so that the pre- cise matter intended may appear upon the face of the pleading, and the opposite party may not be put upon his outside knowledge for the purpose of ascertaining what is meant. I do not think the com- mon counts satisfy this rule, and must regard their retention as im- pairing the system; but a contrary view was adopted at the outset, and has been uniformly adhered to since. The matter is not of sufficient importance to justify us in disturbing a rule so long settled. For these reasons I concur in the judgment."— Sanderson, J., in Ab- adie v. Carrillo, 32 Cal. 172, 175. oARK. — Ball V. Fulton County, 31 Ark. 379; McCreary v. Taylor, 38 Ark. 393. CAL.— Reynolds v. Jor- dan, 6 Cal. 108, 111; Freeborn v. Glazer, 10 Cal. 337, 338; Abadie v, Carrillo, 32 Cal. 175; Hunt v. San Francisco (City of), 11 Cal. 250; De Witt v. Porter, 13 Cal. 171; Wil- kins V. Stidger, 22 Cal. 231, 83 Am. Dec. 64; Miller v. Van Tassel, 24 Cal. 458, 459; Abadie v. Carrillo, 32 Cal. 172, 175; Merritt v. Glidden, 39 Cal. 559, 2 Am, Rep. 479; Fri- mouth V. Frimouth, 46 Cal. 42; Pavisich v. Bean, 48 Cal. 364, 365; Magee v. Kast, 49 Cal. 141, 145; De La Guerra v. Newhall, 55 Cal. 21, 23; Clay v. Carroll, 67 Cal. 19, I Code PL and Pr.— 3 6 Pac. 874; Manning v. Dallas, 73 Cal. 420, 422, 15 Pac. 34; Lake v. Hancock, 76 Cal. 127, 17 Pac. 937; Dashaway Assoc, v. Rogers, 79 Cal. 211, 21 Pac. 742; Castagnino v. Bal- letta, 3 Cal. Unrep. 107, 21 Pac. 1098; Castagnino v. Balletta, 82 Cal. 250, 257, 259, 23 Pac. 127; Vvliitton V. Sullivan, 96 Cal. 480, 4C2, 31 Pac. 1115; Brown v. Po- mona Board of Education, 103 Cal. 531, 535, 37 Pac. 503; Barrere v. Somps, 113 Cal. 97, 45 Pac. 177, 572; Minor v. Baldridge, 123 Cal. 187, 190, 55 Pac. 783; Nichols v. Randall, 136 Cal. 426, 69 Pac. 26; Donegan v. Houston, 5 Cal. App. 631, 90 Pac. 1074; Merchants' Col- lection Agency v. Gopcevic, 23 Cal. App. 216, 137 Pac. 609. COLO.— Campbell v. Shiland, 14 Colo. 491, 23 Pac. 324; Wilcox v. Jamieson, 20 Colo. 158, 36 Pac. 902; Henry Invest. Co. v. Semon- ian, 40 Colo. 269, 90 Pac. 682. IND — Kerstetter v. Raymond, 10 Ind 199; Brown v. Perry, 14 Ind. 32 Wolf V. Schofield, 38 Ind. 175 Johnson v. Kilgore, 39 Ind. 147 Bouslog V. Garrett, 39 Ind. 338 Curran v. Curran, 40 Ind. 473; Jen- nings County Commrs. v. Verbarg, 63 Ind. 107; Humphrey v. Fair, 79 Ind. 410; Jenney Elec. Co. v. Bran- ham, 145 Ind. 314, 33 L. R. A. 395; 41 N. E. 448; Field v. Brown, 146 Ind. 293, 45 N. E. 464. KAN.— Meag- her V. Morgan, 3 Kan. 372, 87 Am. Dec, 476; Clark v. Fensky, 3 Kan. 389; Emslie v. Leavenworth (City of), 20 Kan. 562; Water Power Co. V. McMurray, 24 Kan. 62; Barons V. Brown, 25 Kan. 410, 411; School District No. 46 v. Lund, 51 Kan. 731, 33 Pac. 595; Jenson v. Lee, 67 Kan. 539, 73 Pac. 72; Brasher v. qo 0s V. Thralls, 26 Kan. 780, 781. 3Ginn v. Rogers, 9 111. (4 Gilm.) 131; Peak v. People, 71 111. 278; Fleischman v. Walker, 91 111. 318, 321. See, also, post, § 76. 4 Brown v. Crow's Heirs, 3 Ky. (1 Hord.) 343, 348. 5 Id. 53 § 45 CODE PLEADING AND PRACTICE. [Pt. I, limited by tlie constitution or by statute, the consent of parties can not confer it upon the court, except where the limitation is in regard to certain persons. In such case they may, if competent, waive their exemption and confer jurisdiction.^ And conversely the agreement of parties can not operate to divest a court of its jurisdiction," ex- cept as hereafter noted.^ So where a court of general jurisdiction has summarj^ powers conferred upon it, which are wholly derived from statute, and not exercised according to the course of the common law, or are no part 'of its general jurisdiction, its decisions must be regarded and treated like those of courts of limited and special jurisdiction.^ § 45. Want of, and irkegtjlab exercise of, jurisdiction DISTINGUISHED. That thcrc is a marked distinction existing between the want of jurisdiction and jurisdiction irregu- larly acquired or exercised, should be carefully noted. In the first case, the judgTiient can be attacked in any form directly or collaterally ; in the second, only by direct pro- ceeding in the court which rendered it.^ The rule is, that when judicial tribunals have no jurisdiction of the sub- 6 Gray v. Hawes, 8 Cal. 562; — Kelley v. Kelley, 161 Mass. 118, Norwood V. Kenfield, 34 Cal. 329, 42 Am. St. Rep. 389, 25 L. R. A. 30 Cal. 393; Bates v. Gage, 40 Cal. 809, 36 N. E. 837. 183; Hobbs v. German-American i Whitwell v. Barbier, 7 Cal. 54, Doctors, 14 Okla. 236, 78 Pac. 356. 64; Peck v. Strauss, 33 Cal. 678, 7 Muldow V. Norris, 2 Cal. 74, 56 685; Drake v. Duvenick, 45 Cal. Am. Dec. 313. 455, 466; Ah Men, Ex parte, 77 s See, post, § 56. Cal. 198, 201, 11 Am. St. Rep. 263, !t Hindman v. O'Connor, 54 Ark. 19 Pac. 380; People v. Palermo 643, 13 L. R. A. 490, 498, 16 S. W. Land & Water Co., 4 Cal. App. 722, 3 052; Clark, Ex parte, 87 Cal. 641, 89 Pac. 725; Lyons, Town of, v. 25 Pac. 967; Furgeson v. Jones, 17 Cooledge, 89 111. 534; Rice v. Bol- Ore. 204, 11 Am. St. Rep. 808, 3 ton, 126 Iowa 654, 658, 100 N. W. L. R. A. 620, 20 Pac. 842; De Val 634, 635, 102 N. W. 509; Rigor v. V. De Val, 57 Ore. 137, 109 Pac. 755. State, 101 Md. 473, 4 Ann. Cas. Jurisdiction to grant alimony re- 719, 61 Atl. 634; Sodini v. Sodini, siding in court of another state, 94 Minn. 303, 110 Am. St. Rep. 371, must be proved in order to secure 102 N. W. 862; Kelly v. Harrison,- execution on the foreign jirJgment. 69 Miss. 856, 861, 12 So. 261. 54 ell. IV.] JURISDICTION AT CHAMBERS. § 46 ject-matter on which they assume to act, their proceedings are absolutely void; but, when they have jurisdiction of the subject-matter, irregularities or illegality in their pro- ceedings does not render them absolutely void, though they may be avoided by timely and proper objection, - § 46. JuRisDicTioisr at chambers — In gexer.\l,. It may be noted in passing that ''judge's chambers" are not con- fined to the room in the courthouse which is the usual place for transacting judicial business not required to be done in open court. Consequently "chamber busi- ness" may be done wherever the judge may be found, ^vdthin the territorial jurisdiction of the court/ and in some cases, in the chambers in an adjoining county, under statutory provision.^ However, the general rule is, that all judicial business must be transacted in court, and that there must be some express warrant of the statute to authorize any of it to be transacted at chambers.^ The California constitution does not prohibit the legislature from conferring upon judges authority to hear and deter- mine actions and proceedings at chambers;^ and such authority is granted in respect to certiorari, mandamus and quo warranto.-^ In an instance in which a cause, of which the court has jurisdiction, by consent^ of the parties, is tried by the judge at chambers, the judgment rendered therein is not void, in the absolute sense, for want of a trial in open court."^ Under a constitutional or statutory provision permitting a judge, holding court for another 2 Wayne, Town of, v. Caldwell, 560; Norwood v. Kenfield, 34 Cal. 1 S. D. 483, 36 Am. St. Rep. 750, 332. 47 N. W. 547. 4 Brewster v. Hartley, 37 Cal. 15, 99 Am. Dec. 237. 1 Von Schmidt v. Widber, 99 Cal. 511, 513, 34 Pac. 109; Lux, In re, 100 Cal. 593, 35 Pac. 341; Neagle, In re, 14 Sawy. 232, 265, 39 Fed. 833. •'■' Id.; People Ex rel. Del Fries v. Marin County, 10 Cal. 314; Terri- tory, Ex rel. Eisenmann V. Shearer, 2 Dak. 340, 8 X. W. 135. "■• As to consent conferring juris- 2Coburn V. Pacific Lumber & diction on the court, see. sujira. Mill Co., 46 Cal. 31, 33. g 44 3 Lacro v. Casaneuava, 30 Cal. r Bennett, Ex parte, 44 Cal. S4. 55 §§47,48 CODE PLEADING AND PRACTICE. [l^t. I, judge, to adjourn the trial of the cause from Saturday to Monday, during the interval of adjournment, such judge is not a judge of the court, and can not, at chambers, grant an injunction, although the judge for whom he is sitting could do so.* § 47. Acts which may be done. It may be pre- mised that all orders granted at chambers may be set aside at chambers.^ A judge at chambers may grant leave to renew a motion ;- issue certiorari, and hear the same at chambers;^ issue a mandamus and try the cause ;^ may order suspension of proceedings under an execution until a motion before the court to recall or quash the execution can be heard and disposed of ;'^ may make an order dis- pensing ^\ith undertaking by a municipal officer f receive inventory,'^ and the like. Under statute, a judge at chambers may grant an in- junction ex parte;* discharge a guardian, or exercise any power preliminary to such discharge,^ or may pass upon a demurrer, submitted, even though at the time he is in the *' chambers" in another county.^^ <^ 48. Acts which may not be done. A judge at chambers has no authority to grant a writ of assistance to put into possession a purchaser under a mortgage fore- closure, in the absence of a statute conferring such au- thority;^ no jurisdiction to make an order setting aside an execution on a judgment, and perpetually staying 8 Wallace v. Helena Elec. R. Co., 5 Sanchez v. Carriaga, 31 Cal. 10 Mont. 24, 24 Pac. 626, 25 Pac. 170. 278. 6 Von Schmidt v. Widber, 99 Cal. 1 Coburn V. Pacific Lumber & ^11, 512, 34 Pac. 109. Mill Co., 46 Cal. 31, 33., ^ Lux, In re, 100 Cal. 593. 35 Pac 341 2 Kenney v. Kelleher, 65 Cal. , gullivan v. Trumfo Gold & Sil- ^^2. ver Min. Co., 33 Cal. 385. 3 People ex rel. De Fries v, 9 Warder v. Elkins, 38 Cal. 439. Marin County, 10 Cal. 344. 10 Agard v. Alencia, 39 Cal. 292. 4 Territory ex rel. Eisenmann v. 1 Chapman v. Thomburg, 23 Cal. Shearer. 2 Dak. 340, 8 N. W. 135. 48. 5G Ch. IV.] JURISDICTION AT CHAMBERS. §§ 49, 50 enforcement of the judgment ;2 no power to authorize the plaintiff in a condemnation proceeding to take possession of the property pending the proceedings, and no power to stay all actions against such plaintiff on account of such taking of possession;^ no power to grant continu- ance of cause in election contest;^ no power to make an order directing the clerk of the court to enter on the minutes nunc pro tunc an order alleged to have been made in open court.^ Neither has he power to entertain motions to strike out pleadings or parts of pleadings/' nor make special findings required to be made by the court, without notice to either side.'^ § 49. In Idaho. A judge at chambers, or in vaca- tion, in Idaho, has no power to issue a writ of habeas cor- pus ;^ or at chambers to issue subpoena for witnesses in a criminal cause,- and no jurisdiction to hear proceedings for the condemnation of land under the power of eminent domain, or to enter judgment or decree in such a pro- ceeding.^ § 50. In Kansas. A judge at chambers, in Kansas, may permit the amendment of an affidavit for an order of arrest;^ and he may hear and determine a motion to dissolve an order of attachment, both parties appearing and neither objecting thereto,- notwithstanding the fact that the regular session of the district court is being held 2 Bond V. Pacheco, 30 Cal. 530; i Bowling, In re, 4 Idaho 715, 43 Norwood V. Kenfield, 34 Cal. 329, Pac. 871. 332. :.' Delano v. Logan County Coni- 3 Loomis V. Andrews, 49 Cal. 239. ,^^,.g^ 4 j^j^j^q §3 §7^ 35 p^c. S41. .". Washington & I. R. Co. v. Coeur D'Alene R. & Xav. Co., 3 Idaho (Hahsb.) 263, 28 Pac. 394. 4 Norwood V. Kenfield, 34 Cal 329. sHegeler v. Hecknell, 27 Cal 491. 6 Larco v. Casaneuava, 30 Cal. ' Baker Mfg. Co. v. Knntts. 30 560; Norwood v. Kenfield, 34 Cal. Kan. 356. 2 Pac. 510. 332. 2 Swearinger v. Howser, 37 Kan. T Andrade v. Andrade, 14 Ariz. 126, 14 Pac. 436; Yoakan v. How- 379, 128 Pac. 813. ser, 37 Kan. 438, 14 Pac. 130. 57 §§51,52 CODE PLEADING AND PRACTICE. [Pt. I, by a judge pro tern in the same county.^ But a district judge has no power, at chambers, to review the action of the district court vacating and setting aside an order of court;'* neither can he revive an order of arrest that has been discharged by the district court.^ A prosecution in the nature of contempt of court for the violation of a peremptory writ of mandamus, can not be heard and determined at chambers.^ And a judge at chambers has no authority or power, unless specially conferred by stat- ute, at chambers, to make an order abating, as a public nuisance, a place at which intoxicating liquors are alleged to have been sold in \T.olation of law, and forever enjoin- ing the owner, lessee, or keeper, from maintaining such place, although such order of abatement and sustaining order, under the statute, may be issued by the court.'^ § 51. In Montana. By special statutory provision, in Montana, power is conferred on judges of the district court to hear and determine applications for condemning rights of way to mining claims, and to make complete disposition thereof at chambers. Under such pro\'ision and grant of power, after a final judgment dismissing a petition for such right of way, the judge, at chambers, may also determine and adjudge the costs of the proceed- ing.^ <^ 52. In Nevada. The statute of Nevada,^ confer- ring upon all district judges equal, co-extensive, and con- current jurisdiction and power ; authorizing them to each hold court in any county in the state, and to exercise and perform the duties, functions and powers of the court, and of the judges thereof, and of judges at chambers, 3 Id. * -' Harmer, In re, 47 Kan. 262, 27 4 Suppe, In re, 33 Kan. 588, 7 Pac. 1004. Pac. 268. 1 Granite Mountain Min. Co. v. 5 Id. Weinstein, 7 Mont. 440, 17 Pac. State V. Stevens, 40 Kan. 113, 113. 19 Pac. 365; Price, In re, 40 Kan. i Stats. 1885, p. 60, § 4 (Gen. 156, 19 Pac. 751. Stats. 2495). 53 Ch. IV.] JURISDICTION AT CHAMBERS. §§ 53, 51 does not, by any reasonable interpretation, give the judges at cbambers all the powers, duties, and functions of the organized tribunal called a ''court"; and does not in any manner invest a judge at chambers mth any other power or authority than the usual powers and authority at chambers. 2 § 53. In New Mexico. Under the statute of New Mexico,^ providing that courts shall be always open, and a further provision that injunctions may be granted in aid of any suit at law, provided that such suit has been begun,2 a judge of the district court, at chambers, has jurisdiction to grant an injunction in vacation;^ and the power thus granted is comprehensive enough to include proceedings in, and punishment for, contempt in disobey- ing the injunction thus granted.* § 54. In Oregon. Where the parties, after issue joined, stipulated that the trial of the issues by a jury should be waived, that the evidence should be taken in writing before a referee and the cause submitted to the judge for his decision at chambers ; the e\ddence ha\^ng been so taken and submitted to the judge as agreed, the judge decided the case at chambers and entered the judg- ment at the term then being held ; and it was held that the judgment was not void for want of jurisdiction.^ The statute- authorizing the trial of election-contest cases by the judge at chambers, \\ithout in any way impairing the right to contest the election in the manner otherwise pro- ^dded by law, is not in violation of the state constitution,^ inasmuch as there is no prohibition, either express or by 2 state ex rel. Coffin v. Atherton i Roy v. Horsley, 6 Ore. 382, 25 (County Commissioners), 19 Xev. Am. Rep. 537. 332, 10 Pac. 901, 909. ~ Ore. Misc. Laws, tit. 4, ch. 14, 1 N, M. Comp. Laws, § 1829. p. 574. 2N. M. Laws, 1889, ch. 117, § 1. ^- Ore. Const., art. 7, § !, reading: 3 Sloan, In re, 5 N. M. 590, 25 "The judicial power of the state Pac. 930. shall be invested in a supreme 4 Id. «^urt, circuit courts, and coupt:' 59 §§55,56 CODE PLEADING AND PRACTICE. [Pt. I, implication, preventing the legislature from so provid- ing-^ § 55. In Washington. There being nothing in the organic act prohibiting nor any limitation upon the legis- lature which prohibited the enactment of section 2138 of the Code of 1881, it is valid, empowering judges, in theii* respective districts, at chambers, in vacation, to entertain, try, hear, and determine all actions, causes, motions, de- murrers, and other matters not requiring a trial by jury, and providing that all rulings, orders, judgments, and de- crees made and rendered at chambers, may be entered of record in vacation, and shall have like force and effect as though made or rendered and entered at a regular term of the court, and the fact that a decree in an action to quiet title recited that the cause came on to be heard before the judge at chambers, does not render the decree invalid.^ The manifest intention of the legislature, by this enact- ment, was to have the courts of each district open at all times for the transaction of business specified therein.^ § 56. Ouster of, and loss of, jueisdiction. It has been said that public" policy requires that, so long as contracts are not contra bonos mores or prejudicial to the general welfare, all persons competent to contract should have the utmost liberty to do so ;^ and that the legislature can not prevent persons who are sui juris from making their own contracts.- Applying these principles, it has been recently held that a statute which prevents parties from courts, which shall be courts of 25 Wash. 349, 87 Am. St. Rep. 757, record, having general jurisdiction, 65 Pac. 559. to be defined, limited, and regu- 2 Murne v. Schwabacher, 2 Wash, lated by law in accordance with Ter. 130, 3 Pac. 899, 2 West Coast this constitution." * Rep. 799. 4 Crespay v. Gray, 10 Ore. 345, i Waters v. Wolf, 162 Pa. St. 153, 348. See People ex rel. Wood v. 42 Am. St, Rep. 815, 29 Atl. 646: Draper, 15 N. Y. 532, 543, affirming Adinolfl v. Hazlett, 242 Pa. St. 25. 25 Barb. 344; Leggett v. Hunter, 48 L. R. A. (N. S.) 855, 88 Atl. 869. 19 N. Y. 445, 463. 2 Godcharies v. Wigeman, 113 1 Kalb V. German Sav. & L. Soc. Pa. St. 431, 6 Atl. 354. GO oh. IV.] LOSS OF JURISDICTION. § 5G entering into any agreement which will oust the juris- diction of the court over the subject-matter of the con- tract, is violative of the constitutional right to acquire, possess, and protect property, which includes the right to contract, and is therefore invalid.^ On the other hand, it is said that an unexecuted agreement to arbitrate all disputes between the contracting parties, which shall grow out of the contract, in the execution thereof, both as to liability and as to loss, does not constitute a bar to a suit upon the contract, for the reason that such agree- ment to arbitrate is void, on the ground that it is an attempt to oust the courts of their jurisdiction.'* That the parties to a litigation may submit the controversy to arbi- tration, is well established;^ although some of the cases hold that such submission is impliedly by rule of the court ;^ where the latter doctrine prevails, it is thought the court does not lose jurisdiction to confirm the award and enter judgment thereon. The courts, however, are divided on the question as to whether the submission of a pending litigation to arbitration ousts the court of juris- diction.'^ Loss of jurisdiction does not ensue from mere error or irregularity in the proceeding of the court, as the erro- neous entry of a judgment;^ or a mistake as to the law controlling its decision;^ failure on part of court to act promptly in a matter not mandatory does not work loss 3 Adinolfl V. Hazlett, 242 Pa. St. 6 Zehner v. Lehigh Coal & Nav. 25, 48 L. R. A. (N. S.) 855, 88 Pa. Co., 187 Pa. St. 487, G7 Am. St. Rep, St. 869. 586, 41 Atl. 4G4. 4 Williams V. Branning Mfg. Co.. "^ ^^^ "^^^ collecting the cases 154 N. C. 205, 47 L. R. A. (N. S.) ^'" ^'^"'^ ^°"' ^^ ■- ^- ^- ^^- S) 33 ^ 70 S. E. 290. ^ ^^^^^ ^ Williams, 146 Cal. 3, See, among other cases. State ^9 Pac 527 ex rel. Watkins v. North American 9 People ex rel. Green v. Court Land & Timber Co., 106 La. 621, of Appeals, 27 Colo. 405, 51 L. R. A. 87 Am. St. Rep. 309, 31 So. 172; 105, 61 Pac. 592. See People ex Minneapolis & St. L. R. Co. v. rel. Salomon v. Court of Appeals, Cooper, 59 Minn. 290, 61 N. W, 143. 30 Colo. 11, 69 Pac. 606. 61 §56 CODE PLEADING AND PRACTICE. [Pt. I, of jurisdiction ;^^ fraud and misconduct on the part of the presiding judge being charged, will not oust the court of jurisdiction in a probate proceeding, unless the complaint or petition shows on its face facts clearly supporting the charge;" and where jurisdiction of the person is lost ])y the court because of defective proceedings or irregulari- ties, jurisdiction may be restored to the court by (1) ap- pearance of the defendant, (2) by waiver of objection because of such defect or irregularity,^- or (3) by failure to make timely objection.^^ 10 Thus, under a statute provid- ing that in an action upon a con- tract to recover money only, upon the plaintiff filing proof of personal service of the summons and com- plaint on one or more of the de- fendants the court "shall" there- upon enter judgment for the amount claimed in the complaint, a failure of the court to enter such judgment for the period of four years does not divest the court ol jurisdiction to enter judgment on such proof such service, the pro- vision of the statute not being mandatory and requiring the judg- ment be entered forthwith. — Peirce V. National Bank, 44 Wash. 404, 87 Pac. 488. The court say that the statute, — § 735 of Pierce's Code, § 5090 of Pallenger's Ann. Codes & Stats. — is only one of a number of sections enacted to govern the practice in civil actions, and to construe it as mandatory in the sense of requir- ing the court, under jienalty of loss of jurisdiction over the subject- matter of the action, would render it out of harmony with the other sections. — Id. Remedy for failure to enter judg- ment in such a case, after a rea- sonable lapse of time, is a motion by defendant to dismiss for want of prosecution. — Id. iiLiddicoat v. Treglow, 6 Colo. 47. 12 Absence of judge on day set for trial of a cause does not divest him of jurisdiction of the subject- matter, but it does divest him of jurisdiction of the person of the defendant; entering into a written stipulation for trial of a named subsequent day constitutes a wai- ver of all objections. — Hobbs v. German - American Doctors, 14 Okla. 236, 78 Pac. 356. 13 Hobbs v. German-American Doctors, 14 Okla. 236, 78 Pac. 356. See Jennerson v. Garvin, 7 Kan. 136; Divinney v. Abaun, 24 Kan. 683; Patterson v. McRea, 29 Mich. 258; Simon v. Sempliner, 86 Mich. 136, 48 N. W. 700; Fischer v. Cooley, 36 Neb. 626, 54 N. W. 960; Sagendorph v. Shult, 41 Barb. (N. Y.) 102. 62 CHAPTER V. JURISDICTION KINDS OF. § 57. In general. § 58. General jurisdiction. § 59. Limited jurisdiction — Incomplete and inadequate jurisdic- tion. § 60. Original jurisdiction. § 61. Exclusive jurisdiction. § 62. Concurrent jurisdiction. § 63. Conflict of jurisdiction. § 57. In general. Jurisdiction is divisible into a num- ber of classes, all of wbich are distinct in basis and yet cognate, which can not here be discussed in detail, such as: (1) General Jurisdiction and Limited Jurisdiction; (2) Original Jurisdiction and Appellate Jurisdiction; and (3) Exclusive Jurisdiction, Concurrent Jurisdiction, and Conflicting Jurisdiction. All of these general classes of jurisdiction are considered, in a limited way, in the fol- lowing sections in this part, except Appellate Jurisdic- tion, which will receive attention in a subsequent chapter of this part.^ ^ 58. General jurisdiction. The subject of general jurisdiction of courts is too well understood to require extended discussion in this place; it is sufficient to remark that it comprehends all, or the whole, of the jurisdiction there is in a particular case, and implies authority extend- ing to the whole of the particular cause or subject, action or classes of action.^ Circuit courts and-district courts of sister states are presumed to be courts of general juris- diction,2 and this presumption extends to their acts when sitting as courts of probate.^ 1 See, post, §§ 84, 90, 99. 2 Poll v. Hicks. 67 Kan. 191, 72 1 Grade v. Freeland, 1 N. Y. 228, Pac. 847. 232. 3 See, supra, § 43, footnote 1. 63 §§ 59-61 code pleading and practice. [pt. i, § 59. Limited jurisdiction — Incomplete and inade- quate JURISDICTION. Limited jurisdiction may apply to the nature and organization of the court, to the subject- matter or res of the action, or to the territorial limits to which the authority extends. All courts not of record are of limited jurisdiction, and some courts of record are made by statute courts of limited and not general juris- diction. Jurisdiction, considered in connection with judi- cial functions,^ includes the power to compel a person to appear and answer a complaint, or to punish him for fail- ing to do so; the power to take the property in dispute into the custody of the law pending the determination of the cause; the power to compel the production of evidence and hear the parties ; the power to determine the question of right between the parties and to enforce that deter- mination.^ Where there is a lack of power in either of the things above mentioned, either (1) because intentionally withheld or (2) because of the incapacity of the grantor to confer it, in the first instance it will be a case of limited jurisdiction, and in the second of incomplete and inade- (juate jurisdiction.^ § 60. Original jurisdiction. Broadly speaking, orig- inal jurisdiction — whether generaP or limited^ — is a gen- eral term of limitation, and means power and authority to entertain cases in the first instance as contradistin- guished from appellate jurisdiction;^ but original juris- diction does not import exclusive jurisdiction.* <§i 61. Exclusive jurisdiction. It has been said that there is nothing in the nature of jurisdiction which ren- 1 As to judicial functions, see, 3 Reed v. McCormick, 4 Cal. 342, ante, § 32. 343; Castner v. Chandler, 2 Minn. 2 State ex rel» Watkins v. North 86, 88. American Land & Timber Co., 106 4 Crowell v. Lambert, 10 Minn. La. 621, 631, 87 Am. St. Rep. 309, 369, 372; Jones y. Reed, 3 Wash. 319, 31 So. 172. 61, 27 Pac. 1068; Bors v. Preston, 3 Id. Ill U. S.'252, 28 L. Ed. 419, 4 Sup. 1 See, ante, § 58. Ct. Rep. 407; Pooley v. Luce, 76 2 See, ante, § 59. Fed. 146, 147. 64 ell. v.] ORIGINAL JURISDICTION. § 61 clers it exclusive ;^ yet, as a matter of fact, in practice, as between courts of equal authority and jurisdiction, the court first getting jurisdiction of a cause and of the parties involved thereby acquires the exclusive jurisdiction to try and dispose of such cause.- It is not infrequently that a statute creating an inferior court, gives to it exclusive jurisdiction over designated cases or classes of cases, — e. g., police courts and misdemeanor cases, and the like offenses ; but such exclusive jurisdiction relates to courts of the same class only,^ and has reference to the right to try, or to examine and hold for trial, such cases,^ and does not exclude the authority of a justice of the peace to receive complaints and issue warrants, where he makes them returnable before such court.^ In matters apper- taining to the federal government alone, exclusive juris- diction is held to reside in the federal supreme court and the inferior federal courts, under the constitution and the federal statutes,^ e. g., actions affecting foreign consuls,*^ although there are cases holding that, under the federal statute,*^ state courts have concurrent jurisdiction, with 1 Delafield v. State of Illinois, 2 Co., 148 U. S. 80, 83, 37 L. Ed. 376, Hill (N. Y.) 159, 164, 26 Wend. 192, 377, 13 Sup. Ct. Rep. 457; Cable v. affirming 8 Paige 527, influenced United States Life Ins. Co., 191 by the doctrine laid down by Mr. U. S. 288, 309, 48 L. Ed. 186, 194-5, Justice Washington in Houston v. 24 Sup. Ct. Rep. 74. Moore, 18 U. S. (5 Wheat.) 1, 5 3 State v. Jones, 73 Me. 280, 282. L. Ed. 19. 4 Com. v. O'Connell, 74 Mass. (8 2 See language of court, though Gray) 464, 465. obiter, in Peck v. Jenness, 48 U. S. 5 Id. (7 How.) 612, 624, 12 L. Ed. 841, c Gon-shay-ee, Ex parte, 130 U. S. 846; Buck v. Colbath, 70 U. S. (3 343, 32 L. Ed. 973, 9 Sup. Ct. Rep. Wall.) 334, 341, 17 L. Ed. 257, 260; 542. Riggs V. Johnson County, 73 U. S. ^ Miller Y. Van Loben Sels, 66 (6 Wall.) 166, 204, 205, 18 L. Ed. Cal. 341, 5 Pac. 512, thought to be 768, 779; Taylor v. Taintor, 83 overruled, notwithstanding the vig- U. S. (16 Wall.) 366, 370, 21 L. Ed. orous protest, in Wilcox v. Luce, 287, 289; Providence & New York footnote 9, this section. Steamship Co. v. Hill Mfg. Co., 109 8 Federal district courts given U. S. 578, 606, 27 L. Ed. 1038, 1048, jurisdiction in such action, but 3 Sup. Ct. Rep. 379, 617; Astiaza- there is no concurrent jurisdiction, ran v. Santa Rita Land & Min. in words, conferred upon state I Code PI. and Pr.— 5 (J5 § 62 CODE PLEADING AND PRACTICE. [Pt. I, the federal courts, of suits against foreign consuls f but this jurisdiction on the part of the state courts is thought to be restricted to ''trading" consuls, and not to extend to the ''commercial" consul of a foreign state or coun- try,^" if such a distinction may be properly drawn. State courts have concurrent jurisdiction to enforce rights created or declared by the federal Employer's Liability Act.ii § 62. Concurrent jurisdiction. In addition to what has been said in the preceding section regarding concur- rent jurisdiction of the state courts mth the federal courts, it remains to be added that, while there is nothing in the nature of jurisdiction that makes it exclusive,^ there is no apparent reason why it should not be, and as a matter of fact it is frequently, concurrent.^ The legis- lature, however, can not confer on one court the functions and powers which the constitution has given to another, where that jurisdiction is exclusive.^ If, however, exclu- sive jurisdiction be not conferred upon a court by the courts.— See § 24 of Act, 36 Stats. n St. Louis, I. M. & S. R. Co. v. at Large, p. 1093, 4 Fed. Stats. Hesterly, 98 Ark. 252, 135 S. E. Ann. (2d ed.), p. 842. 874; Bradbury v. Chicago, R. L. & Conflict in decisions as to P. R. Co., 149 Iowa 57, 40 L. R. A. whether the jurisdiction of the (N. S.) 689, 128 N. W. 1. federal courts is made exclusive, i See, supra, § 61, footnote 1. and the state courts ousted of 2 Perry v. Ames, 26 Cal. 372; their concurrent jurisdiction, by Carriaga v. Dryden, 30 Cal. 246; an act of Congress which, without Courtwright v. Bear River & Au- words of exclusion, merely confers burn Water & Min. Co., 30 Cal. jurisdiction on the federal courts. 573, 583-585; Knowles v. Yeates, 31 — See full discussion in note in 48 Cal. 82, 90; Higgins v. Tax Asses- L. R. A. 37-28. sors of Pawtucket, 27 R. L 406, 63 9De Leon v. Walters, 163 Ala. Atl. 36; Robinson v. Fair, 128 U. S. 502, 19 Ann. Gas. 914, 50 So. 935; 53, 83, 32 L. Ed. 415, 421, 9 Sup. Wilcox V. Luce, 118 Cal. 639, 642, Ct. Rep. 30. 62 Am. St. Rep. 305, 307, 45 L. R. A. As to priority of jurisdiction in 579, 582, 50 Pac. 758, 759. courts having concurrent jurisdic- 10 See Redmond v. Smith", 22 tion, see, post, § 117. Tex. Civ. App. 325, 54 S. W. 636; 3 Courtwright v. Bear River & Scott V. Hobe, 108 Wis. 242, 84 Auburn Water & Min. Co., 30 Cal. X. W. 181. 573, 580. 66 Ch. v.] CONCURRENT JURISDICTION. § 62 constitution, then the legislature may confer on other courts the powers and functions which the constitution has conferred on that court.'' The grant of original juris- diction^ in the constitution, to a particular court, of a class of cases, without any words excluding other courts from exercising jurisdiction in the same cases, does not necessarily deprive other courts of concurrent jurisdic- tion in such cases.^ Thus, jurisdiction in rem may exist in several courts at the same time over the same subject/ But the court whose mesne or final process has made the first actual seizure of the thing, must have exclusive power over its disposal and the distribution of the fund arising therefrom,^ and the judgments of all other courts, when properly authenticated and filed in the court having custody of the fund, must be regarded as complete adjudi- cations of the subject-matter of litigation, and be entitled to distribution accordingly.^ Thus, an action for the non- delivery of freight may exist in the federal district court contemporaneously with an action for freight-money in a state court, without fear or danger of any collision or clashing of jurisdiction.^^ There is concurrent jurisdic- tion in the state courts with the federal courts to collect 4 Warner v. Steamship Uncle and Warner v. Steamer Uncle Sam, 9 Cal. 697; Ord v. Steamship Sam, 9 Cal. 710, 733, but overruled Uncle Sam, 13 Cal. 369, 372; Perry in The Moses Taylor, 71 U. S. (4 V. Ames, 26 Cal. 372; American Co. Wall.) 411, 427, 18 L. Ed. 397, 401. V. Bradford, 27 Cal. 360; Hill v. See, also, Meiggs v. Scannell, 7 Smith, 27 Cal. 475, 476; People ex Cal. 405, 408; Fisher v. White, 8 rel. Attorney General v. Davidson, Cal. 418, 422. 30 Cal. 379; Courtwright v. Bear 8 See, ante. § 61, footnote 2. River & Auburn Water & Min. Co., 9 Russell v. Alvarez, 5 Cal. 48. 30 Cal. 573, 580. Abatement of action in state 5 As to original jurisdiction, see, court by prior suit in federal court ante, § 60, and vice versa. See note 82 Am. G Courtwright v. Bear River & St. Rep. 582, 595. Auburn Water & Min. Co., 30 Cal. lo Russell v. Alvarez, 5 Cal. 48. 573. As to pendency of action in state 7Averlllv. Steamer Hartford, 2 and federal court sitting in the Cal. 309, approved in Taylor v. same state, see note 42 L. R. A. Steamer Columbia, 5 Cal. 268, 272, 450, 462. 67 § 63 CODE PLEADING AND PRACTICE, [i*t. 1, assets of a bankrupt, whether the action be legal or equi- table.^^ As between courts of concurrent jurisdiction, the court first acquiring jurisdiction will retain it through- out;^- and the general rule being that courts can not inter- fere with the judgments or decrees of other courts of con- current jurisdiction.^^ This rule is based, not upon the personal rights of the parties to the action, but upon the rights of courts of co-ordinate jurisdiction.^* § 63. Conflict of jurisdiction. In a case of conflict in the jurisdiction of courts ha\ang authority over the parties and over subject-matter or res, the maxim "in praesentia majoris cessant potentia minoris"^ — in the presence of the major the power of the minor ceases — applies, and the inferior court must give way to the one of superior magnitude and power. But in the case of co- ordinate courts of equal power and jurisdiction, it is otherwise. We have already seen that, as between such courts, the one to which the jurisdiction first attaches will have exclusive jurisdiction to hear, try, adjudge and dis- jjose of the cause; and until reversed or set aside, the judgment of such court will be binding upon all other courts. iiWente v. Young, 12 Hun Cof. Prob. (Cal.) 237; Scott v. (N. Y.) 220. Runner, 146 Ind. 12, 15, 58 Am. St. 12 Louden Irr. Canal Co. V. Handy Rep. 347, 44 N. E. 755; Hawkeye Ditch Co., 22 Colo. 102, 43 Pac. 535. Ins. Co. v. Huston, 115 Iowa 630, 13 Anthony v. Dunlap, 8 Cal. 26, 89 N. W. 32; Lake Bisteneau Lum- 27; Revolk v. Kraemer, 8 Cal. 66, ber Co. v. Minns, 49 La. Ann. 68 Am. Dec. 304; Uhfelder v. Levy, 1283, 1285; Beck v. Fransham, 21 9 Cal. 614; Pixley v. Huggins, 15 Minn. 120; Platto v. Duester, 22 Cal. 134; Crowley v. Davis, 37 Cal. Wis. 486. 268, 269; Flaherty v. Kelly, 51 Cal. Exhaustive discussion of the ex- 146; Spreckels v. Hawaiian Com- elusive and concurrent jurisdiction mercial & Sugar Co., 117 Cal. 377, of courts will be found in 1 Pome- 382, 49 Pac. ^53; Wolfe v. Titus, roy's Eq. Jur. (4th ed.), §§ 146-189. 124 Cal. 264, 269, 56 Pac. 1042; 14 Uhlfelder v. Levy, 9 Cal. 614. Murphy, Guardianship of, 1 Cof. i Broom's Legal Maxima, pp. Ill, Prob. (Cal.) 108; Burton, In re, 5 112. G8 CHAPTER VI. JURISDICTION SOURCES OF. § 64. In general. § 65. Legislative regulation and control. § 66. Power to establish courts. § 67. New causes of action. § 68. Judicial authority — In general. § 69. Rule as to jurisdiction. § 70. Elements of jurisdiction twofold. § 71. Over the subject-matter of the action. § 72. Over the person of the defendant. § 73. Over the remedy or relief. § 74. Void proceedings. § 75. Voidable proceedings. § 76. Jurisdiction by consent of parties. § 64. In general. Courts have no inherent power or jurisdiction in and of themselves. They can do nothing not authorized by law,^ and can not transcend the juris- diction conferred by such law.- The source of the powers and jurisdiction of courts is the constitution and the stat- utes establishing and regulating courts. State courts derive their authority, power and jurisdiction from the state constitution and statutes of the particular state,^ and their jurisdiction is limited to the state, or even to the district or other subdivision in which the particular court sits.^ Original or appellate jurisdiction can not be con- 1 Withers v. Patterson, 27 Tex. O'Fallon v. Elliott, 1 Mo. 3G4; 491, 495, 86 Am. Dec. 643, 646. Taaffe v. Ryan, 25 Mo. App. 563; 2 Baker v. Chisholm, 3 Tex. 158; Reucher v. Anderson, 93 N. C. 105; Cowan V. Nixon, 28 Tex. 230; Boll- Messner v. Giddings, 65 Tex. 301. man. Ex parte, 8 U. S. (4 Cr.) 75, 4 Stevens v. Irwin, 12 Cal. 306, 93, 2 L. Ed, 554, 560. 308; Belcher v. Chambers, 53 Cal. See, also, ante, § 39. 635, overruling Hahn v. Kelly, 34 •^ McNealy v. Gregory, 13 Fla. Cal. 391; 94 Am. Dec. 742. 417; Chiapella v. Moni, 5 La. 380; Jjdgment in rem upon publica- 69 § 65 CODE PLEADING AND PRACTICE. [Pt. I, ferred by the consent of tlie parties^ or by a rule of court ;*' but courts may have ancillary and incidental jurisdiction."^ Thus, a court has the additional power and jurisdiction to carry its final determination, whether judgment or decree, into effect, and to take such steps and do such acts as may be necessary for the accomplishment of this purpose.^ And where it is provided generally that when jurisdiction is by statute conferred on a court, all means necessary to carry it into effect are also given, and in the exercise of power conferred, if the method of proceeding be not spe- cially pointed out by statute, any suitable process or mode may be adopted by the court, which mode may appear most conformable to the spirit of the law.^ An inferior court being without jurisdiction in the premises, an ap- pellate court can acquire none by appeal;^" and, on the other hand, where a court's jurisdiction over the subject- matter of an action is appellate only, the cause must be brought to it by an appeal taken in the regular form and manner. ^^ § 65. Legislative kegulation and control. Where state courts are established by the constitution, and their powers and jurisdiction defined, the legislature can not tion against nonresident owner, 7 See Chesapeake & O. R. Co. v. binds the property, but is a nullity Swayze, 60 N. J. Eq. 417, 62 N. J. as a personal claim against such Eq. 369, 47 Atl. 28; Albright v. defendant.— Belcher v. Chambers, Allday (Tex.), 37 S. W. 646; 53Cal. 635; Arnold v.Kahn, 67 Cal. Houghton v. Rice. 54 Tex. Civ. 472. 473. 8 Pac. 36; Loaiza v. Su- ^PP" ^^^' ^^ S. W. 349; Keneweg perior Court, 85 Cal. 11, 28, 20 ^^- ^- Schilansky. 47 W. Va. 287. Am. St. Rep. 197, 206. 9 L. R. A. ^^ S. E. 773; Rice v. Sharpleigh 376. 24 Pac. 707; Blumberg v. Hardware Co.. 85 Fed. 559. Birch. 99 Cal. 416. 417. 37 Am. St. '^ ^^^^^^ ^- ^^"^"^1 Reserve Fund Rep. 67. 68. 34 Pac. 102; Smith v. ^ife Assoc, 50 C. C. A. 339, 61 Supreme lodge. 12 Cal. App. 190, «-. R. A. 717. 112 Fed. 453. reversing 106 Pac. 1103; Pennoyer v. Neff. ^^'^ ^'^- '''' ^^'^'^ ^^O U. S. 95 U. S. 714. 24 L. Ed. 265. ^^'' ^' ^- ^^- ^S?. 23 Sup. Ct. Rep. 707. See not^es 16 L. R. A. 234; 59 ^ ^^.^^ ^ ^^^^^^ ^5 ^^^^^ 254, L. R. A. 735. gy p^^ 4Q 5 See. ante, § 44. lo Baker v. Chisholm. 3 Tex. 158. 6 Bell V. O'Rurke, U La. 121. n Ginn v. Rogers, 9 111. 135. 70 ch. VI.] LEGISLATIVE REGULATION. §65 add to or take away from those powers and that jurisdic- tion;^ but the legislature may prescribe the method or manner in which those powers and that jurisdiction may be exercised,- and such regulation will be binding on the courts, except in those cases in which the regulations in- fringe upon or impair the constitutional powers of the court, and thus practically amounting to a deprivation of power or jurisdiction.^ To this general rule there are certain well-recognized exceptions, which extend the power of the legislature so that it may enlarge the consti- tutional powers and jurisdiction of the courts, or may take away from the courts certain powers and jurisdic- tion invested in them by the constitution. Two illustra- tions of these exceptions must suffice : Where a state stat- ute effects an enlargement of equitable rights, that statute may be administered and those enlarged rights granted or enforced by a federal court within whose district the state is situated, while sitting in that state/ although the 1 But see exceptions noted in last part of section, footnotes 4-7, and Missouri River Tel. Co. v. Na- tional Bank, 74 111. 219. See, post, § 68. 2Harker, Ex parte, 49 Cal. 465, 467; Jessup, In re, 81 Cal. 408, 470, 482, 6 L. R. A. 594, 21 Pac. 976, 22 Pac. 742; Bacon v. Bacon, 150 Cal. 477, 484, 89 Pac. 317, 320; Broadwell v. People, 76 111. 555; State ex rel. Pontchartrain R. Co. V. Judge, 22 La. Ann. 565, 567; Jefferson County Supervisors v. Arrighi, 54 Miss. 668, 672. 3 Id. ■i See, among other cases, Brod- erick's Will, In re, 88 U. S. (21 Wall.) 503, 22 L. Ed. 599; Chap- man V. Brewer, 114 U. S. 171, 29 L. Ed. 85, 5 Sup. Ct. Rep. 805; Gromley v. Clark, 134 U. S. 348, 33 L. Ed. 914, 10 Sup. Ct. Rep. 557; Wehrman v. Conklin, 155 U. S. 324, 39 L. Ed. 173, 15 Sup. Ct. Rep. 132; Bardon v. Land & River Imp. Co., 157 U. S. 330, 39 L. Ed. 720, 15 Sup. Ct. Rep, 651; Divine v. Los Angeles, City of, 202 U. S. 333, 50 L. Ed. 1053, 26 Sup. Ct. Rep. 652; United States Life Ins. Co. V. Cable, 39 C. C. A. 264, 98 Fed. 764; Southern Pine Co. v. Hall, 44 C. C. A. 363, 105 Fed. 88; Williams v. Crabb, 54 C. C. A. 213, 117 Fed. 198, 59 L. R. A. 425; Sawyer v. White, 58 C. C. A. 587, 122 Fed. 227; Brun v. Mann, 80 C. C. A. 513, 151 Fed. 149, 152, 12 L. R. A. (N. S.) 154; American Assoc, v. Williams, 93 C, C. A. 1, 166 Fed. 17; New Jersey & N. C. Land & Lumber Co. v. Gardner- Lacy Lumber Co., 102 C. C. A. 220, 178 Fed. 779; Ames Realty Co. v. Big Indian Min. Co., 146 Fed. 174, 175, 176; North Carolina Min. Co. V. Westfeldt, 151 Fed. 298, 299; 71 §§6G, 67 CODE PLEADING AND PRACTICE. [Pt. I, power or jurisdiction is in excess of that which such federal court possesses under the federal constitution,^ On the other hand, where the legislature, under its power granted by the constitution, erects a municipal corpora- tion and grants to it the power to regulate and control its streets, and the like, it thereby invests such municipal corporation with sovereign power in respect to the things thus granted, and any ordinance passed or regulation made by such municipality withdraws the matter from the cognizance of the courts,** at least in the first instance ; it is only when the municipality exceeds the powers thus granted that the courts can interfere.'^ § 66. Power to establish courts. The power to establish courts may be conferred upon the legislature by the constitution ; and where the power granted relates to courts of civil and criminal jurisdiction, the two jurisdic- tions need not be vested by the legislature in the same court. ^ Under such a power the legislature may grant to new courts a jurisdiction concurrent with the jurisdiction of a court already in existence,- provided, however, that it does not interfere with the constitutional powers and jurisdiction of the pre-existing court. ^ § 67. New causes of action. The legislature may create new rights and duties which will be new causes of action, and may designate a particular court or courts in which cognizable, in which case no tribunal other than the Morrill v. American Reserve Bond 7 Weil v. Ricord, 24 N, J. Eq. Co., 151 Fed. 314, 316; Jahn v. 1G3. Champagne Lumber Co., 157 Fed. , p^^^^j^ ^^ ^^j Novell v. Kent 413; United States v. Leslie, 167 ^^^^^^. Treasurer, 36 Mich. 332, ^®^- ^**- 333; People v. Hurst, 41 Mich. 328, ^ ^^- 333. 6 Stoudinger v. Newark, City of, 28 N. J. Eq. (1 Stew.) 187, 189; ^ Wibarger, Ex parte, 41 Tex. Cr Milhan v. Sharp, 17 Barb. (N. Y.) ^^P- ^14, 55 S. W. 968. 435, 437, 9 How. Pr. 102, affirmed •". See cases footnote 1, this sec^ 28 Barb. 228, 7 Abb. Pr. 220, 27 tion. N. Y. 611, 84 Am. Dec. 314. 72 ,li. \i.] JUDICIAL AUTHOKITY. §68 one designated will have power and jurisdiction to enforce the statute.^ Where the jurisdiction of special cause may be controlled by the legislature that body can not confer jurisdiction over such causes except to such tribunals as are mentioned in the constitution.- Thus, the legislature may authorize judges to perform certain duties at cham- bers in respect to causes,^ but some established court must have jurisdiction of the cause,"* and if the legislature thus confers a power not incidental to a pending cause, the statute will be invalid.^ Where the constitution confers jurisdiction over a designated class of actions upon speci- fied tribunals, the legislature may not confer that juris- diction upon another tribunal or officer.^ <^ 68. Judicial authority — In general. The judicial function is essential to jurisdiction; that function has been already sufficiently discussed.^ A judicial tribunal established by the constitution is in no way dependent on the legislature for its existence, authority, or jurisdic- tion f but an inferior court, or court of especial or limited jurisdiction, left by the constitution to be provided for and established by the legislature, is dependent upon the act of the legislature calling it into being, alike, for its existence, authority, and jurisdiction.^ Courts of the latter 1 Aldrich v. Hawkins, 6 Blackf. i See, ante, § 32. (Ind.) 128. 2 See cases cited footnote 3, this 2 Spencer Creek Water Co. v. section. Valleio, City of, 48 Cal. 70, 72; _ . . , ^ .. . •■ • ^ •' ' r! r^ ■, Commission for transaction or Green v. Superior Court, 78 Cal. „ , . ,. ^, „^ .„ „„_ _,., tlie business ot the supreme court 556, 561, 21 Pac. 307, 541. 3 As to powers and duties at ^^n not be established by the leg- chambers of judges, see, ante, §§ islature.-State ex rel. Hovoy v. ^g 55 Noble, lis Ind. 350, 10 Am. St. Rep. Tspencer Creek Water Co. v. 143. 4 L. R. A. 101. 21 N. E. 244 Vallejo, City of, 48 Cal. 70, 73. 3 Perkins v. Corbin, 45 Ala. 103, r. Carter v. Gear, 197 U. S. 353, 118, 6 Am. Rep. 698; Winter v. 49 L. Ed. 787, 25 Sup. Ct. Rep. 491, Sayre. 118 Ala. 1, 24 So. 89; People affirming 16 Hawaii 244. ex rel. Covell v. Kent County (1 Spencer Creek Water Co. v. Treasurer. 36 Mich. 332, 333; State Vallejo, City of, 48 Cal. 70, 73. v. Smith, 65 N. C. 370. 73 § 69 CODE PLEADING AND PRACTICE. [Pt. I, class may have their powers cut down* or enlarged, or the court may be entirely abolished by an act of the legisla- ture, w^hich created it;^ their obliteration destroys the judicial powers and functions of the judges presiding therein,® in the absence of a reservation or exception in their favor.'^ § 69. Rule as to jukisdiction. The rule at the Eng- lish common law was that jurisdiction was presumed in the case of courts of general jurisdiction,^ and nothing was intended to be outside of the jurisdiction of the court, except that which especially appeared to be so ; but this presumption was not indulged in favor of inferior courts whose jurisdiction was limited, and nothing was regarded as within their jurisdiction except that which was ex- pressly alleged to be.^ This rule as to the presumption as to the jurisdiction of courts still holds good,^ even under the reformed system of judicature.^ The presumption is indulged in favor of county courts, where of general 4 Greer, In re, 58 Kan. 268, 48 Repr. 357; Peacock v. Bell,' 1 Pac. 950. Saund. 73, 75, 85 Eng. Repr. 84, 88. 5 See cases footnote 3, this note. ^ See Haywood v. Collins, 60 111. gj, 333; Morse v. Presley, 25 N. H. 299 7 Perkins v. Corbin, 45 Ala. 103, /crannis v. Superior Court, 143 118, 6 Am. Rep. 698, 702. See Pope ^al. 630. 77 Pac. 647; Parsons v. V. Lewis, 4 Ala. 487; Nugent v. ^gjg^ ^44 ^al. 410, 77 Pac. 1007; State, 18 Ala. 521; Conner v. New Del Campo v. Camarillo, 154 Cal. York, 4 N. Y. Super. (2 Landf.) 647, 98 Pac. 1049; Carey v. Reeves, 355, affirmed 5 N. Y. 285; Com. v. 32 Kan. 718, 5 Pac. 22; English v. Mann, 5 Watts & S. (Pa.) 418; Woodman, 40 Kan. 752, '21 Pac. Kellogg V. Oshkosh, City of, 14 283; Poll v. Hicks, 67 Kan. 191, 72 Wis. 623; Butler v. Pennsylvania, P^c. 847; Beach v. Spokane Ranch 5L U. S. (10 How.) 402, 13 L. Ed. ^ Water Co., 25 Mont. 379, 65 Pac. 472; Blcomer v. Stalley. 5 McL. ^^^' ^^^^^ ^^ ^^^- ^^^P^^ ^- ^^^- ,ro .^. T. ^ ^ n.T .rrr. trlct Court, 38 Mout. 166, 129 Am. 158, 161, Fed. Cas. No. 1559. -^ „ ,„„ „^ , _ ' ,„ „ , St. Rep. 636, 35 L. R. A. (N. S.) lAsto presumptions respecting io98, 99 Pac. 291; Magee v. Big jurisdiction, see, ante, § 43. B^nd Land Co., 51 Wash. 406, 99 2 Stanian V. Davies, 2 Ld. Raym. Pac. 16; Michaelson v. Seattle, 796, 92 Eng. Repr. 31; Winford v. City of, 63 Wash. 230, 115 Pac. Powell, 2 Ld. Raym. 1310, 92 Eng. 167. 74 eh. VI.] RULE AS TO JURISDICTION. §60 jurisdiction,^ as well as in favor of probate courts having exclusive jurisdiction of probate proceedings.^ Where an action is commenced in a court of inferior or limited jurisdiction, the complaint must show affirmatively that the cause is within the jurisdiction of the court ;^ and where a court of general jurisdiction has conferred upon it by statute special, extraordinary and summary powers, which are exercised in a prescribed manner, and not according to the course of the common law, and w^hich powers are no part of its general jurisdiction,^ as to those powers, such court stands in the same position, as to its jurisdiction, as courts of inferior and limited jurisdic- tion f and the facts essential to the exercise of such power must appear from the record,^*' — although it has been said that, under a statute enlarging the power and jurisdiction of the court so that an action may be brought in a county in which the defendant does not reside, it is not necessary to aver in the complaint the facts which will give the pro- cess such extra-territorial force.^^ To render the acts and judgments of the court valid under such a statute, the power must be strictly pursued ;^2 the statute mil be 5 Brown, Ex parte, 3 Okla. Cr. 643; Furgeson v. Jones, 17 Ore. 329, 105 Pac. 577; Rutenic v. Ham- 204, 11 Am. St. Rep. 808, 3 L. R. A. akar, 40 Ore. 444, 67 Pac. 196. 620, 20 Pac. 842; De Vail v. De See Green v. McNeal, 11 Okla. Vail, 57 Ore. 128, 109 Pac. 755, 110 519, 69 Pac. 891, affirmed 11 Okla. Pac. 705. 526, 69 Pac. 893; Magee v. Big lo Furgeson v. Jones, 17 Ore. 704, Bend Land Co., 51 Wash. 406, 99 11 Am. St. Rep. 808, 3 L. R. A. Pac. 16. 620, 20 Pac. 842. 7 Learned v. Tietch, 6 Cal. 432. n Cody v. Ranaud, 1 Colo. 272, 8 Furgeson v. Jones, 17 Ore. 204, 277. See Keijney v. Greer, 3 111. 11 Am. St. Rep. 808, 3 L. R. A. 620, 432; Hamilton v. Dewey, 22 111. 20 Pac. 842. 490. Haywood V. Collins, 60 111. 333; 12 Foster v. Glazener, 27 Ala. Kansas City, St. J. & C. B. R. Co. 306; Territory v. Delinquent Tax V. Campbell, 62 Mo. 585, 588; List, 3 Ariz. 91, 21 Pac. 894; Jones Morse v. Presby, 25 N. H. 302; v. Flavella, 126 Cal. 26, 58 Pac. Carlton v. Washington Ins. Co., 35 312; Corryell v. Lawson, 25 Colo. N. H. 162, 166; Denning v. Corwin, App. 439, 139 Pac. 28; Cohen v. 11 Wend. (N. Y.) 647, 651; Ander- United States, 38 App. (D. C.) 126; son V. Commissioners, 12 Ohio St. Fuller v. Exchange Bank, 38 Ind. 75 § 70 CODE PLEADING AND PRACTICE. [Pt. I, strictly construed against the power unless plainly ap- pearing, and in no case will the words of the statute be extended by implication.^^ § 70. Elements of jurisdiction twofold. The ele- ments of the jurisdiction of courts are twofold: (1) Jur- isdiction over tlie "cause" or subject-matter of the action, and (2) jurisdiction of the persons of the parties liti- gant. A lack of the first is irremediable ;^ a lack of the second may be waived.- A distinction is also to be drawTi between (1) jurisdiction of a ''case" and (2) jurisdiction of a "cause," — that is, of the subject-matter of an action. Jurisdiction of a "case" means authority and power over all the proceedings from tlie initial step, or filing of the complaint, to the completion thereof by the satisfaction of the judgment pronounced or decree rendered.^ Juris- diction of a "cause," or the subject-matter of an action, is the power given by the law of the sovereignty in which the court exists.'* If the sovereign power, — that is, if the constitution or statutes of the state, — has not invested the court with authority and power, — jurisdiction over App. 573, 78 X. E. 206; Easton v. See further cases cited 1 Rose's Badger, 33 N. H. 237; Carlton v. U. S. Notes (2d ed.), PP. 1077 Washington Ins. Co., 35 N. H. 162, et seq. 167; Embury v. Conner, 3 N. Y. 13 gee Umbarger v. Chaboya. 49 523, 53 Am. Dec. 325; McMahon v. cal. 525, 534; Marltham v. Powell, Crean, 109 Md. 666, 71 Atl. 997; 33 oa. 5, 11; Attaquin v. Fish, 46 United States Express Co. v. Hur- Mass. (5 Mete.) 146; Whitney v. lock, 120 Md. 112. Ann. Cas. 1915A, stearns, 52 Mass. (11 Mete.) 320; 566, 87 Atl. 835; Hughes v. Linn Travis v. Tyler, 73 Mass. (7 Gray) County, 37 Ore. 119, 60 Pac. 845; J47. gyck v. Dowley, 82 Mass. (16 Taylor v. Sutherlin-Meade Tobacco Grav) 558 Co., 107 Va. 789, 14 L. R. A. (N. S.) ,1, \ „ „, 1135, 60 S. E. 133; Thatcher v. ^ See, post, § 74. Powell, 19 U. S. (6 Wheat.) 119, , " ^ee, post, § 75. 120, 5 L. Ed. 221; Williamson v. s Comstock Milling & Min. Co. v. Berry, 49 U. S. (8 How.) 495, 531, Allen, 21 Nev. 325, 31 Pao. 434. 12 L. Ed. 1170, 1185; Mayhcw v. 4 Weiner v. Rumble, 11 Colo. Davis, 4 McL. 213, 221, Fed. Cas. G07, 19 Pac. 760; Taylor, In re, 7 No. 9347; Edwards V. Bales County, S. D. 382, 58 Am. St. Rep. 813, 117 Fed. 529. 45 L. R. A. 136, 64 N. W. 253, 7G Ch. VI.] JURISDICTION — SUBJECT-MATTER. §(1 the subject-matter of the cause, — none exists,^ and any and all acts in the premises on the part of the court in respect thereto are void, and any judgment pronounced or decree rendered is a nullitj\" <^ 71. Over the subject-matter of the action. Jurisdiction over the subject-matter of an action is power granted by the sovereignty,^ the exercise of which may be governed by circumstances and contingencies, and may depend upon : 1. Situation of the res, and whether the same is witliin the jurisdiction of the court, where the object of the action is some disposition of the res ; in any other case the situ- ation may not be determinative of jurisdiction, e. g., when the question before the court relates to the title to the land, trespass upon the land, or the enforcement of a trust upon lands in another state.^ Where all the par- ties interested are properly before the court, and the action relates to the enforcement, or to the rescinding and return of money, under a contract of sale and purchase of lands located in another state f or of the cancellation of a deed to such lands ;"* or the enforcement of a trust relat- ing to lands in another state,^ — in any of which cases the court has jurisdiction to dispose of the matter and enforce its judgment pronounced or decree rendered, by process against the party affected.^ •■i See, ante, §64. 3 Loaiza v. Levy, 85 Cal. 11, 20 6 See, post, § 74. Am. St. Rep. 197, 9 L. R. A. 376, 1 See, ante, § 70. 24 Pac. 707; People's State Bank 2 First Nat. Bank v. Eastman, ^ T'Miller, 83 Kan. 272. 116 Pac. 144 Cal. 487, 103 Am. St. Rep. 95, 1 Ann. Cas. 620, 77 Pac. 1043; Gassert v. Strong, 28 Mont. 18, 98 Pac. 497; Lindsley v. Union Silver Star Min. Co., 26 Wash. 301, 66 •' Manley v. Carter. 7 Kan. App. Pac 382; State v. Superior Court, §6. 52 Pac. 915; Gassett v. Strong. 52 Wash. 149, 100 Pac. 198; Olym- 38 Mont. 18, 98 Pac. 497. pia Min. & M. Co. v. Kerns, 64 r, People's State Bank v. T'Mil- Wash. 545, 117 Pac. 260. ler, 85 Kan. 272, 116 Pac. SSI. 77 884. 4 McGee v. Sweeney, 84 Cal. 100, 23 Pac. 1117. § 72 CODE PLEADING AND PRACTICE. [Pt. I, 2. Place of accrual of cause of action may'^ or may iiot^ have a determinative effect upon the jurisdiction of the court. 3. Local or transitory nature of the action may affect jurisdiction. Thus, where a trespass upon land and a removal of sand therefrom occurs in one state, and the sand is transported to another state and there converted, an action may be maintained in the latter state to recover the value of the sand.^ But where a right is granted or a liability imposed by the statute of another state or by the federal statute, the cause will be entertained for the pur- pose and upon the terms permitted by the lex loci, only.^" Corporate stock the subject of an action, the situs of the res is the state where the corporation has its main office. ^^ 4. Nature and grounds of action, also, may affect the court and its jurisdiction. Thus, where an election con- test in the courts would be vain and fruitless, for the reason that another trial by the state senate would be required to determine the rights of the parties contestant, a court will not assume jurisdiction for any purpose.^^ § 72. OVEK THE PERSON OF THE DEFENDANT. JuriS- diction on the part of the court over the person of the defendant, is essential to the validity of the proceedings and of any judgment to be pronounced or decree ren- dered, in all those cases in which it is sought to bind the party personally; but jurisdiction of the person of the defendant is not essential in those cases in which the res is taken into the custody of the court to abide the final determination of the action, and when the judgment to 7 Lawson v. Tripp, 34 Utah 28, 9 McGonigle v. Atchison, 33 Kan. 95 Pac. 520. 726, 7 Pac. 550. 10 Ryan v. North Alaska Salmon 8 See McGonigle v. Atchison. 33 ^^^ ^53 ^^j ^gg^ g^ ^^^ ^^^ Kan. 726, 7 Pac. 550; Schmit v. nwaite v. Kern River Min. & Day, 27 Ore. 110, 39 Pac. 870; Devel. Co., 157 Cal. 16, 106 Pac. 98. Kuhn V. McKay, 7 Wyo. 42, 49 12 Ellison v. Barnes, 23 Utah Pac. 473, 51 Pac. 205. 183, 63 Pac. 899. 78 eh. VI.] JURISDICTION OVER REMEDY. § 73 be pronounced or decree to be rendered is to bind tbe res only. Jurisdiction of tlie person of a defendant can be secured only by the service of process upon him in the manner provided by law, and within the territorial juris- diction of the court/ or within some county within the state, where extraordinary powers are granted to the court permitting suits on contracts to be brought in any county in the state and service of process to be made in any other county of the state. Jurisdiction of the court over the person of the defendant depends upon the law of the state in which the court sits. Where the law of the state of the court provides that service may be made upon a nonresident defendant by publication or substituted ser- \dce, such a service will give the court jurisdiction within the state, but any judgment that may be rendered in the action Avill have no extra-territorial force and effect, and can not be made the basis of a suit in a state which does not recognize the doctrine of such service by publication or substituted service.^ The subject of service of process, and the requisites and sufficiency to give the court juris- diction, will be treated in a subsequent chapter.^ § 73. Over the remedy or relief. In those cases in which the court has no power to enforce their determi- nation, the authority of the court is incomplete and insuf- ficient^ and courts will decline to exercise the jurisdic- tion,^ when it is intended to be complete.^ Under the reformed systems of judicature, in which the same court has jurisdiction over actions at law and suits in equity, 1 See Bush v. Hanson, 70 III. Life Ins. Co., 24 N. J. L. (4 Zab.) 480; Dumont v. Dumont (N. J. 222, 232. Eq.), 45 Atl. 107; Lange v. Bene- 3 gge, post, part I, ch. VI. diet, 73 N. Y. 12, 27, 29 Am. Rep. 80, affirming 8 Hun 362, which re- ' ^^^^' ^ ^^• versed 48 How. Pr. 465, writ of ^ See, ante § 71, paragraph 4. error dismissed 99 U. S. 62, 25 3 State ex rel. Watkins v. North L. Ed. 469; King v. Poole, 35 Barb. American Land &■ Timber Co., 106 (N. Y.) 242, 244. La. 621, 87 Am. St. Rep. 309, 31 2 See Manlin v. Trenton Mut. So. 172. 79 §§ 74, 75 CODE PLEADING AND PRACTICE. [Pt. I, the plaintiff may place his action either at law or in equity without raising a jurisdictional question, — it presents a question of practice, simply, — the court having jurisdic- tion over the remedy or relief in either form of the action.^ § 74, Void proceedings. It has already been pointed out that defects and irregularities in court pro- ceedings are of two classes, to ^vLt: (1) Irremediable, and (2) remediable.^ Where the proceedings are void they can not be remedied, and all that the court does goes for naught. Thus, where the court has no jurisdiction over the subject-matter of the action, its proceedings, determi- nation and judgment are void, in the largest sense of that term, i. e., can not be remedied or made valid and given effect.- Want of or defects in jurisdiction of the subject- matter being fatal can not be waived,^ and no act or con- sent^ of the parties can confer jurisdiction on the court in such a case, because the parties to an action can not create a jurisdiction the sovereign power has not vested in the court.^ § 75. Voidable proceedings. Proceedings of a court which are voidable merely, are distinguishable from those which are void in that, though void in one sense of that term,^ they may be remedied, and when remedied the 4 Harrigan V. Gilchrist, 121 Wis. Mass. (21 Pick.) 10: Carlisle v. 127, 99 N. W. 909. Weston, 38 Mass. (21 Pick.) 536: 1 See ante § 38 Hurd v. Tombs, 8 Miss. (7 How.) o* * D- 1 ^ oc -NT Tj 233; Coffin v. Tracy, 3 Cai. (N. Y.) -•State V. Richmond, 26 N. H. n/.A T^ T-> OA nr- A^}^ 129; Buan v. Thomas. 2 Johns. 260; Damp v. Dane, 20 Wis. 431. (N. Y.) 190; Blin v. Campbell, 14 3 Abat V. Songy, 7 Mart. (La.) j^^^^^ ^^ y.) 433; Starr v. Roch- 275; Brooks v. Davis, 34 Mass. (17 ^^^^^^ ^.^^^^^ ^^^ Trustees, 6 Wend. Pick.) 149; Moore v. Ellis, 18 Mich. ^^ ^^ ^g^^ ^^g. ^^^^^^ ^ ^^^^^^ 77; State v. Richmond. 26 N. H. ^^^.^ ^..^j^^^ ^^ Trustees, 12 Wend. 240: Stoughton v. Mott, 13 Vt. 181. ^^ y.) 165, 167; Gillard v. Sellers, 4 Consent as conferring jurisdic- 2 Ohio St. 227; McHenry v. Wal- tion when and to what extent.— jgn, 17 Tenn. (2 Yerg.) 444; Col- See, ante, § 44; post, § 76. lamer v. Page, 25 Vt. 389. oGinn v. Rogers, 9 111. 134; 1 State v. Richmond, 26 N. H. Preston v. Boston, City of, 38 239. 80 ell. ^'I.] JURISDICTION VOIDABLE PROCEEDINGS. § 75 judicial authority is complete; such proceedings may be binding on the parties until the judgment is reversed or set aside, and the defects may be waived. Thus, want of jurisdiction of the court over the parties renders the proceedings void in the sense that they may be set aside and held for naught on the proper steps taken timely for that purpose; but they are not void in the broad sense of that term, i. e. they are not irremediable, as in the case of a want of jurisdiction over the subject-matter of the action. Such a defect is capable of being remedied by proper procedure, or it may be waived by the party entitled to object on that ground, who \\dll thereafter be bound by the proceedings and judgment, in all cases where the court had authority to do the thing or render the judgment without the consent of the parties thereto. Thus, the party over whom the court has not acquired proper jurisdiction, may appear and submit the cause to the trial and determination of the court ;- by so doing and through such submission he waives any objections he might have presented because of the want of, or of defec- 2 De Jarnette v. Dryfus, 166 Ala. bany, City of, 15 Wend. (N. Y.) 138, 51 So. 932; Lord v. Hendrie & 262, 264; affirmed, 18 Wend. 169; B. Mfg. Co., 13 Colo. 393, 22 Pac. Heard v. Holbrook, 21 N. D. 348, 782; Bostwick v. Perkins, 4 Ga. 131 N. W. 251, distinguishing 50; Kinsell v. Cahn, 185 111. 208, 56 Miner v. Frances, 3 N. D. 549, 58 N. E. 1119; People ex rel. Thomp- N. W. 343 because of amendment son V. Smythe, 232 111. 242, 83 N. E. of statute; Gulf Pipe Line Co. v. 821; Hall V. Williams, 23 Mass. (6 Vanderberg, 28 Okla. 637. Ann. Pick.) 232, 237, 17 Am. Dec. 356; Cas. 1912D, 407. 34 L. R. A. (N. S.) Allen V. Welch, 125 Mo. App. 278, 661, 115 Pac. 782; Campbell v. Wil- 102 S. W. 665; Lesan Advertising son, 6 Tex. 393; St. Louis, I. M. & Co. V. Castleman, 165 Mo. App. 575, S. R. Co. v. Bass (Tex. Civ. App. 148 S. W. 433; State v. Richmond, 1911), 140 S. W. 860; Hoxie v. 26 N. H. 242; Reynolds v. Orvis, Wright, 2 Vt. 266; Corbett v. Phys- 7 Cow. (N. Y.) 269, 272; Shumway icians" Casualty Assoc, 135 Wis. V. Stillman, 6 Wend. (N. Y.) 447, 505, 16 L. R. A. (N. S.) 177, 115 449, 2 Am. Lead. Cas. 778, 820; N. W. 365; Hudson Coal Co. v. Squires, Ex parte, v. Broome Hauf, 18 Wyo. 425, 109 Pac. 21; County Common Pleas, 10 Wend. Mayhew v. Thatcher, 19 U. S. (6 (N. Y.) 600; Van Wormer v. Al- Wheat.) 129, 5 L. Ed. 223. I Code PI. and Pr.— 6 gl § 76 CODE PLEADING AND PRACTICE. [Pt. I, tive, service of the process upon liim.^ This waiver cures the defect of the want of jurisdiction of the person on the part of the court. Such act of appearance and sub- mission is but consenting that the court might do what it already had the power to do, but for the want of or defect in the ser\dce of process. This is quite a different thing from attempting, by consent of the parties, to con- fer upon a court jurisdiction or a power the sovereign state had not invested it with.^ The subject of jurisdic- tion through service of process, manner or service, defects in service, and the remedying or waiver of same, will be fully treated in a subsequent chapter.^ '§> 76. Jurisdiction by consent of parties. As has already been pointed out,^ the general rule is that where jurisdiction is not conferred by law over the subject- matter of an action, it can not be conferred by acquies- cence or consent of the parties to the suit;- and neither silence nor consent of the parties will justify a court in retaining jurisdiction of an action on a contract which is 3 Harrison v. Harrison, 20 Ala. 1033; Indianapolis & C. R. Co. v. 629, 56 Am. Dec. 227; Simonds v. Renner, 17 Ind. 135; Doctor v. Parker, 42 Mass. (1 Mete.) 510; Hartman, 74 Ind. 221; Winge v. Smith V. Whittier, 9 N. H. 464; State, 99 Ind. 343; Tucker v. Sel- Hanson v. Hoitt, 14 N. H. 60; lers, 130 Ind. 514, 30 N. E. 531; Thompson v. Steamboat Julius D. Johnson v. Bouton, 56 Neb. 626, 77 Morton, 2 Ohio St. 26, 28, 59 Am. N. W. 57; Armstrong v. Mayer, 60 Dec. 658. Neb. 423, 83 N. W. 401; Crawford See note 23 L. R. A. 288. County v. Hathaway, 61 Neb. 317, „. T , rn Tv/r- 1QO. 85 N. W. 303; Vila V. Grand Island 4 Rice V. Locke, 59 Miss. 192; x- w t p /^ a r. ao ^ ,, T, or tr*. ooo Elec. Light, Ice & C. S. Co., 68 CoUamer V. Page, 35 Vt. 389. ^^ ^ ooo -^n « o. « .«« i Neb. 222, 110 Am. St. Rep. 400, 4 5 See part I, ch. VI. ^„„_ Cas. 59, 63 L. R. A. 791. 94 1 See, ante, § 44. N. W. 136; Edney v. Baum, 70 Neb. 2 Ball V. Putnam, 123 Cal. f34, 159, 97 N. W. 252; Hobbs v. Ger- 55 Pac. 773; Stimson Computing man-American Doctors, 14 Okla. Scale Co. v. Superior Court, 12 Cal. 236, 78 Pac. 356; Catlin v. Jones, App. 536, 107 Pac. 1013; Whipple 56 Ore. 492, 108 Pac. 633; White v. V. Stevenson, 25 Colo. 447, 55 Pac. Seely, 1 Utah 191; Conant v. Deep 188; McKinnon v. Hall, 10 Colo. Creek & C. Valley Irr. Co., 23 Utah App. 291, 50 Pac. 1052; Wayne v. 627, 90 Am. St. Rep. 721, 66 Pac. Alpach, 20 Idaho 144, 116 Pac. 188. 82 ch. VI.] JURISDICTION BY CONSENT. §7(J void because against public policy.^ Likewise a .iudge may not, by consent of the parties to an action, delegate his judicial authority or power to another person, and adopt the acts of such other person as his own.^ Neither acquiescence nor consent of the parties can give a court jurisdiction of or power over an appeal where the law gives none f and, conversely, consent can not confer upon a court of appellate jurisdiction only, powers to hear and determine a cause in the first instance.^ 3 Ball V, Putnam, 123 Cal. 134, 55 Pac. 773. 4 See Andrews v. Wheaton, 23 Conn. 105; Hall v. Marks, 34 111. 362; Hords v. Burton, 79 111. 509; Hoagland v. Creed, 81 111. 506; Winchester v. Ayres, 4 G. Greene (Iowa) 104; Michales v. Hine, 3 Iowa 479; Schooley v. Thorn, I N. J. L. (Coxe) 71; Williams, Ex parte, 12 Tenn. (4 Yerg.) 579. 5 Moore v. Ellis, 18 Mich. 77; Clark V. Conn, 1 Munf. (Va.) 161; Dykeman v. Budd, 3 Wis. 643. 6 Ginn v. Rogers, 9 111. 134 Fleschman v. Walker, 91 111. 321 Collins V. Collins, 37 Pa. St. 388 White V. Buchanan, 46 Tenn. (6 Coldw.) 33. 83 §" §78. § 79, §80, §81, §82. §83. §84. §85. §86. §87. §88. §89. §90. §91. §92. §93. §94. ^9o. §96. §97. §98. §99. §100. §101. CHAPTER VII. JURISDICTION 01- STATE COURTS. In general. Particular jurisdiction of state courts. California courts — Constitutional jurisdiction. Supreme Court — Formation of. Election and term of office of justices. Vacancies: Disqualification: Inability to act. Jurisdiction of— Nature and extent. Appellate and original jurisdiction. Amount in controversy. Rules of procedure. District Courts of Appeal — Nature of courts. The districts, and places of holding court. Justices : term of office : vacancies. Appellate and original jurisdiction. Transfer of causes to and from. Superior Courts — Courts of general original juris- diction. Election and term of office of judges. Presiding justice — Selection and duties. Vacancies : forfeiture of office. Holding court in another county. Judges pro tempore. Jurisdiction — In general. Original and appellate jurisdiction. Amount in controversy. k Juvenile Court — Dependent and de- linquent children. § 102. Jurisdiction in specific classes of cases — Abate- ment of nuisance. § 103. Divorce and annulment. § 104. Forcible entry and detainer, § 105. Fugitives from another state. 84 ell. VII.] STATE COURTS — IN GENERAL. § 77 § 106. Lost record : presumption. § 107. Partition fence — Recovery of value. § 108. Person or property in another state. § 109. Probiite matters. § 110. Taxes and assessments. § 111. Validity of election by corporation. § 112. Justices' Courts — Establishment of. §113. Term of office of justices: vacancies: holding over. §114. Jurisdiction — In general. § 115. Jurisdiction must affirmatively appear. §116. Title or possession of real property in- volved — Certification to Superior Court. § 117. Priority of jurisdiction — State and federal courts. §77. In general. By the phrase, '^ jurisdiction of a state court," is usually meant ''within the state. "^ In a constitutional provision requiring the jurisdiction of the several District Courts — or other classes of inferior state courts — to be uniform, the word embraces not only the subject-matter of the action, but also the territory within which the court may act or send its process. ^ Whenever the constitution or the statute prescribes cer- tain specific acts to be done as prerequisite to the acquir- ing of jurisdiction or to the enforcement of a legal rem- edy, such acts must be substantially performed in the manner prescribed.-'' In the case of states recently ad- mitted into the Union, while the jurisdiction of the courts of such states extends to hearing and determining cases left pending in the late United states territorial courts, 1 Stevens v. Irwin, 12 Cal. .306, Arbitration Statutes, being in 308. derogation of tlie common law, 2 State V. Magney, 52 Neb. 508, must be strictly pursued, in order 72 N. W. 1006. See Newburn v. to render the proceedings valid. — Durham, 10 Tex. Civ. App. 655, 32 Ready v. Tampa Elec. Co., 51 Fla. S. W. 112. - 296; 41 So. 537; Burkland v. John- " Steel V. Steel. 1 Nev. 27, 31; son, 50 Neb. 865, 70 N. W. 391. Paul V. Armstrong, 1 Nev. 82, 97. 85 § 78 CODE PLEADING AND PRACTICE. [Pt. 1, to whicli they are successors,* such jurisdiction does not extend to a right to hear and determine an action involv- ing the right of an adverse claimant to public lands.^ § 78. Paeticulak jurisdiction of state courts. State courts have jurisdiction in the following cases, among others, over subject-matter situated within the exclusive control of the United States government, or over parties, subjects of a foreign government, resident within the state : 1. Assault and battery. — In an action for assault and battery in a United States navy yard although the state has ceded exclusive jurisdiction of that place to the United States.^ So, also, state courts have jurisdiction of crimes committed in the United States military reservation of Fort Leavenworth, for the reason that such reservation was not purchased with the consent of the state of Kan- sas.2 The act of the legislature, ceding the navy yard at Brooklyn to the United States — which provides that the cession ''shall not prevent the operation of the laws of the state" within the same — has the effect of preserving the jurisdiction of the state over offenses committed on board a government ship in the navy yard, and over the person of the offender.^ 2. Contracts. — State courts have jurisdiction over ac- tions on a contract made in a foreign country,* or of an action on a policy of insurance issued in the state by a resident agent of a foreign insurance company.^ 4 Hastings v. Johnson, 2 Nev, 2 Clay v. State, 4 Kan. 49. 190; Sparrow v. Strong, 2 Nev. 3 People v. Lane, 1 Edm. Sel. 362, 364. Cas. (N. Y.) 116. 5 Grandin v. La Bar, 3 N. D. 446, 4 Skinner v. Tinker, 34 Barb, 57 N. W. 241. (N. Y.) 333. 1 Armstrong v. Foote, 11 Abb, 5 Bums v. Provincial Ins. Co., 13 Pr. (N. Y.) 384. Abb. Pr. (N. Y.) 425, 35 Barb. 525; Compare: Dibble v. Clapp, 31 Watson v. Cabot Bank, 7 N. Y. How. Pr. (N. Y.) 420, Sheld. 123. Super. (5 Sandf.) 423. 86 ch. VII.] PARTICULAR JURISDICTIONS. §78 3. Customs and duties. — Of actions by collectors of United States customs upon receiptor 's agreement f and of actions on bonds given for duties to the United States.' 4. Foreign consul. — We have already seen that there is a conflict in the decisions of the state as to whether a federal statute giving the federal district courts jurisdic- tion of actions against foreign consul confers upon the state courts concurrent jurisdiction in actions against foreign consul.^ 5. Foreign governments. — Foreign governments may sue in the state courts in their federative names, ^ 6. Foreign residents. — State courts have jurisdiction in actions against foreign executors or administrators who are residents of the state.^^ 7. Habeas corpus. — To discharge on habeas corpus per- sons enlisted in the United States army.^^ 6 Sailly V. Cleveland, 10 Wend. (N. Y.) 156. 7 United States v. Dodge, 14 Johns. (N. Y.) 95. 8 See, ante, § 61, footnotes 7 et seq. and text going therewith. Delafield v. Illinois, State of, 2 Hill (N. Y.) 159, 26 Wend. 192, affirming 8 Paige Ch. 527; Burrall V. Jewett, 2 Paige Ch. (N. Y.) 134; Gibson v. Woodworth, 8 Paige Ch. (N. Y.) 132; Mills v. Thursby, 2 Abb. Pr. (N. Y.) 432, 437, 12 How. Pr. 385; Mexico, Republic of, v. Arrangois, 3 Abb. Pr. (N. Y.) 470; Mexico, Republic of, v. De Aran- gois, 11 How. Pr. (N. Y.) 1; af- firmed, 12 N. Y. Super. (3 Duer.) 634; Manning v. Nicaragua, State of, 14 How. Pr. (N. Y.) 517. 10 Sere v. Coit, 5 Abb. Pr. (N. Y.) 481; Gulick v. Gulick, 33 Barb. (N. Y.) 92, 21 How. Pr. 22; Montalvan v. Clover, 33 Barb. (N. Y.) 190. See, also, post, § 108. Foreign executor or administra- tor can not be sued in courts of law of New York; they are with- out jurisdiction in the matter. — Metcalf V. Clark, 41 Barb. (N. Y.) 45. Same is true in Nebraska. See Burton v. Williams, 63 Neb. 435, 88 N. W. 765. Administrator without power to redeem intestate's land in another state from mortgage by setting off waste committed by the mort- gagee after intestate's death. — Price V. Ward, 25 Nev. 213, 46 L. R. A. 463, 58 Pac. 849. — Judgment against administra- tor in one state has no binding effect upon administrator in an- other state of the same estate. — • Braithwaite v. Harvey. 14 Mont. 208, 43 Am. St. Rep. 625, 27 L. R. A. 101, 36 Pac. 38. See .Jefferson v. Beall, 117 Ala. 440. 67 Am. St. Rep. 177, 25 So. 44; Johnston v. McKiu- non, 129 Ala. 225, 29 So. 696. See full collection of authorities in note 27 L. R. A. 101117. 11 Carlton, In re, 7 Cow. (N. Y.) 87 §78 CODE PLEADING AND PRACTICE. [Pt. I, 8. Property out of state. — ^Where jurisdiction of the person is axjquired, state courts have equitable jurisdic- tion in actions respecting real estate, even if the property is situated out of the state. ^- They have jurisdiction in an action for a breach of covenant to convey real prop- erty situated in a foreign state. ^^ Thus, in the leading case of Penn v. Lord Baltimore, ^^ specific performance of a contract for lands lying in America was decreed in England. So, also, in the case of The Earl of Kildare v. Sir Morrice Eustace and Fitzgerald,^^ it was held that a trust in relation'to lands lying in Ireland may be enforced in England if the trustee live in England. So if the sub- ject of the contract or trust be within the jurisdiction, but the parties are not.^*^ But the state courts have no 471; Fergeson, In re, 9 Johns. (N. Y.) 239; United States v. Wyngall, 5 Hill (N. Y.) 16; Dabbs, In re, 12 Abb. Pr. (N. Y.) 113, sub nom. Dobbs, In re, 21 How. Pr. 68. Jurisdiction by habeas corpus on commitment by federal court. — • See Husted, In re, 1 Johns. Cas. (N. Y.) 136; Hopson, In re, 40 Barb. (N. Y.) 34; Barrett, In re, 42 Barb. (N. Y.) 479, 25 How. Pr. 380. 12 Vail V. .lones, 31 Ind. 467; Noble V. Grandin, 125 Mich. 383, 84 N. W. 465; Silver Camp Min. Co. V. Dickert, 31 Mont. 488, 3 Ann. Cas. 1000, 67 L. R. A. 940, 78 Pac. 967; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Will- iams V. Fitzhugh, 37 N. Y.*444; Sloan V. Bird, 162 N. Y. 327, 30 N. Y. Prac. Rep. 361, 56 N. E. 752; Ward V. Arredondo, 1 Hopk. Ch. (X. Y.) 243, 14 Am. Dec. 543; Slat- ter V. Carroll, 2 Sandf. Ch. (N. Y-) 573; De Klyn v. Watkins, 3 Sandf. Ch. (N. Y.) 182; Chase v. Knicker- bocker Phosphate Co., 32 App. Div. (N. Y.) 400, 53 N. Y. Supp. 220; Mead v. Brockner, 82 App. Div. (N. Y.) 480, 81 N. Y. Supp. 594; Mussina v. Belden, 6 Abb. Pr. (N. Y.) 165; House v. Lockwood, 40 Hun (N. Y.) 532; Reading v. Hoggin, 58 Hun (N. Y.) 450, 12 N. Y. Supp. 368; Buel v. Balti- more & O. S. W. R. Co., 24 Misc. (N. Y.) 646, 53 N. Y. Supp. 749; Kirdahi v. Basha, 36 Misc. (N. Y.) 715, 74 N. Y. Supp. 383; Johnston V. Wadsworth, 24 Ore. 494, 34 Pac. 13. See, also, post, § 108. 13 Bailey v. Rider, 10 N. Y. 363; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Mott V. Coddington, 1 Abb. Pr. N. S. (N. Y.) 290; Fenner v. San- born, '37 Barb. (N. Y.) 610. 14 Penn v. Lord Baltimore, 1 Ves. Sr. 444, 42 Eng. Repr. 1132, 2 Lead. Eq. Cas. 1809-1832. 10 Earl of Kildare v. Sir Morrice Eustice, 1 Vern. 419. 23 Eng. Repr. 559. ic Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Cleveland v. 88 ell. VII.] CALIFORNIA COURTS. § 79 jurisdiction of an action for injury to real estate out of that state.^^ 9. Torts generally. — State courts have jurisdiction of actions for torts committed in a foreign state, where the defendant is served with process within the state.^^ So, also, for a fraudulent conspiracy formed in another state. ^'^ 10. United States or United States officers. — The United States or a state may consent to be sued in a state court.-^ Or an action may be maintained in a state court against officers of the United States government in cer- tain cases.-^ § 79. California courts — Constitutional jurisdiction. In California, prior to the adoption, in 1879, of the pres- ent constitution, the jurisdiction of the several courts was fixed by the constitution, which prescribed that "the judicial powers of the state shall be vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts, and in justices of the peace, and in such record- ers' courts and other inferior courts as the legislature may establish in any incorporated city or town.^ The constitution of 1879 made radical changes in the judicial system of the state. Among other things, it abolished the District Courts, County Courts, and Probate Courts, as 'separate tribunals, and vested the jurisdiction formerly BurneU, 25 Barb. (N. Y.) 532; 20 Michigan, People of, v. Phoe- Wagner v. Watts, 2 Cr. C. C. 148, nix Bank, 17 N. Y. Super. (4 Fed Cas. No. 8874; Arglasse v. Bosw.) 363. Muschamp, 1 Vern. 75, 23 Eng. ^'^ Teal v. Felton, 1 N. Y. 5:>,7. Repr. 322; Toller v. Carteret. 2 ^9 Am. Dec. 352; Wilson v. Mac- ,r .«. 00 t:, ID Q1C Kenzie, 7 Hill (xV. Y.) 95. 42 Am. Vern. 494, 23 Eng. Repr. 916. Dec. 51 ; Ripley v. Gelston, 9.Ionns. 17 Watts V.Kinney, 6 HilKN.Y.) ^^^ ^^ ^^^^^ ^ ^^ ^^^ ,-^ . 82; Mott V. Coddington, 1 Abb. Pr. g^^^^^^ ^^ ^.^ ^^ j^,^,^^ ^ ^. ^. , N. S. (N. Y.) 290; Hull v. Vree- .^S; Hovt v. Gelston. i:< .lolnis. land. 18 Abb. Pr. (N. Y.) 182. ^^ ^^ ^^^. ^^^^^^^ ^ ^,.^_^^,,, ... IS Latourette V. Clarke, 45 Barb. App. Div. (N. Y.) 240, 47 .\' Y. (N. Y.)327; reversed, 51 N. Y. 639. g„pp 757. McButt v. Murray, 10 m Mussina v. Belden, 6 Abb. Pr. Abb. Pr. (N. Y.) 196. (N. Y.) 165. 1 Cal. Const. 1849, art. VI, § 1. 89 79 CODE PLEADING AND PRACTICE. [Pt. I, exercised by them in the Superior Courts. The present constitution provides "that the judicial power of the state shall be vested in the Senate sitting as a court of impeachment, in a Supreme Court, District Courts of Appeal, Superior Courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town, township, county, or city and county.^ Under its former judicial system, the California courts established several propositions which are equally applicable to the system now in existence. Among such propositions are that: 1. The legislature can not confer other than judicial functions upon courts or judges;^ and this doctrine has been followed in some of the states having the reformed system of judicature,^ but denied in others.^ 2 Cal. Const. 1879, art. VI, § 1, as amended Oct. 10, 1911, Henning's Gen. Laws, 2d ed., p. 58. 3 Burgoyne v. San Francisco Board of Supervisors, 5 Cal. 9, 21. Followed in Exline v. Smith, 5 Cal. 112, 113; People v. Applegate, 5 Cal. 295; Dickey v. Hurlburt. 5 Cal. 343, 344; Thompson v. Will- iams, 6 Cal. 88, 89; People v. Ne- vada, Town of, 6 Cal. 143, 144; Tuolumne County v. Stanislaus County, 6 Cal. 440, 442; Phelan v. San Francisco County, 6 Cal. 540; Hardenburgh v. Kidd, 10 Cal. 402, 403; Phelan v. San FVancisco County, 20 Cal. 39, 42. Explained as to scope of decision in Hastings v. San Francisco, City and County of, 18 Cal. 49, 59. Overruled in People v. Provines, 34 Cal. 520, 525-548 (obiter). 4 Griffiths, Ex parte, 118 Ind. 83, 84, 10 Am. St. Rep. 107, 108, 3 L. R. A. 398, 20 N. E. 513; and Griffin v. State. 119 Ind. 521, 22 N. E. 7 (act requiring judges to prepare syllabi invalid as requir- ing an act which is not a judicial function) ; State ex rel. White v. Barker, 116 Iowa 99, 110, 99 Am. St. Rep. 222, 57 L. R. A. 244, 252, 89 N. W. 204 (power of choosing manager of municipal water sup- ply system can not be vested by the legislature in a court created by the constitution) ; State ex rel. Young V. Brill, 100 Minn. 499, 518, . Ill N. W. 294, 639 (act requiring judges of district courts to ap- point members of board of control held void as not conferring a ju- dicial function) ; Attorney-General, In re, 21 Misc. (N. Y.) 108, 47 N. Y. Supp. 20 (act imposing non- judicial duties on supreme court invalid) ; Searberg, Town of, v. Woodford, Town of, 76 Vt. 375, 57 Atl. 962 (it is not a judicial fimc- tion to determine boundary be- tween towns by line claimed to have been established by prescrip- tion). 5 Mendenhall v. Burton, 42 Kan. 90 ch. VII.] MUNICIPAL AND ENPERIOR COURTS. §79 2. The municipal and inferior courts can only be of inferior, limited, and special jurisdiction, and can not go beyond the power conferred upon them by statute, nor can they assume power by implication.^ The constitu- tion not ha^^.ng defined the jurisdiction of the municipal courts authorized to be established, it is left to be regu- lated by the legislature under its general powers.''' Where a particular jurisdiction is conferred upon an inferior court or tribunal, its decision, when acting within its jurisdiction, is final, unless provision is made for an ap- peal from such decision.^ 3. Statute creating neiv right and a particular remedy for violation thereof, providing also that the remedy must be pursued in a particular court, no other court has juris- diction.** In such a case the statute must be strictly pursued,^® 570, 574, 22 Pac. 558, maintaining power of probate court, under leg- islative act, to declare town incor- porated as a village. This Is di- rectly the opposite of the holding in People v. Nevada, Town of, 6 Cal. 143j holding act conferring upon court power to incorporate town unconstitutional. c> Mej^er v. Kalkmann, 6 Cal. 582, 590; Kenyon v. Welty, 20 Cal. 637, 640, 81 Am. Dec. 137; Courtwright v. Bear River &. Auburn Water & Min. Co., 30 Cal. 573, 579; Winter v. Fitzpatrick, 35 Cal. 269; Morley V. Elkins, 37 Cal. 454. Process may be sent out of county. — Hickman v. O'Neal, 10 Cal. 292, 294; Chipman v. Bow- man, 14 Cal. 157, 158; Stratman, Ex parte, 39 Cal. 519; McCauley v. Fulton, 44 Cal. 360. "Municipal courts" includes mayor's and recorder's courts. — Uridias v. Morrill, 22 Cal. 473; People v. Provines, 34 Cal. 520. 7 Uridias v. Morrill, 22 Cal. 473. 8 Belser v. Hoffschneider, 104 Cal. 455, 461, 38 Pac. 312; Black Hills Flume & Min. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342; Huron, City of, v. Carter, 5 S. D. 4, 57 N. W. 947. See People Ex rel. Thomson v. Schenectady County, 35 Barb. (N. Y.) 408. 9 Smith V. Omnibus Railroad Co., 36 Cal. 281. In Idaho, a statute imposing a penalty recoverable before a jus- tice of the peace, does not prevent a suit therefor being brought in a district court. — Bisse v. Collins, 12 Idaho 693, 87 Pac. 1007. 10 Cohen v. BaiTett, 5 Cal. 195. 91 § 80 CODE PLEADING AND PRACTICE. [Pt. I, § 80. Supreme Court — Formation of. The Su- preme Court of California as it exists under the present constitution consists of a chief justice and six associate justices.^ The court may sit in department and in bank, and is always open for the transaction of business.- There are two departments, denominated, respectively, depart- ment one and department two. The chief justice is em- powered to assign three of the associate justices to each department. Such assignment may be changed by him from time to time, and the associate justices may inter- change among themselves by agreement. Each depart- ment has power to hear and detennine causes and all questions arising therein, subject to the constitutional provisions in relation to the court in bank.^ The presence of three justices is necessary to transact any business in either of the departments, except such as may be done at chambers, and the concurrence of three justices is neces- sary to pronounce a judgment. The chief justice appor- tions the business to the departments, and may, in his discretion, order any cause pending before the court to be heard^ and decided by the court in bank. The order may be made before or after judgment pronounced by a de- partment; but where a cause has been allotted to one of the departments, and a judgment pronounced thereon, the order must be made within thirty days after such judg- ment,^ and concurred in bj^ two of the justices, and if so 1 Prohibition by im|J!ication on trial, of a cause, and the court has legislature to increase the number control and jurisdiction of a cause of justices. — People v. Wells, 2 for that period. — Niles v. Edwards, Cal. 196, 610. 95 Cal. 41, 30 Pac. 134. :: Sundays and holidays included. o iVIerely a provision for consid- • — Adam v. Dohrmaini, 63 Cal. 417. eration and determination of the :j One supreme court, only, and cause after judgment, and does the jurisdiction which is vested in not imply an additional oral agree- it may be exercised either in bank ment, the court having discretion or in department. — Niles v. Ed- to hear on the record and argu- wards, 95 Cal. 41, 30 Pac. 134. ment, or to direct additional argu- 4 "Heard" signifies the consid- ments. — Niles v. Edwards, 95 Cal. eration, as distinguished from the 41, 30 Pac. 134. 92 eh. VII.] CALIFORXIA SUPREME COURT, §80 made it shall have the effect to vacate and set aside the judgment. Any four justices may, either before or after judgment by a department, order a case to be heard in bank.*^ If the order be not made within the time above limited, the judgment is final. No judgment by a depart- ment becomes final until the expiration of the period of thirty days, unless approved by the chief justice, in writ- ing, with the concurrence of two associated justices.^ The chief justice may convene the court in bank at any time, and is the presiding justice of the court when so convened. The concurrence of four justices^ present at the argu- ment*^ is necessary to pronounce a judgment in bank ; but if four justices, so present, do not concur in a judgment, then all the justices qualified to sit in the cause shall hear the argument ; but to render a judgment a concurrence of four judges is necessary. In the determination of causes 6 "Joint action or concurrence of four justices is the thing re- quired to constitute the action of the court; and, in contemplation of law, this joint action is taken when four justices have, in writ- ing, declared their concurrence in a particular order or judgment, with intent to make it an order or judgment, and it is immaterial whether their respective signa- tures are appended when they are together, or whether they are made separately, at wide intervals of time and place, provided, al- ways, that at the time such order or judgment becomes effective such four justices are qualified to act in the particular matter." — People V. Ruef, 14 Cal. App. 576, 624, 114 Pac. 48, 54, 72. See, also, footnote 8, this sec- tion. By constitutional majority the Supreme Court may act in all cases. — Jessup, In re, 81 Cal. 408, 6 L. Pac. R. A. 742. 594, 21 Pac. 976, 22 7 Department pronouncing judg- ment, the court in bank, or the justices of the court, may proceed to reconsider the cause, and to modify, correct, or vacate the judgment, and do so of their own motion. — Niles v. Edwards, 95 Cal. 41, 30 Pac. 134. 8 Concurrence of four judges requisite to pronounce judgment; but their failure to agree does not. ipso facto, work an affirmance. — Luco v. De Toro, 88 Cal. 2, 6, 11 L, R. A. 543, 25 Pac. 983. See, also, footnote 6, this sec- tion. 9 Oral agreement not heard by one of the judges participating in the judgment, does not render such judgment absolutely void; it is an irregularity that may be waived by the parties. — Blanc v. Bowman, 22 Cal. 23. 93 §§81,82 CODE PLEADING AND PRACTICE. [Pt. I, all decisions of the court in bank or in departments must be given in writing, and the grounds of the decisions sliall be stated.^" The chief justice may sit in either depart- ment, and shall preside when so sitting, but the justices assigned to each department shall select one of their num- ber as presiding justice. In case of the absence of the chief justice from the place at which the court is held, or his inability to act, the associate justices shall select one of their own number to perform the duties and exercise the powers of the chief justice during such absence or inability to act.^^ §81. Election and term of office of jus- tices. The chief justice and the associate justices of the California Supreme Court are elected by the qualified electors of the state at large at the general state elections, at the times and places at which state officers are elected. Their terms of office are twelve years, from and after the first Monday after the first day of January next succeed- ing their election. Of the associate justices two of them go out of office every four years.* <§, 82. Vacancies : disqualification : in- ability TO ACT. In case that a vacancy^ occurs in the office of a justice, the governor shall appoint a person to bold the office until the election and qualification of a justice to fill the vacqjicy, which election shall take place at the 10 Reason for decision can not ing of the constitution. — People v. be required by legislature of Su- Wells, 2 Cal. 198, 610. preme Court justices. — Houston v. Functions of justice cease when Williams, 13 Cal. 24, 73 Am. Dec. he passes beyond the boundary- 565. line of the state, and do not revive 11 Cal. Const. 1879, art. VI, § 2, until he re-crosses the boundary- Henning's Gen. Laws, 2d ed., p. 58. line of the state. — People v. Reuf, 1 Cal. Const. 1879, art IV, § 4, 14 Cal. App. 626, 114 Pac. 51. as amended November 8, 1904, Sickness as "vacancy" in office Henning's Gen. Laws, 2d ed"., p. 59. authorizes performance of duties 1 Absence from state of a justice by another. — See note 25 L. R. A. of the Supreme Court does not 613. create a vacancy within the mean- 9-1 Ch. VII.] JURISDICTION OF SUPREME COURT. § 83 next succeeding general election ; and the justice so elected shall hold the office for the remainder of the unexpired term.2 "\\rhere any justice of the Supreme Court is for any reason disqualified or unable to act in a cause or causes pending before that court, the remaining justices may select one of the justices of a District Courts of Appeal to act pro tem in the place of the justice so dis- qualified or unable to act.^ § 83. Jurisdiction of — Nature and extent. The Supreme Court of California, being created by the state constitution, and its power being therein defined and set forth, has such powers and jurisdiction, only, as are designated by the constitution;^ it can not exercise any functions not therein delegated;- and its jurisdiction and powers can neither be enlarged nor abridged by the legislature.^ An affirmative enumeration and grant of power and jurisdiction to the Supreme Court by the con- stitution, impliedly negatives all others.* The state con- stitution has not clothed the Supreme Court with the same powers and jurisdiction possessed by Courts of Chancery and the Court of Kings' Bench in England.^ Under the constitution of 1849, as originally enacted, the Supreme Court was a court of appellate jurisdiction, only;^ but 2Cal. Const. 1879, art. VI, § 3, gerald v. Urton, 4 Cal. 235; Wilson Henning's Gen. Laws, 2d ed., p. 59. v. Roach, 4 Cal. 362; Burgoyne v. 3 Id., p. 61. San Francisco Supervisors, 5 Cal. 1 People ex rel. Attorney-Gen- 9; Zander v. Coe, 5 Cal. 230; eral, 1 Cal. 85; Jessup, In re, 81 People v. Applegate, 5 Cal. 295; Cal. 408, 6 L. R. A. 594, 21 Pac. Thompson v. Williams, 6 Cal. 88; 796, 22 Pac. 742. Haight v. Gay, 8 Cal. 297, 68 Am. 2 Luther v. Master Ship Apollo, Dec. 323. 1 Cal. 15; Von Schmidt v. Hunting- As to power of legislature to im- ton, 1 Cal. 66; Warner v. Hall, 1 pose non-judicial functions, see 7 Cal. 90; Warner v. Kellt, 1 Cal. 92; R. C. L., p. 982, § 10. White V. Lihjthall, 1 Cal. 348. 4 Burgoyne v. San FVancisco Su- 3 Jessup, In re, 81 Cal. 408, 6 pervisors, 5 Cal. 9. L. R. A. 594, 21 Pac. 976, 22 Pac. 5 People ex rel. Attorney-Gen- 742. See Hicks V. Bell, 3 Cal. 219; eral, 1 Cal. 85. People V. Peralta, 3 Cal. 379; Caul- 6 People ex rel. Attorney-Gen- field V. Hudson, 3 Cal, 389; Fitz- eral, 1 Cal. 85; People v. Gillespie, 95 §84 CODE PLEADING AND PRACTICE. [Pt. I, that limitation was changed by the amendment of 1862 to article VI, § 4 of the constitution.'^ Under the constitu- tion of 1879, the court still has the enlarged powers and jurisdiction. §84. Appellate and okiginal jurisdic- tion. The jurisdiction of the Supreme Court of California is original^ to some extent, but is mainly appellate.- The present constitution of California^ gives to the Supreme 1 Cal. 343; Caulfield v. Hudson, 3 Cal. 390; Milliken v. Huber, 21 Cal. 169. 7 See Desty's California Consti- tutions (parallel), pp. 98, 100. 1 As to original jurisdiction of the Supreme Court, see footnotes 14 et seq., this section. "Original jurisdiction" is a gen- eral term of limitation, contradis- tinguished from the term "appel- late jurisdiction," which latter de- fines the jurisdiction of the su- preme court. — Reed v. McCormick, 4 Cal. 342, 343 (discussing Const., art. VI, § 6, in connection with jur- isdiction of district courts) ; Peo- ple ex rel. Dickinson v. Board of Trade of Chicago, 193 111. 577, 62 N. B. 196. "Original jurisdiction" means jurisdiction in the fir»t instance. — Castner v. Chandler, 2 Minn. 86, 88. 2 "Appellate jurisdiction" means the power vested in a superior court to review and revise the final judgments and decrees of an inferior court. — Jessup, In re, 81 Cal. 408, 6 L. R. A. 594, 21 Pac. 976, 22 Pac. 742; State v. Baker, 19 Fla. 19, 26; McVay, Estate of, 14 Idaho 68, 93 Pac. 32; State ex rel. Williams v. Anthony, 65 Mo. App. 543, 552; Dodds v. Duncan, 80 Tenn. (12 Lea) 731, 734; Browns- ville, City of, V. Basse, 43 Tex. 440, 449; Hubbell v. McCourt, 44 Wis. 584, 587. Legislature can not impair or take away the appellate jurisdic- tion of the Supreme Court.— Haight V. Gay, 8 Cal. 297, 68 Am. Dec. 323; Jessup, In re, 81 Cal. 408, 6 L. R. A. 594, 21 Pac. 976, 22 Pac. 742. See, also, authorities cited, ante, § 83, footnote 3. Procedure on exercise of appel- late jurisdiction by the Supreme Court, and the mode in which ap- peals may be taken can be pre- scribed by the legislature. — Haight V. Gay, 8 Cal. 297, 68 An-.. Dec. 323; Harker, Ex parte, 49 Cal. 465. On failure of legislature to pre- scribe method of taking appeal, Supreme Court has inherent power to establish any appropriate sys- tem of procedure. — People v. Jor- dan, 65 Cal. 644, 4 Pac. 683. Writ of error may be used to bring up a case and secure a re- view of the same by the Supreme Court where the legislature has failed to provide a method for tak- ing an appeal. — Adams v. Town, 3 Cal. 247; Thistleton, Ex parte, 52 Cal. 220, 224. 3 Cal. Const. 1879, art. VI, § 4, as amended November 8, 1904, Hen- ning's Gen. Laws, 2d ed., p. 59. 96 ch. VIL] APPELLATE JURISDICTION. §84 Court appellate jurisdiction, on appeal from the Superior Courts, in the following instances: (1) In all cases in equity,'' except such as arise in Justices' Courts; (2) in all cases in law which involve the title to, or the possession of, real estate;"^ (3) in all cases involving the legality of any tax,<^ impost, assessment, toll, or municipal fine;^ (4) 4 Mortgage foreclosures appeals in exclusively within jurisdiction of Supreme Court (Aetna Indem- nity Co. V. Altadena Min. & Invest. Co., 11 Cal. App. 2G, 104 Pac. 470) and where transcript and briefs on appeal are filed in a District Court of Appeal, that court must transfer the cause to the Supreme Court. — Id. Injunction against a mining com- pany to prevent depositing of tail- ings in a stream to the special injury of the county, is an equi- table action over which the Su- l)reme Court has exclusive juris- diction. — Yuba County v. North American Consol. Gold Min. Co., 12 Cal. App. 121, 107 Pac. 139. Injunction restraining board of supervisors from calling a special election for the recall of one of their members and the election of his successor, jurisdiction of an appeal is in the Supreme Court, and a District Court of Appeal is without power to hear a motion to dismiss the injunction. — Laam v. McLaren, 28 Cal. App. 68, 632, 151 Pac. 290, 153 Pac. 985. 5 Question of title being in- volved, damages to real property claimed in a sum less than two thousand dollars. Supreme Court has jurisdiction of an appeal. — See Doherty v. Thayer, 31 Cal. 140 (de- cided under the three hundred dol- lar limitation). I Code PI. and Pr.— 7 Damage for killing stock by rail- road, under § 485 Cal. Civ. Code, imposing liability to adjoining land owners for killing stock, where the complaint avers ownership of ad- joining land, title to land is in- volved in the action so as to give the Supreme Court jurisdiction on appeal.— Boyd v. Southern Cal. R. Co., 126 Cal. 571, 58 Pac. 104G. Statement of counsel that cause Involved title to real estate, made for the purpose of having the evi- dence taken in writing, can not be accepted as a substitute for mat- ter of record to show that title was involved. — Raisch v. Sausalito Land & Ferry Co., 131 Cal. 215, 63 Pac. 346. 6 Validity of tax called in ques- tion, appellate jurisdiction of Su- preme Court does not include the reviewing of a case where the question is, not the validity of the tax, but whether the court ap- pealed from had the power to im- pose a penalty for not paying the tax. — De Long v. Haines, 1 Cal. Unrep. 120. 7 "Municipal fine" does not in- clude a fine imposed for the viola- tion of a municipal ordinance, and on affirmance of the police court by the superior court, the Supreme Court has no jurisdiction on ap- peal under this provision.— See People V. Pacific Gas & Elec. Co., 168 Cal. 496, Ann. Cas. 1917A, 328, 143 Pac. 727. 97 §84 CODE PLEADING AND PRACTICE. [Pt.I, in all cases in which the demand, exclusive of interest, amounts to two thousand dollars ; (5) in all cases in which the value of the property in controversy amounts to two thousand dollars;^ (6) in all such probate matters as is provided by law;^ (7) on all questions of law only,^*' in all criminal cases in which a judgment of death has been rendered; (8) in all matters and proceedings pending in a District Court of Appeal, which shall be ordered by the Supreme Court to be transferred to itself for hearing and decision, as in the constitution provided. ^^ Before the amendment of November 8, 1904, to the constitution, the amount involved in the controversy, or the value of the property in dispute, which gave the Supreme Court jurisdiction of an appeal was three hun- dred dollars. By that amendment all appeals in cases in which the demand, or the value of the property, is three hundred dollars and imder two thousand dollars, is given to the District Courts of xlppeal.^^ The Supreme Court, s Damages in sum of three thou- sand dollars for alleged conversion of personal property claimed, trial court finding that the property in- volved was worth seven hundred dollars, only, the Supreme Court, and not a District Court of Appeal, has jurisdiction on appeal. — Will- iamson V. Monr%e, 28 Cal. App. 367, 152 Pac. 567. 9 Probate appeal is regulated by the Code of Civil Procedure. — See Kerr's Cyc. Cal. Code of Civ. Proc, §963, par. 3; 2 Church's Probate Law and Practice, p. 1774. Non-appealable orders in pro- bate, as to what are, see Hath- away, Estate of. 111 Cal. 270, 43 Pac. 754. 10 Can not set aside verdict where evidence conflicting. — Peo- ple v. Bowers, 2 Cal. Unrep. 878, 18 Pac. 660. Accusation against district attor- ney, under § 772 California Penal Code, is not within the appellate jurisdiction of the Supreme Court. —Wheeler v. Donnell, 110 Cal. 155, 657, 43 Pac. 1; Guttery v. Wishon (Cal.), 43 Pac. 2; Coffey v. Super- ior Court, 2 Cal. App. 456, 83 Pac. 581. Removal for malfeasance in of- fice, proceedings for are civil in nature. — Skeen v. Craig, 31 Utah 28, 86 Pac. 489. iiAppellate jurisdiction not given to the Supreme Court by this provision in those matters in which appellate jurisdiction is not given to that court in some other provision of the constitution. — Zany, Ex parte, 164 Cal. 724, 130 Pac. 710. 12 Cal. Const. 1879, art. VI, § 4, as amended November 8, 1904, Henning's Gen. Laws. 2d ed., p. 60. 98 ch. VII.] ORIGINAL. JURISDICTION. §84 before that amendment, had appellate jurisdiction in cases of forcible entry and detainer, and in insolvency proceedings.^^ In criminal cases the Supreme Court never seems to have had jurisdiction on appeal except on matters of law, and in felony cases only.^^ Jurisdiction for purposes of particular appeal, on the part of the Supreme Court, or of the District Courts of Appeal, for that matter, is not retroactive, but remains as it was at the time that the appeal was taken. ^^ Original jurisdiction of the Supreme Court includes the power to issue writs of mandamus,^*^ certiorari, pro- 13 F^sk V. His Creditors, 12 Cal. 281; People ex rel. Sturgis v. Shep- ard, 28 Cal. 115, 117; Ramazzina, Matter of, 110 Cal. 488, 42 Pac. 970. Motion to set aside decree of final discharge in insolvency, dis- position of rests largely in discre- tion of trial judge, and appeal will not lie except for an abuse of dis- cretion. — Longnecker v. His Cred- itors, 2 Cal. Unrep. 852, 17 Pac. 220. 14 Felony cases only, prosecuted by indictment or information in a court of record. — People v. Apple- gate, 5 Cal. 295; People v. Shear, 7 Cal. 140; People v, Vick, 7 Cal. 166; People v. Fowler, 9 Cal. 86; People V. Cornell, 16 Cal. 187; Peo pie V. Ware, 20 Cal. 117; People v. Burney, 29 Cal. 459; People v. Johnson, 30 Cal. 101; People v. Jones, 31 Cal. 576; People v. Ap- gar, 35 Cal. 390; Wheeler v. Don- nell, 110 Cal. 655, 43 Pac. 1. Appeals In criminal cases are regulated by Kerr's Cyc. Cal. Pen. Code, §§ 1235 et seq. Contempt proceedings, though criminal in their nature, are not prosecuted by indictment or infor- mation, and a conviction of con- tempt and the imposition of a fine in excess of three hundred dollars, does not confer on the Supreme Court appellate jurisdiction over the case. — Tyler v. Connelly, 65 Cal. 28, 2 Pac. 214; People v. Kuhl- man, 118 Cal. 141, 50 Pac. 382; Gale V. Tuolumne County Water Co., 169 Cal. 46, 145 Pac. 532. Superior court without jurisdic- tion to render the judgment. Su- preme Court has jurisdiction on appeal to revise, modify, etc. — Smith V. Westfield, 88 Cal. 374, 26 Pac. 211. 15 De Long v. Haines, 1 Cal. Unrep. 120. le In mandamus Supreme Court has original jurisdiction; and the fact that the same question is raised in an appeal then pending in another case in that court has no effect upon that jurisdiction. — Scott V. Boyle, 164 Cal. 321, 128 Pac. 941. Mandamus of clerk to enter de- fault judgment, jurisdiction re- sides in District Courts of Appeal, not in the Supreme Court.— David- son, Matter of, 167 Cal. 727, 141 Pac. 216. 99 §84 CODE PLEADING AND PRACTICE. [Pt. I. hibi tion/'^ habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdic- tion.^^ Each of the justices of the Supreme Court has power to issue writs of habeas corpus, on petition of or on behalf of any person held in actual custody, and may make such writ returnable before himself, or the Supreme Court, or before any Superior Court in the state or before any judge thereof.^^ Salary of justices of the District Courts of Appeal being the question involved, the Supreme Court is the IT Writ of prohibition can not be used to exercise appellate power of Supreme Court, without an ap- peal, and in a case to which its appellate jurisdiction does not ex- tend. — Powelson v. Lockwood, 82 Cal. 613, 28 Pac. 143; Havermeyer V. Superior Court, 84 Cal. 327, 398, 18 Am. St. Rep. 192, 10 L. R. A. 627, 24 Pac. 121. See Wolcott v. Wells, 21 Nev. 47, 52, 37 Am. St. Rep. 481, 9 L. R. A. 59, 24 Pac. 367; State ex rel. Reed v. Jones, 2 Wash. 662, 666, 26 Am. St. Rep. 900, 27 Pac. 452. 18 Writs in aid of appellate jur- isdiction may be issued by the Su- preme Court under its original jurisdiction, — such as certiorari, habeas corpus,- mandamus, and prohibition. — People ex rel. Attor- ney-General, 1 Cal. 85, 87; Warner V. Hall, 1 Cal. 90; Warner v. Kelly, 1 Cal. 91; People v. Turner, 1 Cal. 143, 52 Am. Dec. 295; White v. Lighthall, 1 Cal. 347; Adams v. Toen, 3 Cal. 247; Caulfield v. Hud- son, 3 Cal. 389; Reed v. McCor- mick, 4 Cal. 342; Parsons v. Tuolumne County Water Co., 5 Cal. 43, 63 Am. Dec. 76; Townsend V. Brooks, 5 Cal. 52; Zander v. Coe, 5 Cal. 230; People v. Apple- gate, 5 Cal. 295; People v. Fowler. 9 Cal. 86; Purcell v. McKune, 14 Cal. 230; Cowell v. Buckelew, 14 Cal. 640, 642; Miliken v. Huber, 21 Cal. 169; People ex rel. Flagley v. Hubbard, 22 Cal. 34, 38; Tyler v. Houghton, 25 Cal. 26, 28; Miller v. Sacramento County, 25 Cal. 93, 95; Perry v. Ames, 26 Cal. 373, 383; People ex rel. Carpentier v. Loucks, 28 Cal. 68, 71; People v. Weston, 28 Cal. 639; Courtwright V. Bear River & Auburn Water & Min. Co., 30 Cal. 573, 585; Lewis V. Barclay, 32 Cal. 213; Hyatt v. Allen, 54 Cal. 353, 355; People ex rel. Kocourek v. Chicago, City of, 193 111. 507, 58 L. R. A. 833, 62 N. E. 179; Chumasere v. Potts, 2 Mont. 242, 292; State ex rel. Curtis V. McCullough, 3 Nev. 202, 216. Original jurisdiction in manda- mus, as to, see note 58 L. R. A. 833-869. District court can not, by maij- damus, compel superior judge to sign bill of exceptions; it can be issued in aid of appeal only.^ — Stewart v. Torrance, 9 Cal. App. 211, 98 Pac. 397. 19 Cal. Const. 1879, art. VI, §,4, as amended November 8, 1904, Hennings Gen. Laws, 2d ed., p. 59. 100 ch. VII.] JURISDICnONAL AMOUNT. §85 only tribunal empowered to entertain the cause and deter- mine the amount of salary.-*^ Disbarment proceediugs were within tlie orili the corafjlaint prays judgment for a less amount,^^ in case possession can not be had ;^"' because tlie jurisdiction of the Justices' Court depends upon the amount sued for.^° § 116. Title or possession of real prop- erty INVOLVED — Certification to Superior Court. In all those cases in which the title to, or the possession of, real property is involved and a material issue,^ a Justices' Court is without jurisdiction to try the cause,- but must 1-i As to amount of demand con- trolling jurisdiction, see, ante, § 100. 15 Shealor v. Superior Court, 70 Cal. 564, 11 Pac. 653. 16 Id.; Hoban v. Ryan, 130 Cal. 96, 98, 62 Pac. 296. As to ad damnum clause, or de- mand, see, ante, § 100. 1 Title or possession incidentally involved in such a manner that it must be decided in order to deter- mine the cause, the action must be tried in the superior court. — Hart V. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196. See, also, ante, § 108, footnote 1. 2 See, ante, § 114. CAL.— King V. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10; Dungan v. Clark, 159 Cal. 30, 112 Pac. 718. IDAHO— Haiiimer v. GaiTett, 15 Idaho 657, 99 Pac. 124. MINN.— Tordsen v. Gummer, 37 Minn. 211, 34 N. W. 20. MONT. — Driscoll v. Dunwoody, 7 Mont. 394, 16 Pac. 726. ORE.— Sweek v. Galbreath, 11 Ore. 516, 6 Pac. 220; Aiken v. Aiken, 12 Ore. 203, 6 Pac. 682; German Evangeli- cal Reformed Bethany Church v. Schindler, 56 Ore. 247, 108 Pac. 178. UTAH — Dercheneau v. House, 4 Utah 383, 369, 10 Pac. 427. Denial on information and belief of plaintiff's title does not oust court of jurisdiction. — Malarkey v. O'Leary, 34 Ore. 493, 56 Pac. 521. Ejectment by purchaser at fore- closure, plea plaintiff, who was mortgagee under whom mortgage sale was made, agreed to extend date of payment beyond day on which sale was made, does not raise question of title and oust justices' court of jurisdiction. — Hamill v. Clear Creek County Bank, 22 Colo. 384, 45 Pac. 411. As to forcible entry and de- tainer, see next footnote. Improper plea setting up till not permitted by courts, to oust of jurisdiction. — McQuiston v. Wal- ton, 12 Okla. 130, 69 Pac. 1048. Injuries to growing crops by trespassing animals being alleged and prayer for damages in a sum less than three hundred dollars, a justices' court has jurisdiction, be- cause possession of this land is required to be shown simply as an incident. — Fisch v. Nice, 12 Cal. App. 60. 106 Pac. 598; Wilkins V. Lee, 73 Kan. 321, 85 Pac. 140. 133 §116 CODE PLEADING AND PRACTICE. [Pt. I. certify it to the Superior Court.'* And where, in an action in Justices' Court, the defendant interposed an answer raising an issue of title and offered proof under it, it was held that, upon the offer of proof, the jurisdiction of the justice ceased and the judgment afterwards rendered was Cal. App. Killing cattle by railroad "pas- sing through lands owned and im- proved by private owners" being charged, a denial of such allega- tion does not put the question of title in issue. — Oregon Short Line R. Co. V. District Court, 30 Utah 371, 85 Pac. 360. Removal of windmill under chat- tel mortgage and suit by benefic- iary of trust deed covering the land, claiming windmill attached and a part of the realty, does not involve title to the land.— Vaughn V. Grisby, 8 Colo. App. 373, 46 Pac. 624. Trespass on land alleged, title not necessarily involved. — State ex rel. Launiza v. Justices' Court, 29 Nev. 191, 87 Pac. 1. Unnecessary allegation of owner- ship not denied in the answer, does not oust court of jurisdiction. — Heiney v. Heiney, 43 Ore. 577, 73 Pac. 1038. Verification of answer not requi- site to oust justices' court of juris- diction. — King v. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10. 3 See Kerr's Cyc. Cal. Code of Civ. Proc, § 838; Dungan v. Clark, 159 Cal. 30, 112 Pac. 718; Bonncll v. Gill, 41 Colo. 59, 92 Pac. 13. Allegation of conclusion of affi- ant that title to real property was involved, without setting out any of the facts upon which that con- clusion is founded, does not war- rant a removal to superior court under Cal. Code Civ. Proc, § 838.— McAllister v. Tindal, 1 236, 81 Pac. 1117. Complaint stating no cause of action, justices' court acquires no jurisdiction, and can not convey any by certifying the cause. — State ex rel. Lott v. District Court, 33 Mont. 356, 83 Pac. 597. Thus, complaint failing to allege that the property in controversy is within the county in which the justices' court is sitting, the court acquires no jurisdiction. — Wood- bury V. Henningsen, 11 Wash. 12, 39 Pac. 243. Forcible entry and unlawful detainer is within jurisdiction of justices' court on the question whether the relation of landlord and tenant existed. — Richmond v. Superior Court, 9 Cal. App. 62, 98 Pac. 57; Hamill v. Bank of Clear Creek County, 22 Colo. 384, 45 Pac. 411. — Being a possessory action, title is not involved and justice can not certify. — Armour Packing Co. v. Howe, 62 Kan. 587, 64 Pac. 42; Wideman v. Taylor; 63 Kan. 884, 65 Pac. 664; Sheeby v. Flaherty, 8 Mont. 365, 20 Pac. 687; Patton v. Balch, 15 N. M. 276, 106 Pac. 3S8; :McDonald v. Stiles, 7 Okla. 327, 54 Pac. 487; Duffey v. Mix, 24 Ore. 265, 33 Pac. 807; Jenkins v. Jeff- rey, 3 Wyo. 669, 27 Pac. 186. But where the action is by ven- dor against vendee who made de- fault, justices' court has no juris- diction in Oklahoma. — Smith v. Kirchner, 7 Okla. 166, 54 Pac. 439. 131 t'h. VII.] TITLE, ETC., TO REAL PROPERTY. § 116 void."* But a Justices ' Court has jurisdiction of an ordi- nary trespass to real property, when the plaintiff can establish his right without being obliged to establish his title to the property.^ And where the pleadings do not show upon their face that the title or possession of prop- erty is necessarily involved, but only that it may contin- gently become involved, the justice of the peace has juris- diction to try the cause and to render a final judgment. If, however, it appears that the predicted contingent events actually occur on the trial, it is then the duty of the justice to decline to hear e^ddence touching the ques-'. tion of possession, and to certify the case to the Superior Court.'' When a Justices' Court once obtains jurisdic- tion over the subject-matter of an action, its jurisdic- tion continues until the action is legally disposed of by such court.' And a Justices' Court has no power, in the absence of a statute expressly conferring it, to set aside its OMTi judgment duly rendered, either upon issue joined, or for want of an answer, or to grant a new trial, or leave to answer. ■" Under the Constitution of the state of Wash- ington, justices of the peace have no jurisdiction in causes in which the demand or value of the property in contro- versy is one hundred dollars or more.'' And a justice of the peace has no jurisdiction of an action for the recovery of a sum due, and interest thereon, arising out of a con- tract for the pajnnent of money, when the total amount of the claim is brought in excess of the sum of one hundred dollars, by the addition of the interest thereon. ^*^ When- 4 Murray v. Burris, 6 Dak. 170, s See Heinlen v. Phillips, 88 Cal. 42 N. W. 25. 557, 26 Pac. 3G6; Weeks v. Etter, 5 State ex rel. Launiz v. Jus- ^1 Mo. 375; State v. Boettger, 39 tices- Court. 29 Nev. 191, 87 Pac. 1; ^^«- ^^^P" ^^4; American Building Sweek v. Galbreath, 11 Ore. 516, 6 Pac. 220. & L. Assoc. V. Fulton, 21 Ore. 492, 28 Pac. 636. 9 Moore v. Perrott, 2 Wash. 1, <; Hart v. Carnall-Hopkins Co., 25 Pac. 906. 103 Cal. 132, 37 Pac. 19G. lo State ex rel. Egbert v. Su- T Southern Pac. R. Co. v. Rus- perior Court, 9 Wash. 369, 37 Pac. sell, 20 Ore. 459, 26 Pac. 304. 489. 135 § 117 CODE PLEADING AND PRACTICE. [Pt. I, ever the act reflating the jurisdiction of justices of the peace provides the remedies when a litigant's rights are not respected by the magistrate, these remedies must be taken to be exclusive. ^^ § 117. Priokity of jURiSDicTioisr — State and federaIj COURTS. We have already discussed exclusive/ concur- rent,^ and conflicting^ jurisdiction ; and have seen that, as between courts of concurrent original jurisdiction, the court which first takes cognizance of a controversy is entitled to retain jurisdiction to the end of the litigation, and incidentally to take possession and control of the subject-matter of the suit to the exclusion of all interfer- ence from other courts of concurrent jurisdiction, whether state or federal.^ Thus, when a Circuit Court of the United States has first acquired jurisdiction of the per- sons and subject-matter of an action before the com- mencement of a subsequent action in a state court between the same persons, essentially involving or depending upon the same subject-matter, the judgment of the Circuit Court, no matter when rendered, whether before or after the date of judgment in the state court, becomes binding and conclusive as to that subject-matter, upon all parties and upon all other courts and tribunals whatsoever.^ 11 Wood V. Lake, 3 Colo. App. 366, 21 L. Ed. 287; Pacific Live 284, 33 Pac. 80. Stock Co. v. Lewis, 241 U. S. 446, 1 See ante, § 61. ^0 L. Ed. 1096; Young, Ex parte, „ „ ' , g CO 209 U. S. 162, 52 L. Ed. 730, 14 2 See, ante, § 62. . ^ „' Ann. Cas. 764, 13 L. R. A. (N. S.) 3 See, ante, § 63. 932^ 28 Sup. Ct. Rep. 441; Sharon 4 See, ante, § 62, footnotes 8 and y Terry, 36 Fed. 337; Hatch v. 9. See, also, Sharon v. Sharon, 84 Bancroft-Thompson Co., 67 Fed. Cal. 424, 430, 23 Pac. 1100; Bate- 802; Foley v. Hartley, 72 Fed. 570, man v. Grand Rapids & I. R. Co., 573; Hughes v. Green, 75 Fed. 691; 96 Mich. 441, 444, 56 N. W. 28; Gamble v. San Diego, City of, 79 State ex rel. Spalding v. Benton, Fed. 487, 500. 12 Mont. 66, 76, 78, 29 Pac. 425; See further cases cited, 7 Rose's Thompson v. HoUaday, 15 Ore. 34, Notes to U. S. Reps., 2d ed., pp. 14 Pac. 725; Oh Chow v. Brock- 1107-1110. way, 21 Ore. 440, 28 Pac. 384 ; Tay- 5 Sharon v. Sharon, 84 Cal. 424, lor V. Taintor, 83 U. S. (16 Wall.) 430, 23 Pac. 1100. 13G / CHAPTER VIII. PROCEEDINGS TO OBTAIN JUKISDICTION. § 118. In general. § 119, Definition of "process." § 120. Notice requisite to "due process of law" — ^In general. § 121. Citation — Definition and nature. § 122. Service and return. f <§ 118. In general,. In all judicial proceedings it is necessary, in order to confer upon a court having juris- diction over the subject-matter statutory jurisdiction over the person or the res, that there shall be served upon the party or parties to be affected some kind of sufficient notice of the proceeding as required by law,^ or the par- ties must voluntarily appear.- Even the inherent juris- diction of a court to set aside a void judgment or decree, does not authorize such court, in a direct action or pro- ceeding for that purpose, to do so until after the statutory notice has been given to the party in whose favor the judgment was rendered or decree entered, and he given an opportunity to be heard.^ This is unquestionably the 1 Litchfield's Appeal, 22 Conn. v. Gates, 41 Ky. (2 B. Mon.) 453, 127, 73 Am. Dec. 662. See Lamar 38 Am. Dec. 164; Jones v. Com- V. Gunter, 39 Ala. 324; Hatchett v. mercial Bank, 6 Miss. (5 How.) Billingslea, 65 Ala. 16; Flint River 43, 35 Am. Dec. 419; Hauswirtli v. Steamboat Co. v. Roberts, 2 Fla. Sullivan, 6 Mont. 203, 9 Pac. 798. 102, 48 Am. Dec. 178; Dorden v. See note 51 Am. Dec. 395, 54 Lines, 2 Fla. 569; Purviance v. Ed- Am. St. Rep. 246. wards, 17 Fla. 140; State ex rel. Want of service of process, held Andreu v. Canfield (dis. op.), 40 not to be ground for enjoining Fla. 36, 42 L. R. A. 72, 23 So. 591; judgment in Colson v. Leitch, 110 Flint River Steamboat Co. v. Fos- 111. 504. ter, 5 Ga. 194, 48 Am. Dec. 248; 2 As to appearance, see, post. Weaver v. Webb, 3 Ga. App. 726, §§ 255 et seq. 60 S. E. 367: Kenney v. Greer, 13 :! Dwyer v. Nolan, 40 Wash. 459, 111. 432, 54 Am. Dec. 439; Shaefer Ul Am. St. Rep. 919, 5 Ann. Cas. 137 § 118 CODE PLEADING AND PRACTICE. fPt. I, sound doctrine regarding notice; but in those cases in which a relation, — e. g., the marriage relation, — and prop- erty interests are affected, a distinction is sometimes made, into the details of which we can not enter in this place. Thus, according to the overwhelming weight of authority,^ in the case of a fraudulent decree of divorce procured without jurisdiction over the person of the de- fendant by reason of the want of the service of, or a defective service of summons, the decree may be set aside in a direct proceeding for that purpose after the death of the plaintiff and when, in the nature of the case, it is impossible to serve the judgment-plaintiff with notice of the proceeding,^ for the reason, seemingly, that other in- terests — property interests — are affected, and the rights and interests of parties living, and possibly not parties to the action, are affected by such decree of divorce.*^ This is on the well-established principle that equity will re- strain the enforcement of a judgment or decree procured by fraud,'^ or where any fact exists clearly showing that 890, 1 L. R. A. (N. S.) 551, 82 Pac. 5 Authorities numerous, and it is 746 not necessary to cite them here as Inherent jurisdiction is not a they are fully collected in 5 Ann. loose, arbitrary and unlicensed Cas. 892, 1 L. R, A. (N. S.) 551. jurisdiction that the court can ex- 57 L. R. A. 583. ercise without restraint, untram- 6 See, among other cases, Isreal meled by the observance of the v. Arthur, 6 Colo. 85. methods prescribed by law; it is t Hempstead v. Watkins, 6 Ark. simply jurisdiction, and no more. — 317, 42 Am. Dec, 714; Litchfield's Dwyer v. Nolan, ante. Appeal, 22 Conn. 127, 73 Am. Dec. Review after death of party 662; Pearce v. Chastain, 3 Ga. 226, stands on another ground, it 46 Am. Dec. 423; State ex rel. Gar- seems. See Isreal v. Arthur, 6 ber v. Matley, 17 Neb. 564, 24 Colo. 85; later appeals of same N. W. 200; Lockwood v. Mitchell, case in 7 Colo. 5, 1 Pac. 438, 15 19 Ohio 448, 53 Am. Dec. 438; Con- Colo. 147, 22 Am. St. Rep. 381, 10 way v. Duncan, 28 Ohio St. 102; L. R. A. 693, 25 Pac. 81, 18 Colo. Dowdell v. Goodwin, 22 R. I. 287, 158, 22 Pac. 68; writ of error dis- 84 Am. St. Rep. 842, 51 L. R. A. missed, 152 U. S. 355, 38 L. Ed. 873, 4 Atl. 693; Bank of Tennessee" 474, 14 Sup. Ct. Rep. 585. v. Patterson, 27 Tenn. (8 Heniph.) 4 All of the authority, so far as 363, 47 Am. Dec. 618; Williams v. the author is aware, except Dwyer Pile, 104 Tenn. 273, 56 S. W. 833; V. Nolan, already cited. Emerson v. Udall, 13 Vt. 477, 37 138 ch. VIII.] PROCESS DEFINED. §119 it would be against conscience to execute such judgment or decree f as where, by mistake or fraud, one has gained an unfair advantage whicli would operate to make a court of law an instrument of injustice." § 119. Definition of "process." In its broadest sense, the word ** process" comprehends all proceedings to the accomplishment of an end, including judicial proceed- ings.^ In a narrower sense, in law, it means a *Svrit"- issued by some court or officer exercising judicial powers,^^ and embraces all the steps in the progress of a cause,^ the words "process" and "writ" being synonymous and used interchangeably.^ But as used herein the word process is synonymous with the word "summons," and signifies the Am. Dec. 604; Bancroft v. Grover, 22 Wis. 463, 99 Am. Dec. 195. Fraud being mere falsity of claim or proof, equity will not re- lieve. — Furbush v. Collingwood, 13 R. I. 720. Perjured testimony admitted, not ground for setting aside judg- ment on ground of fraud. — Camp V. Ward, 69 Vt. 286, 60 Am. St. Rep. 929, 37 Atl. 747. s Crofts V. Dexter, 8 Ala. 767, 42 Am. Dec. 666; Brooks v. Twitchell, 182 Mass. 443, 94 Am. St. Rep. 662, 65 N. E. 843; Hibbard v. Eastman, 47 N. H. 507, 93 Am. Dec. 467; Adams v. Adams, 51 N. H. 388, 12 Am. Rep. 134. False return of sheriff and con- sequent want of the statutoiy no- tice to give the court jurisdiction. —Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639. Haste and inadvertence by Su- l)reme Court leading to wrong decision, execution of judgment can not be enjoined. — Pettes v. Bank of Whitehall, 17 Vt. 435. Void judgment may be enjoined, though appearing regular on its 1 face. — Chambers v. King Wrought Iron Bridge Mfrg., 16 Kan. 270. 9 Delany v. Brown, 72 Vt. 344, 47 Atl. 1067. 1 McKenna v. Cooper, 79 Kan. 847, 101 Pac. 662. 2 Carey v. German American Ins. Co., 84 Wis. 80, 36 Am. St. Rep. 907, 20 L. R. A. 267, 54 N. W. 18. See Savage v. Oliver, 100 Ga. 636, 36 S. E. 54; Hinkley v. St. Anthony Falls Water Power Co., 9 Minn. 55, 60; People ex rel. John- son v. Nevins, 1 Hill (N. Y.) 154, 169-70; State v. Shaw, 73 Vt. 149, 50 Atl. 863. 3 Tweed v. Metcalf, 4 Mich. 578, 579, 588. 4 Hanna v. Russell, 12 Minn. 80, 86; Wolf V. McKinley, 65 Minn. 156, 68 N. W. 2; Tipton v. Cordo- van, 1 N. M. 383, 385; Perry v. Lorillard Fire Ins. Co., 6 Lans. (N. Y.) 201, 204; affirmed, 61 N. Y. 214, 19 Am. Rep. 272; United States v. Murphy, 82 Fed. 893, 899. ^> Carey v. German American Ins. Co., 84 Wis. 80, 36 Am. St. Rep. 907, 20 L. R. A. 267, 54 N. W. 18. See Original Writs, In re, 37 Pa. 39 §120 CODE PLEADING AND PRACTICE. [Pt.I, writ by means of which the defendant is brought into court to answer.^ <§. 120. Notice requisite to ' ' due process of law ' ' — Ix GENERAL. It is a general rule of law that wiiatever puts on inquiry, where inquiry becomes a duty, amounts to notice, provided a knowledge of the requisite facts would be obtained by the exercise of ordinary diligence.^ This is the fundamental rule of the doctrine of notice generally, but has no application to administrative and remedial process, the notice required in which is quite another kind of notice, and a distinctive or special notice is required to be given under the constitutional guarantees of "due process" and ''the law of the land." In judicial pro- ceedings, as Judge Cooley has well remarked,- the law of the land requires a hearing before condemnation, and a judgment before dispossession.^ Co, Ct. Rep. 525, 19 Pa. Dist. Rep. 883. 6 Neale Millard Co. v. Owens, 115 Ga. 959, 42 S. E. 266; Daven- port, City of, V. Bird, 34 Iowa 524, 527; McKenna v. Cooper, 79 Kan. 847, 101 Pac. 662; Fitzpatrick v. New Orleans, City of, 27 La. Ann. 457; Vinson v. St. Louis & S. F. R. Co., 108 Mo. 588, 32 Am. St. Rep. 624, 18 S. W. 286; Philadelphia, City of, V. Campbell, 11 Phila. (Pa.) 163, 164; Rich v. Trimble, 2 Tyl. (Vt.) 349. 1 See, among many other cases. Hood V. Fahenstock, 1 Pa. St. 440, 44 Am. Dec. 147; Wilson v. McCul- lough, 23 Pa. St. 440, 62 Am. Dec. 347. 2 Cooley's Const. Lim., 4th ed., p. 441. 3 ALA.— Zeigler v. South & N. A. R. Co., 58 Ala. 594; Wilburn v. McCalley, 65 Ala. 436. CAL.— Hey Sing Jeck v. Anderson, 57 Cal, 251, 40 Am. Rep. 115; Modern Loan Co. V. Police Court, 12 Cal. App. 589, 108 Pac. 59. COLO.— Newman v. People, 23 Colo. 300, 307, 47 Pac. 278. HAWAII— Wing Wo Chan & Co. V. Hawaiian Government, 7 Hawaii 503. ILL.— Polar Wave Ice & Fuel Co. V. Alton Branch Hu- mane Soc, 155 111. App. 315. IND.— Loesch V. Koehler, 144 Ind. 278,281, 35 L. R. A. 682, 41 N. E. 326, 43 N. E. 129. IOWA— Mason v. Mes- senger, 17 Iowa 267. KY.^Var- den V Mount, 78 Ky. 86, 39 Am. Rep. 208. MICH.— Parsons v. Rus- sell, 11 Mich. 113, 83 Am. Dec. 728. MO.— Clark v. Mitchell, 64 Mo. 564. NEB.— McConnell v. McKillip, 71 -Neb. 718, 115 Am. St. Rep. 614, 65 L. R. A. 610, 99 N. W. 508. N. J.— Berry v. De Maris, 76 N. J. L. 310, 70 Atl. 340. N. Y.— People ex rel. Witherbee v. Essex County Super- visors, 70 N. Y. 228. N. C— Dan- iels v. Homer, 139 N. C. 253, 3 L. R. A. (N. S.) 997. 51 S. E. 1004. PA.— Ervine's Appeal, 16 Pa. St. 140 ch. VIII.] CHANGE OP REMEDIAL PROCESS. §120 Administrative and remedial process may he changed from time to time by the legislature,'* but only with due regard to the landmarks of the law, established for the protection of the citizen. Notice of a proceeding to affect a person or a thing, duly given actually or constructively, is essential to the jurisdiction of a court over the person or the thing. As it has been admirably put in an early New York case,^ notice of some kind is the vital breath to animate judicial jurisdiction over the person; it is the primary element of the application of the judicatory power ; it is the essence of a cause ; without it there can be no parties, and without parties, there may be the form of a judgment, but no judgment obligating the person.*^ 256, 55 Am. Dec. 599. TENN.— Vanzant v. Waddell, 10 Tenn. (2 Yerg.) 260; Bank of the State v. Cooper, 10 Tenn. (2 Yerg.) 599, 24 Am. Dec. 517. WIS.— Lenz v. Charlton, 23 Wis. 478. FED.— Pen- noyer v. Neff, 95 U. S. 714, 733, 24 L. Ed. 565, 572, affirming 3 Sawy. 274, Fed. Cas. No. 10083; J. W. French, The, 5 Hughes 429, 13 Fed. 916; San Mateo County v. Southern Pac. R. Co., 8 Sawy. 238, 13 Fed. 722, See note 24 Am. Dec. 539, 4 State ex rel. Andreu v. Can- field, 40 Fla, 36, 42 L. R. A. 72, 23 So. 591. Error proceedings is not a new and original action requiring the same strictness of service of no- tice upon the defendant as in the institution of an original action in a court of first instance; and legis- lature may rightfully provide that clerk's record of such proceeding shall constitute sufficient notice. — State ex rel. Andreu v. Canfield, ante; State ex rel. Burbridge v. Call, 41 Fla. 459, 26 So. 1016; State ex rel. Lamar v, Jacksonville Ter- minal Co., 41 Fla. 373, 27 So. 225. 5 Black V. Black, 4 Bradf. (N. Y.) 174, 205. 6 ALA. — Lamar v. Gunter, 39 Ala, 324; Hachett v. Billingslea, 65 Ala. 16. ARK.— Cheatham, Ex parte, 6 Ark. 531, 44 Am, Dec 525. CONN.— Wood v. Watkinson, 17 Conn. 500, 44 Am. Dec. 562; Dur- yee v. Hale, 31 Conn. 217. FLA.— Flint River Steamboat Co. v. Rob- erts, 2 Fla. 102, 48 Am. Dec. 178. GA. — Flint River Steamboat Co. v. Foster, 3 Ga. 194, 48 Am. Dec. 248; Bearing v. Bank of Charleston, 5 Ga. 497, 48 Am. Dec. 300; Parish v. Parish, 32 Ga. 653; Werner v. Webb, 3 Ga. App. 726, 60 S. E. 367. ILL. — Swiggart v. Harber, 5 111. (4 Scam.) 364, 39 Am. Dec. 418; Ken- ney v. Greer, 13 111. 432, 54 Am. Dec. 439; White v. Jones, 38 111. 159. KY.— Reading v. Price, 26 Ky, (3 J. J. Marsh.) 61, 19 Am. Dec. 162; Williams v. Preston, 26 Ky. (3 J. J. Marsh.) 600, 20 Am, Dec. 179; Shaefer v. Gates, 41 Ky. (2 B. Mon.) 453, 38 Am. Dec. 164; Rob- 141 §121 CODE PLEADING AND PRACTICE. [Pt.I, § 121. Citation — Definition and nature. A citation, in its general character, is a summons^ to appear,- and in the civil law, — e. g., in Louisiana practice at the present time, — and in ecclesiastical courts, means the original process by Avhich the defendant is notified to appear and answer in an action.^ It has been adopted in the pro- cedural codes from the canon and ci\dl law,^ being a writ of process issued out of a court of competent jurisdiction commanding the person therein named to appear on a day specified and at a place designated,^ and do a thing therein named or show cause for abstaining from so doing.** In California, a citation is issued by the clerk of the court erts V. Stowers, 70 Ky. (7 Bush) 295. ME. — Penobscot R. Co. v. Weeks, 52 Me. 456. MICH.— Steen V. Steen, 25 Mich. 505; Tyler v. Peatt, 30 Mich. 63. MISS.— Jones V. Commercial Bank, 6 Miss. <5 How.) 43, 35 Am. Dec. 419. MO.— Roach V. Burnes, 33 Mo. 319. N. Y. — Starbuck v. Murray, 5 Wend. 148, 21 Am. Dec. 172. OHIO— Pel- ton V. Platner, 13 Ohio 209, 42 Am, Dec. 197. FED.— Harris v. Harde- man, 55 U. S. (14 How.) 334, 14 L. Ed. 444; Windsor v. McVeigh, 93 U. S. 274, 277, 23 L. .Ed. 914, 916; Settlemier v. Sullivan, 97 U. S. 444, 24 L. Ed. 1110; Hale v. Finch, 104 U. S. 261, 26 L. Ed. 732; Farmers' Loan & Trust Co. v. Mc- Kinney, 6 McLean, 1, Fed. Cas. No. 4667; Burnham v. Webster, 1 Woodb. & M. 172, Fed. Cas. No. 2179; Sumner v. Marcy, 3 Woodb. & M. 105, Fed. Cas. No. 13609. See, also, notes 11 Am. St. Rep. 821, 50 Am. St. Rep. 737, 50 L. R. A. 577. Judgment without service or ap- pearance does not bar action on original demand at residence of debtor. — Whittier v. Mendell, 7 N. H. 252. Jurisdiction of foreign court whose judgment is attacked in court of another state, is always open to inquiry. — Fisher v. Field- ing, 67 Conn. 91, 52 Am. St. Rep. 270, 32 L. R. A. 236, 34 Atl. 714. 1 Bacigalupo v. Superior Court, 108 Cal. 92, 40 Pac. 1055. See Focha v. Focha's Estate, 8 Cal. App. 577, 97 Pac. 322. 2 State V. McCann, 67 Me. 372, 374. 3 Leavitt v. Leavitt, 135 Mass. 191, 193. 4 State V. McCann, 67 Me. 372, 374. 5 As to California citation and its contents, see Kerr's Cyc. Cal. Code Civ. Proc, § 1707; Church's Probate Law and Practice, vol. 2, p. 1459, § 814. For form of citation, see Jury's Adjudicated Forms of Pleading and Practice, vol. 2, pp. 1807-1809, and Church's Probate Law and Practice, vol. 2, p. 1460. Johns V. Phoenix Nat. Bank, 6 Ariz. 290, 56 Pac. 725, 142 ch. VIII,] CITATION — SERVICE AND RETURN. § 122 upon application of any party/ or upon order of the court. In actual practice in the courts in this country — outside of Louisiana, — however, it is seldom if ever used to in- au<;urate jurisdiction on the part of the court,^ but is employed in connection \\dth some act required to be done in a cause over which the court already has jurisdiction ; e. g., in proceedings for the accounting of a guardian or athninistrator in a cause already before the court ; or in proceedings to sell property of a decedent, or of an in- fant ; or in proceedings on appeal,** and the like. In pro- bate proceedings, the judge may cite a person suspected of embezzling or stealing the estate of a decedent, whose estate is under course of administration, to appear and answer.^** In an election contest, a citation is issued to the respondent,^^ but it is not the citation or its service which inaugurates jurisdiction on the part of the court in such a proceeding. In all the cases above mentioned the jurisdiction of the court has already been inaugurated imd attached to a case in which a citation was issued. The s:nne is true in the case of a citation to a party to show reason why he should not be punished as for a contempt of court for disobeying an injunction. § 122. Service and return. A citation is to be served and returned in the same manner as a summons, treated in the following chapters. The citation itself is the important basic legal fact upon which the validity of an order or a judgment rests, and its proper service is essential to give the defendant notice of the proceedings 7 See Kerr's Cyc. Cal. Code Civ. ;> Cohens v. Virginia, 19 U. S. (6 Proc, § 1708; Church's Probate Wheat.) 264, 410, 5 L. Ed. 257, 292. Law and Practice, vol. 2, p. 1461, j, ^^^^,^ ^^.^ ^^^ ^^^^ ^.^ § 817. 8 "Citation" can not be held to mean the original process of sum- mons by means of which an action, 537-540. See, also. Leavitt v. Lea- -e. g., of divorce,-is commenced, ^i", 135 Mass. 191. 193. —Leavitt V. Leavitt, 135 Mass. 191, m Kerr's Cyc. Cal. Code Civ. 193. Proc, §§ 1119, 1124. 143 Proc, §§ 1459, 1460; Church's Pro- bate Law and Practice, vol. 1, pp. §122 CODE PLEADING AND PRACTICE. [Pt. I, and to confer upon the court jurisdiction to make the order or enter the judgment.^ But the service of a cita- tion may be accepted^ or waived^ by the party to be affected by the proceedings, and such acceptance or waiver will bind him."* Where service is not accepted or waived, the citation must be served and returned^ in the same manner as a summons f and where the party to be served has left the state, or resides outside of the state, so that a personal service of the citation can not be made upon him, the service must be made by publication of the citation." The citation is a matter distinct and apart from the return of the officer thereon, or from the proof of ser- Yice thereof; it may be perfectly legal, while the return or the proof of service fails to make a recital of, or allege, all the facts regarding all the things the sheriff, or the person making the service, is required to do ; or the return or proof of service may be regular and unobjectionable in form, and yet the fact may be that no legal service was made,^ — the same as in the case of a summons. 1 See, ante, §§ 118, 120. 2 As to acceptance or acknowl- edgment of service of citation (summons), see, post, §§ 242 et seq. For form of acknowledgment of citation, see Jury's Adjudicated Forms of Pleading and Practice, vol. 2, p. 1808. 3 As to waiver of service of cita- tion (summons), see, post, §§ 250 et seq. 4 See Spencer v. Houghton, 68 Cal. 82, 8 Pac. 679. 5 For form of certificate of cita- tion, see Cliurch's Probate Law and Practice, vol. 2, p. 1462, § 819. For form of proof of service of citation, see Church's Probate Law and Practice, voL 2, p. 1462, § 820 c See Kerr's Cyc. Cal. Code Civ Proc., §§ 1709-1711; Church's Pro bate Law and Practice, vol. 2, pp 1461-1463. 7 Spencer v. Houghton, 68 Cal 82, 8 Pac. 679; Trumpler v. Cotton 109 Cal. 250, 255, 41 Pac. 1033. As to service by publication, see post, §§ 193 et seq. Money judgment can not be en tered on such service by publica tion against guardian who has left the state. — Michigan Trust Co. v, Ferry, 99 C. C. A. 221, 175 Fed 674. 8 Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54. 144 CHAPTER IX. . • peoceedings to obtain jurisdiction the summons. 1. Introductory. § ,123. In general. § 124. Amendment of complaint. § 125. Defective summons — Cured by complaint when. § 126. Alias and pluris summonses. 2 . Nature and Style op Summons. § 127. In general. § 128. Style of process or summons. 3. Form and Contents of Summons. § 129. Contents of summons — 1. Names of parties to the action, etc. § 130. Several persons parties. § 131. Under Practice Act, § 54. § 132. Where plaintiff ignorant of true name. § 133. Where party sues or is sued in represen- tative character. § 134. Where new parties are brought in. § 135. Where personal representative brought in. § 136. 2. Direction to defendant to appear and answer. § 137. 3. Notice of relief to be demanded. § 138. In action on contract for money or dam- ages. § 139. In all other actions. § 140. In actions in ejectment. § 141. In actions for specific relief. § 142. Alternative relief — Wrong relief. § 143. Amending summons. 1. Introductory, % 123. In general,. Wliere a party defendant to an action does not volimtarily appear and submit himself to the jurisdiction of the court, process must be issued, as I Code PI. and Pr.— 10 145 §§124,125 CODE PLEADING AND PRACTICE. [Pt. I, directed by law, requiring such appearance, and must be duly served and returned; in both issuance and service of the summons, there must be a substantial compliance with the requirements of the Code.^ Where a person is once duly and regularly before the court, he is there for every purpose connected with the cause, and is bound to take notice of all the steps and proceedings in the cause. Thus, in an action to foreclose a mortgage, the defendant is bound to take notice of a cross-complaint asking the foreclosure of a second mortgage; the issuance and serv- ice of a summons on the cross-complaint is unnecessary.- ■§ 124. Amendment of complaint. An amendment to a complaint, after service of summons, wdiere such amend- ment is merely as to a formal matter, does not require a new service of process on a defendant who has not ap- peared.^ The filing of a supplemental complaint is neither an amendment nor a new cause of action, and does not require a new service of process on defendant, where the supplemental complaint was filed in open court and a copy served upon the attorney of record.- But an amendment which introduces a new cause of action, or enlarges the amount of the demand for which judgment will be rendered on default, requires the service of a new process on a non-appearing defendant;^ where the orig- inal service was by publication, there must be a new pub- lication.^ « § 125. Defective summons — Cured by complaint WHEN. The general rule is that the summons must con- tain all the matters the statute declares to be requisite, 1 Gulp, In re, 2 Cal. App. 70, 83 '-• United States v. Rio Grande Pac. 89. Dam & Irr. Co., 13 N. M. 386, 85 li Lawson v. Rush. 80 Kan. 262, Pac. 393; affirmed, 215 U. S. 266, 101 Pac. 1009. 54 L. Ed. 190, 30 Sup. Ct. Rep. 97. 1 Manspeaker v. Bank of . To- "> Schuttler v. King, 12 Mont. 149, peka, 4 Kan. App. 768, 46 Pac. 30 Pac. 25. 1012; White V. Hinton, 3 Wyo. 753, 4 Wood v. Nicholson, 43 Kan. 17 L. R. A. 66, 30 Pac. 953. 4G1, 23 Pac. 587. 146 cl). IX.] DEFECTIVE SUMMONS, CURE OF. § 125 because wliere the law expressly directs that the process shall be in a specified form, and contain designated mat- ter, such provision is mandatory,^ and a failure to comply with the requirements of the law in that respect will ren- der the process void.^ But in those cases in which a copy of the complaint is served with the summons, and the facts required to be inserted in but omitted from the sum- mons are supplied by the complaint, the defects in the summons are cured by the complaint, particularly under a constitutional provision requiring appellate courts to affirm a correct judgment, notwithstanding any error com- mitted during the trial. ^ The copy of the complaint served with the copy of the summons should be deemed a part of the summons or notice to the defendant, and should be read with the summons to explain any apparent ambiguity.* In those cases in which land is involved in the cause of action and is the subject of litigation, a description of the land in the summons as "the land de- scribed in the complaint," the complaint is, by reference, made a part of the summons.^ 1 See, post, § 129, footnote 6. possession the defendant could 2 Smith V. Aurich, 6 Colo. 388. not have been misled as to the See Lyman v. Milton, 44 Cal. 630. nature of the relief demanded or 3 First Nat. Bank of Joseph v. as to the court in which the pro- Rush, 64 Ore. 35, 43 L. R. A. ceeding was instituted. Conced- (N. S.) 138, 127 Pac. 780, 129 Pac. ing the slips mentioned are errors, 121. they are not such errors as would See note, 43 L. R. A. (N. S.) substantially affect the rights of 138-146. the appellant." — First Nat. Bank 4 Id.; Swift V. Meyers, 37 Fed. v. Rusk, ante. 37, 40. See Gagnato, questions r> Calderwood v. Brooks, 28 Cal. discussed in: Chirk v. Palmer, 90 151; People v. Dodge, 104 Cal. Cal 504, 27 Pac. 375; Behlow v. 487, 490, 492, 38 Pac. 203. See Smith, 91 Cal. 141, 27 Pac. 546; King v. Blood, 41 Cal. 314. Kimball v. Castagnio, 8 Colo. 525, Notice of motion for new trial 9 Pac. 488; Higley v. Pollock, 21 "based upon a statement to be Nev. 198, 27 Pac. 895; Miller v. hereafter filed," is not a com- Zeigler, 3 Utah 17, 5 Pac. 518. pliance with § 197 Nevada Practice See, also, post, § 129, footnote 4. Act (Stats. 1869, p. 226) requir- "With all the information con- ing the notice to "designate gen- tained in these two papers in his erally the grounds upon which M7 §§126, 127 CODE PLEADING AND PRACTICE. [I't. T, § 126. Alias and pluris summonses. The Californifi Code of Civil Procedure/ and a similar provision is found in other Codes and statutes, provides that where a summons is returned without being served, or is lost, upon demand of the plaintiff, the clerk of the court may issue an alias summons- ''in the same form as the orig- inal," which provision has been construed to mean sim- ply that the alias summons must conform to the require- ments of section 407 of the Code of Civil Procedure, and does not prohibit the insertion in an alias summons of the name of a defendant which, through clerical error, was omitted from the original summons.^ The proviso in section 408 of the Code of Civil Procedure relates to the service of the original summons or its return within a year of its issuing, and has no reference to parties brought in by order of the court or by stipulation of par- ties.^ Service on defendant of an alias or a pluris sum- mons, instead of the original summons, does not render the service defective or void.^ 2. Nature and Style of Smnmons. § 127. In general. Like a citation, above noted,* a summons is a command to appear, and its object is to put the motion will be made." — Street Alias summons not defective V. Lemon Mill & Min. Co., 9 Nev. where it substantially complies 251, 253. with the original. — Hill v. Morgan, It is scarcely necessary to sug- 9 Idaho 718, 76 Pac. 323. gest that you can not "incorporate Motion to quash summons pend- by reference" something which ing, defendant not required to has no present existence. obey a second or alias summons 1 Kerr's Cyc. Cal. Code Civ. correcting defects in original, the Proc, § 408. court not having directed the 2 Where not served or returned, issuance of the alias summons. — and more than four years have Harris v. Walter, 2 Colo. App. elapsed since the issuance of the 450, 31 Pac. 231. original summons, the court has 4 Bank of Venice v. Hutchin- no power to issue an alias sum- son, 19 Cal. App. 219, 125 Pac. mons. — White v. Superior Court, 252. 126 Cal. 245, 58 Pac. 450. 5 Roznik v. Becker, 68 Wash. :: Doyle v. Hampton, 159 Cal. 63, 122 Pac. 593. 729, 116 Pac. 39. i See, ante, § 121. 148 ell. IX.] NATURE AND STYLE OF SUMMONS. § 127 the defendant upon notice of the demand against him, and to bring him into court at the time specified in the summons.^ In California it is a notice to defendant that an action has been commenced against him, informs him who has commenced the action, where it is brought, in what court it is brought, the relief demanded, and that, if he fails to answer within ten days, or in such other time, depending upon where the summons is served, default will be taken against him. In California the summons always follows the complaint, and is only issued after the filing of a complaint; but in many states the suimnons precedes the complaint, and the issuance of it is the first step or commencement of the action ; but here the action is commenced by ''filing a complaint" in the court where the action is brought.^ This filing of the complaint gives the California court jurisdiction of the cause, but not of the person of the defendant; the latter is secured by the service of the summons, only. The summons may be issued at any time Avithin one year after filing the com- plaint;* but after the expiration of one year the clerk is not authorized to issue a summons wdthout an order of the court ; and if the court is authorized to order the issu- ance of a summons after that period, the exercise of the 2 Sweeney v. Schultes, 19 Nev. Dismissal for failure to serve 53, 6 Pac. 44, 8 Pac. 768. and return within three years. — Paper purporting to be copy of Kerr's Cyc. Cal. Code Civ. Proc, a summons fails to state the name § 581, subd. 7. of the plaintiff, the answer day is Under Colorado Code action is not dated, and does not have the commenced by issuance of a sum- name of the clerk signed thereto, mons; by §32 it is provided that and no indication of the seal cf the complaint must be filed within the court thereon, is insufficient ten days after issuance of sum- notice to give the court jurisdic- mons, or the action may be dis- tion of the person of the de- missed. This latter provision is fendant. — Jones v. Marshall, 3 not mandatory; authority to dis- Kan. App. 529, 43 Pac. 840. miss rests in the sound legal 3 Kerr's Cyc. Cal. Code Civ. discretion of the trial Judge.— Proc, § 405. Knight v. Fisher, 15 Colo. 176, 4 Kerr's Cyc. Cal. Code Civ. 25 Pac. 78; Burkhardt v. Haycox, Proc, § 406. 19 Colo. 339, 35 Pac. 730. 149 §127 CODE PLEADING AND PRACTICE. [Pt. r, power is in its discretion.^ The dismissal of an action for want of service of the summons is also in the discretion of the trial judge, "^ the only limitation upon the judge being that he shall not abuse his legal discretion." An order of the court striking from the files a complaint, where no service of process was had on the defendant until after nine years had elapsed, was held not to be an abuse of the judicial discretion.** Signed by cler¥* of court, summons must be, and directed to the defendant, and it must be issued under 5 Dupuy V. Shear, 29 Cal. 238; Coombs V. Parish, 6 Colo. 296; Stevens v. Carson, 21 Colo. 283, 40 Pac. 570, reversing 2 Colo. App. 200, 30 Pac. 1101; State Sav. Bank V. Albertson, 39 Mont. 421, 102 Pac. 694. « Kerr's Cyc. Cal. Code Civ. Proc, §581; Grisby v. Napa County, 36 Cal. 585, 99 Am. Dec. 213; Carpentier v. Minturn, 39 Cal. 450; Eldridge v. McKay, 45 Cal. 49, 50; Landor v. Flemming, 47 Cal. 614; McDonald v. Sweet, 76 Cal. 257, 18 Pac. 324; Murray v. Gleeson, 100 Cal. 511, 35 Pac. 88; Hassey v. South San Francisco Homestead & R. Assoc, 102 Cal. 611, 613, 614, 36 Pac. 945; First Nat. Bank v. Nason, 115 Cal. 626, 628, 47 Pac. 595; McLaughlin v. Clausen, 116 Cal. 487, 489, 48 Pac. 437; People ex rel. Stone v. Jef- ferds, 126 Cal. 296, 299, 58 Pac. 704; Ferris v. Wood, 144 Cal. 426, 428, 77 Pac. 1037; Knight v. Fisher, 15 Colo. 176, 25 Pac. 78; State Sav. Bank v. Albertson, 39 Mont. 421, 102 Pac. 694; Luke v. Ben- nion, 36 Utah 64, 106 Pac. 713. 7 Kreiss v. Hotaling, 99 Cal. 383, 33 Pac. 1125. See: Cowell v. Stewart, 69 Cal. 525, 11 Pac. 57; Saville v. Frisbie, 70 Cal. 87, 11 Pac. 502; Kubli v. Hawkett, 89 Cal. 638, 27 Pac. 57; Castro v. San Francisco, City of, 4 Cal. Unrep. 500, 35 Pac. 1035; San Jose Land & Water Co. v. Allen, 129 Cal. 247, 250, 61 Pac. 1083; Mowry v. Weisenhorn, 137 Cal. 110, 113, 69 Pac. 971; Bernard v. Parmelee, 6 Cal. App. 545, 92 Pac. 661; Gray V. Times-Mirror Co., 11 Cal. App. 160, 104 Pac. 482. Statute mandatory where ser- vice and return not made within six years. — Vrooman v. Li Po Tai, 113 Cal. 302, 306, 45 Pac. 470. s Dupuy V. Shear, 29 Cal. 238. Lindsay v. Kearny County Commissioners, 56 Kan. 630, 44 Pac. 603. Clerk of Probate Court may sign summons in Idaho. — Zim- merman V. Bradford-Kennedy Co., 14 Idaho 681, 95 Pac. 825. Signature of clerk fundamental part of summons, and failure of clerk to sign summons renders it invalid. — Sharman v. Huot, 20 Mont. 555, 63 Am, St. Rep. 645, 52 Pac. 558. — Affixing seal of court is a suf- ficient adoption by the clerk of his printed signature on the in- strument. — Ligare v. California So. R. Co., 76 Cal. 610, 18 Pac. 150 h. IX.] STYLE OF SUMMONS. §128 the seal of the court.^^ A summons without authentica- tion by the seal of the court is void.^^ A substantial com- pliance with the requirements of the statute in issuing a summons, is all that is required.^- Abbreviations in summons, such as are in common use, may be used in a summons, the same as in any other legal document, pleading, or record, of legal proceedings, and numbers may be expressed by figures or numerals in the customary manner. ^^ § 128. Style of process or summons. The form of process, and in what name it shall run, 'is prescribed by the constitution or by the codes and statutes of the vari- ous states.^ The constitution of California provides that 777; Loughren v. Bonniwell, 125 Iowa 521, 106 Am. St. Rep. 319, 101 N. W. 288. Signature by attorney for plaintiff summons sufficient in Colorado. — Rand v. Pantagraph Stationery Co., 1 Colo. App. 270, 28 Pac. 661. Summons so signed is not "process." See, ante, § 128, footnote 2. 10 Kerr's Cyc. Cal. Code Civ. Proc, § 407. Paper not signed by clerk and without indication of seal of court, insufficient notice to give court jurisdiction of person of de- fendant. — Jones V. Marshall, 3 Kan. App. 529, 43 Pac. 840. 11 Choate v. Spencer, 13 Mont. 127, 40 Am. St. Rep. 425, 20 L. R. A. 424, 32 Pac. 6.j1. Remediable irregularity for clerk to omit seal, under statute per- mitting amendment. — Starkey v. Lung, 57 Ore. 151, Ann. Cas. 1912D, 783, 110 Pac. 702. See Kipp v. Burton, 29 Mont. 99, 101 Am. St. Rep. 544, 63 L. R. A. ;]27, 74 Pac. Requirement of seal mandatory. — Farrell, In re, 36 Mont. 262, 92 Pac. 785; White v. Taylor, 46 Tex. Civ. App. 473, 102 S. W. 747. 12 See: Burkhardt v. Haycox, 19 Colo. 339, 35 Pac. 730; White v. litis, 24 Minn. 46; Higby v. Pollock, 21 Nev. 198, 207, 27 Pac. 895; Ralph v. Lomer, 3 Wash. 401, 405, 28 Pac. 760. 13 Kerr's Cyc. Cal. Code Civ. Proc, § 186. 1 Illinois Const. 1870, art. VI. §33. Louisiana Const. 1812, art. 4, §6; Const. 1845, art. 45; Const. 1852, art. 71. Does not include citations. — Bludworth v. Sonipeyrac, 3 Mont. (O. S.) 719: Kimball v. Taylor, 2 Woods 37, Fed. Cas. No. 7775. Michigan Const, art. VI, §35. Minnesota Const, art. VI, § 14. Summons not "process" within. — Cleland v. Tavernier, 11 JNIinn. 194; Hanna v. Russell, 12 Minn. 80; Lowrey v. Harris, 12 Minn. 255. 151 §128 CODE PLEADING AND PRACTICE. [Pt. I, the style of process sliall be ' ' The People of the State of California," and that all prosecutions shall be conducted in the name and by the authority of the people of the state.^ The style of the summons as above given is the Nebraska Code (1882), §880. Nevada Const, art. VI, § 13. Does not include summons. — Brooks V. Nevada Nickel Syndi- cate, 24 Nev. 311, 53 Pac. 597, New Jersey Const, art. VIII, § 3. Applies to English common-law writs only.— Lenning v. Newkirk, 7 N. J. L. (2 Hoist.) 87. Oregon Code (1876) § 1166. Not a "process." — Bailey v. Wil- liams, 6 Ore. 71; Whitney v, Blackburn, 17 Ore. 571, 11 Am. St. Rep. 857, 21 Pac. 876. Wisconsin Const, art. 7, § 17. 2 California Const. 1879, art. VI, § 20, Henning's Gen. Laws, 2d ed., p. 64. In Nevada a summons is not a "process" within the meaning of the constitution, art, VI, § 13, re- quiring all process to run in the name of the state. — Brooks v. Nevada Nickel Syndicate, 24 Nev. 311, 53 Pac. 597. Under Colorado statute (Act April 7, 1885) a summons issued and signed by plaintiff's attorney is not "process" within the purview of a constitutional provision re- quiring all process to run in the name of the people, although its service is the statutory method of commencing a suit. — Comet Con- sol. Min. Co. V. Frost, 15 Colo. 310, 25 Pac. 506. Under Oregon Code the sum- mons is used to commence a civil action, but technically such sum- mons is not "process," but is more in the nature of a mere notice in- forming the defendant that an ac- tion has been commenced against him, and that he is required to answer the complaint within a specified time. — Bailey v. Wil- liams, 6 Ore. 71; Whitney v. Blackburn, 17 Ore. 564, 571, 11 Am. St. Rep. 857, 862, 21 Pac. 874. Immaterial In what part of summons require style is in- serted. — White V. Com., 6 Beir (P. A.) 179, 6 Am. Dec. 443. Not running in name of state, process fatally defective. — Gil- breath v. Kuykendall, 1 Ark. (1 Pike) 50; Wallahan v. Ingersoll, 117 111. 123, 7 N. E. 519; Yeager V. Groves, 78 Ky. 278; Little v. Little, 5 Mo. 227, 32 Am. Dec. 317; Manville v. Battle Mountain Smelting Co., 5 McC. 328, 27 Fed. 126. Contra: Gilmer v. Bird, 15 Fla. 410 (summons not a "process"); Nichols V. Burlington & Louisa County Plank Road Co., 4 G. Greene (Iowa) 42; Hansford v. Hansford, 34 Mo. App. 362 (pro- vision merely directory) ; Bailey V. Williams, 6 Ore. 17; Whitney V. Blackburn, 17 Ore. 571, 11 Am. St. Rep. 857, 21 Pac. 876; Porter V. Vandercook, 11 Wis. 70 (under code). Novel jurisdiction conferred upon court by statute laying down mode of procedure, summons need not run in name of "the people," unless the statute so requires. Process in name of United States, within jurisdiction of state, is void. — Gilbreath v. Kuykendall, 1 Ark. (1 Pike) 50. 152 ell. IX.] SUMMONS, FORM AXD CONTEXTS. § 129 only thing regarding the head of the summons that is in- dispensable. The California Code of Civil Procedure provides, among other things, that the summons shall contain the name of the court in which the action is brought ;^ but it is thought that the name of the court at the commencement of the summons is not an indispen- sable element to a valid summons, and that consequently an error in the name of the court will not be fatal to the validity of a summons otherwise sufficient. Thus, in an early case in California, before the adoption of the pres- ent constitution and the change in the nomenclature of the courts, at the head of the summons was written ''Dis- trict Court of the fourth judicial district," but the sum- mons was issued from the County Court, and tested by the county judge : it was held that the words at the top of the summons, ''District Court," etc., were no part of the writ.^ Name of attorney for plaintiff is usually endorsed upon a summons in California,^ but the Code of Civil Pro- cedure does not so require.^ 3. Form and Contents of Summons. % 129. Contents of summons — 1. Names of paeties to ACTION, ETC. The California Code of Civil Procedure pre- State and county named in 3 Kerr's Cyc. Cal. Code Civ. margin, separated by a line from Proc, § 407. the commencement, not a running 4 Crane v. Brannan, 3 Cal. 195. in name of state.— Fowler v. "Stating the name of the court Watson, 4 Mo. 27. ..,.,• ^ • ^ 1 „^ ., . in the complaint is a formal, and "State of West Virginia" is not ^ . . ■,. ^. , ., .. ,t- • J ..T ..1, not a jurisdictional matter. — Mr. equivalent to the required In the a^„.«o ,. ^ , „. , ,Tr X Tr- Justice Wolverton m Adams v. name of the State of West Vir- . . „ „ ^ ^,„., ,. „r Kelly, 44 Ore. 66, 74 Pac. .'.00, rc- ginia." — Beach v. O Riley, 14 W. . . viewing the precedents. Va 55 Compare: Mabbett v. Vick, 53 •' See Jury's Adjudicated For^.s Wis 158, 10 N. W. 84. °^ Pleading and Practice, vol. II, "The State of Florida" held suf- P- 15^04. form No. 472. ficient style of process in that « See Kerrs Cyc. Cal. Code Civ. state.— Branch v. Branch, 6 Fla. Proc, § 407. 214. 153 §129 CODE PLEADING AND PRACTICE. [Pt.I, scribes the contents^ of a summons.- This requirement is that the summons shall state, among other things enu- merated: (1) The names of the jjarties to the action ;•• (2) the court in which the action is brought,^ and (3) the county in which the complaint is filed.^ These require- ments of the Code are thought to be mandatory, and not merely directory.^ 1 As to style of summons, see, ante, § 124. 2 For form of summons, see Jury's Adjudicated Forms of Pleading and Practice, vol. II, pp. 1804 et seq. 3 See, post, footnotes 6 and 12, this section. 4 Name of county changed re- cently, entitling summons in old name of county instead of in new name of county, does not consti- tute a fatal defect, where the summons is regular in all other respects. — Vicks v. Gilmer, 5 Okla. 740, 50 Pac. 131. Omission of name of court does not render summons void where a copy of the complaint is served with a copy of the summons, and the complaint contains the name of the court; the complaint cures the defect. — See: Webb v. Mott, 6 How. Pr. (N. Y.) 439; Yates v. Blodgett, 8 How. Pr. (N. Y.) 278; Hewitt V. Howell, 8 How. Pr. (N. Y.) 346; Tallman v. Hinman, 10 How. Pr. (X. Y.) 89. See, also, ante, § 125. Name of court correctly given in summons, the fact that on the face of the complaint there, is a misnomer of the court, though the proper name is endorsed on the back or cover of the complaint, is a defect not affecting a sybstan- tial right of the defendant. — Fil Ki, Ex parte, 79 Cal. 584, 21 Pac. 974. Wrong name of court given, when summons otherwise regular and sufficient, has been said not to vitiate the summons. Thus, where the summons was headed with the words "District Court," but was issued out of the County Court, under the County Court seal, and attested by the judge of said court, it was held good as the writ of the County Court. — Crane v. Brannan, 3 Cal. 192. 5 Kerr's Cyc. Cal. Code Civ. Proc, § 407, subd. 1. Omission of name of county in which action brought held to have been cured by service of copy of complaint with copy of summons. — First Nat. Bank of Joseph V. Rusk, 64 Ore. 35, 44 L. R. A. (N. S.) 138, 127 Pac. 780, > 129 Pac. 121. See, also, authorities sustaining this holding collected in .'note 44 L. R. A. (N. S.) 138-146. f. Lyman v. Milton, 44 Cal. 630; Ward V. Ward, 59 Cal. 139, 141; Smith V. Aurich, 6 Colo. 388; White V. Johnson, 27 Ore. 282, 294, 50 Am. St. Rep. 726, 733, 40 Pac. 511. Compare. Bewick v. Muir, 83 Cal. 368, 369, 23 Pac. 389. loi Ch. IX.] NAMES OF ALL PARTIES TO BE GIVEN. §§ 130, 131 § 130. Several persons parties. In those cases in wbicli there are several persons parties, either l)arties plaintiff or parties defendant, under the provi- sion of the Code requiring the setting out of the names of the parties to the action,* the individual names of each person who is a party, either as plaintiff or as defend- ant, should be inserted in the summons. The insertion merely of the name of the first plaintiff, or of the first defendant, followed by the Latin abbreviation ''et al." or its equivalent in English, *'and another" or "and others," as the case may be, is thought not to be a suffi- cient compliance with the requirement of the code. The provision of the Code of Civil Procedure relative to papers ^\^thout a title or with a defective title,- mani- festly has reference to and applies to papers filed in the various steps of a cause after the court has acquired jurisdiction of the cause and of ^he person of the defend- ant, but has no reference to and is not applicable to a ])rocess originating jurisdiction of the person of the de- fendant or defendants, in view of the mandatory provi- sions of section 407.^ §131. Under Practice Act § 54. The re- quirement under the Practice Act in force prior to the adoption of the Code of Civil Procedure in California, was essentially the same as the requirement under that Code, being that *'the summons shall state the parties to the action." Under this requirement of the Practice Act it was held that the summons must contain the names of all the parties defendant, and that it is not sullicient to give the name of the first defendant, followed by the Latin abbreviation '*et al." The court saying that "the words *et al.,' in the connection in which they are used in the summons, are of no significance."* This holding 1 See, ante, § 129. i Lyman v. Milton, 44 Cal. G30. li Kerr's Cyc. Cal. Code Civ. 633. See: Cameron v. Slieppard, Proc, §1046. 71 Ga. 781, 782: Orr v. Webb, 101 o See, ante, § 129, footnote 6. Ga. 89, 92, 28 S. E. 618. 155 § 132 CODE PLEADING AND PRACTICE. [Pt. I, of the court is not only sound on principle, but is in full accord with the decisions of other courts on cognate questions involving the sufficiency of the words " et al. " to represent parties to an action who are not otherwise named, where there are two or more such parties. Thus, it has been directly held that the words ' ' et al. " amount to nothing in a bill of exceptions, and that the persons whose names are not set out are not parties to the appeal ;-" that they are not sufficiently descriptive in an exception to the probate of a will, as they do not identify the persons who would be the particular beneficiaries of a judgment of reversal f that they are not sufficient following the name of a party in a petition for a writ of error,^ to designate any person whose name is not set out, although such other person was a party on the trial below f that a recital in a clerk's entry to the effe(*t that a jury was duly sworn to try the issues in a cause between A against B ^'et al.," does not indicate that the jury was sworn to try the cause as against C and D, also defendants.^ Other like deci- sions could be given, but these must suffice. § 132. Where plaintiff ignoFlANt of true NAME. In those cases in which the plaintiff is ignorant of the true name of the defendant, that fact must be stated in the complaint^ — and that ignorance must be real and not wilful ig-norance, or such as might be removed by inquiry- — he may designate the defendant by any name, ■2 Mutual Building, L. & Invest, praised, there being other defen- ce. V. Dickerson, 112 Ga. 469, 37 dants whose interest is not ap- S. E. 713; Orr v. Webb, 112 Ga. praised, does not vitiate the ap- 806, 808, 38 S. E. 98. praisement.— Pierce v. Reed, 3 3 Swift V. Thomas, 101 Ga. 89, 28 ^'^b. Unof. Rep. 874, 93 N. W. 154. S. E. 618. ^ Breidenthal v. McKenna, 19 1 Rosencrantz v. Rogers, 40 Cal. 5 Brabham v. Custer County, 3 439, Neb. Unof. Rep. 801, 92 N. W. 989. o"id.; Clark v. Oregon Short Addition of "et al." after de- Line R. Co., 29 Mont. 321, 74, Pac. fendant whose interest is ap- 735. 156 ell. IX.] FICTITIOUS XAilE APPEARANCE. § 132 and he may be so identified in the summons and served therewith; when the true name is discovered, the plead- ings and papers or proceedings must be amended by in- serting the true name,^ and the defendant thereby be- comes a party to the action under his true name from the beginning thereof.* Where there is no allegation in the complaint that the name of the defendant is to the plaintiff unknowTi, there is no foundation for the bringing of an action against a fictitious person, and no authority to make service of summons by publication.^ Where the complaint alleges that the name of the defendant is un- known, it has been said that the defendant in such a case is not entitled to have the summons set aside on the ground that the plaintiff could readily have ascertained the real name of the defendant, if he had exercised rea- sonable diligence in examining the public records of the county.^ Defendant having appeared, being sued in a fictitious name, and answered by his true name, it is not necessary that the summons be amended by inserting the true for the fictitious name, for the reason that the appearance of the defendant is a waiver of any defect in the summons, or of any summons at all.'^ The complaint, however, must be amended, or the judgment will be irregular, though not void,^ and reversible on appeal, because appearance 3 Kerr's Cyc. Cal. Code Civ. 8 Campbell v. Adams, 50 Cal. Proc, §474. 205; Baldwin v. Morgan, 50 Cal. 4 See, Hoffman v. Keeton, 132 589; Farris v. Merritt, 63 Cal. 119; Cal. 195, 196, 64 Pac. 264. Tyrrell v. Baldwin, 67 Cal. 1, 3, 6 5 People V. Herman, 45 Cal. 689, Pac. 867; Johnston v. San Fran- 690. Cisco Sav. Union, 75 Cal. 134, 140, 6 Irving V. Carpentier, 70 Cal. 7 Am. St. Rep. 132, 16 Pac. 753. 23, 11 Pac. 391; Hoffman v. Served in wrong name, failure Keeton, 132 Cal. 195, 197, 64 Pac. of defendant to appear and answer 264; Blackburn v. Bucksport & Elk will not relieve him of any judg- River R. Co., 7 Cal. App. 649, 654, ment that may be rendered. Thus, 95 Pac. 670. where defendant was sued on a 7 As to appearance, see, post, foreign judgment rendered against §§ 255-288. "P. J. Narver," he can not avoid 157 §§133,134 CODE PLEADING AND PRACTICE. [t't. 1, and answer by the defendant is not a waiver'' of such amendment.^" If the name by which a party defendant is known is inserted, it is sufficient;" where the name as given, when pronounced, sounds the same as the true name, the doctrine of the idem sonans applies. ^- § 133. Where party sues or is sued in repre- sentative CHARACTER. Where a party is sued in a repre- sentative character, or sues in such character, the char- acter in which he sues or is sued should be stated in the summons after his name;^ and the summons and com- plaint must agTee in this regard. Thus, where the sum- mons described the plaintiff as administrator, and in the complaint he is represented as suing in his individual capacity, and for a demand in his own right, the variance mil be fatal.- §134. Where new parties are brought in. Under the reformed system of judicature, created by the adoption of codes of procedure in many of the states, the liability by evidence establishing person served as one of the de- the fact that his name is "John fendants is prima facie estab- Warner." — Foshier v. Narver, 24 lished. — Galliano v. Kilfoy, 94 Cal. Ore. 441, 41 Am. St. Rep. 874, 34 86, 29 Pac. 416. See, Donohoo- Pac. 21. Kelly Banking Co. v. Southern 9 Baldwin v. Morgan, 50 Cal. ^^^- ^- Co., 138 Cal. 183, 19:], 04 Am. St. Rep. 28, 71 Pac. 93. . "Question whether name idem sonans with another is not a ques- tion of spelling but of pronunc^a- n Cooper v. Burr, 45 Barb. tion, depending less upon rule (N. Y.) 9; Miller v. Stettiner, 20 than upon usage."— Com. v. Don- N. Y. Sup. Ct. Rep. (7 Bosw.) 692, 0^3^, 95 Mass. 571. See: Schlachs 22 How. Pr. 518. v. Johnson, 13 Colo. App. 130, 56 12 Thus, where a defendant sued Pac. 673; Roland v. State, 127 Ga. as "Rosa" Kilfoy has default 402, 56 S. E. 413. entered against her by that name As to idem sonans, see note, 27 upon a return of service of sum- Am. St. Rep. 785; 100 Am. St. Rep. mons upon "Rose" Kilfoy, de- 331, 341. scribed in the return as "one of 1 Ryan v. Holliday, 110 Cal. 335, the defendants," the names will be 42 Pac. 891. considered as substantially the 2 Blanchard v. Strait, 8 How. same, and the identity of the Pr. (N. Y.) 83. 158 585. 10 McKinlay v. Tuttle, 42 Cal 577. ch. IX.] NEW PARTIZS BROUGHT IN. §134 courts have power to order new parties to be brought into the case when necessary for the purposes of justice ;^ and this the courts may do of its own motion whenever neces- sary to a full and complete administration of justice in the cause before them.- In some jurisdictions, under the new system of judicature, new parties are brought in by amendment of the pleadings,^ and this is probably the prevailing practice;^ in other jurisdictions by means of cross-complaint or cross-bill,^ or by supplemental com- 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 339. 2 May dismiss without prejudice to the bringing of a new action, in which all the necessary parties will be included. — Knapp v. Mc- Gowan, 96 N. Y. 75. See matter fully discussed in the part of this treatise devoted to "Parties to Action." 3New parties can not be brought in by amendment under the doctrine of some decisions and the practice in some jurisdic- tions. — See, among other cases: McWilliams v. Anderson, 68 Ga. 772; Winslow v. Merrill, 11 Me. 127; Ayer v. Gleason, 60 Me. 207; Chouteau v. Hewitt, 10 Mo. 131; Wilson V. Wallace, 8 Serg. & R. (Pa.) 53; Chamberlin v. Hite, 5 Watts (Pa.) 373; Noll v. Swini- ford, 6 Pa. St. 187. 4 Hook V. Brooks, 24 Ga. 175; Chapin v. Curtenius, 15 111. 427; Goddard v. Pratt, 33 Mass. (16 Pick.) 412; Montague v. King, 37 Miss. 441; Owen v. Weston, 63 N. H. 599, 56 Am. Rep. 547; State ex rel. Thorndike v. Collins, 68 N. H. 46, 36 Atl. 550; Powell v. Myers, 1 Barb. (N. Y.) 427; Green v. Deberry, 24 N. C. (2 Ir°d. L.) 344; White v. Johnson, 27 Ore. 282, 50 Am. St. Rep. 726, 40 Pac. 511; Walthour v. Spangler, 31 Pa. St. 523; Mead v. Bagnall, 15 Wis. 156; Lewis v. Darling, 57 U. S. (16 How.) 1, 14 L. Ed. 819; Hub- bard v. Manhattan Trust Co., 30 C. C. A. 520, 87 Fed. 57; Thomas V. Anderson, 138 C. C. A. 405, 223 Fed. 44. Upon appeal, upon hearing, order may be made that cause stand over, with liberty to plain- tiff in action below to add new parties by amendment. — Lewis v. Darling, 57 U. S. (16 How.) 1, 14 L. Ed. 819. i5 Contrary view, under former system of judicature, in which cross-bill to make new parties is improper and irregular; cross-bill implies a demand by a defendant against an existing plaintiff to a pending suit, or against other existing defendants of such suit, or both against existing plaintiffs and defendants. — Shields v. Bar- row, 58 U. S. (17 How.) 130, 145, 15 L. Ed. 158. 162. See: Phoenix Mut. Lifs iiis. Co. V. Grant, 3 McA. (D. C.) 47; Ladner v. C»g-uca, 31 Miss. 340; Bishop v. Miller, 48 Miss. 369; Derbyshire v. Jones, 94 Va. 142, 26 S. E. 417; Ayres v. Carver, 58 U. S. (17 How.) 595, 15 L. Ed, 181; Randolph v. Robin- son, 3 N. J. L. Journal 171, Fed. 159 §134 CODE PLEADING AND PRACTICE. [Pt. I, plaint or supplemental bill f while in yet other jurisdic- tions new parties are inducted into the case either by amended or supplemental pleading and a new summons.' By whatever process new parties are brought into court, as to them it is a new action or suit,^ and the court can Cas. No. 11561; Adelbert College of Western Res. University v. To- ledo, W. & W. R. Co., 47 Fed. 836, 846; Gregory v. Pike, 15 C. C. A. 33, 67 Fed. 845; Thurston v. Big Stone Gap Imp. Co., 86 Fed. 485, 486; Patton v. Marshall, 97 C. C. A, 610, 173 Fed. 354, 26 L. R. A. (N. S.) 127; United States v. Woods, 138 C. C. A. 578, 223 Fed. 318; United States Gypsum Co. v. Hoxie, 172 Fed. 505. Defendant requiring new parties must file original pleading of his own. — Richman v. Donnell, 53 N. J. Eq. 35, 30 Atl. 534. « CAL. — Goodell v. Verdugo Canyon Water Co., 138 Cal. 308, 71 Pac. 354; Winter v. McMillan, 87 Cal. 256, 22 Am. St. Rep. 243, 25 Pac. 407, distinguishing Harrison V. I.IcCormick, 69 Cal. 616, 618, 11 Pac. 456; Eureka, City of, v. Gates, 120 Cal. 54, 58, 52 Pac. 125; Lewis V. Fox, 122 Cal. 244, 250, 54 Pac. 823; MacKenzie v. Hodgkin, 126 Cal. 591, 595, 77 Am. St. Rep. 209, 212. 59 Pac. 36; Stockton Sav. & L. Soc. V. Harrold, 127 Cal. 612, 60 Pac. 165; Alpers v. Bliss, 145 Cal. 565, 571, 79 Pac. 171; Mitau V. Roddan, 149 Cal. 1, 9, 6 L. R. A. (N. S.) 275, 84 Pac. 145; Syvertson V. Butler, 3 Cal. App. 345, 347, 85 Pac. 164. COLO.— Allen v. Tritch, 5 Colo. 222, 228. FLA.— Price v. Stratton, 45 Fla. 535, 33 So. 644. GA. — Morgan v. Morgan, 10 Ga. 297. IOWA— Bunce v. Bunce, 59 Iowa 533, 534, 13 N. W. 705; Farmers' & Merchants' Bank v. Wood Bros. & Co., 143 Iowa 635, 118 N. W. 282, 120 N. W. 625. MICH.— Griffin v. Griffin, 112 Mich. 87, 89, 70 N. W. 423, 424. N. Y.— Prouty V. Lake Shore & M. S. R. Co., 85 N. Y. 372. TENN.— Hilde- brand v. Hildebrand, 54 Tenn. (7 Heisk.) 123; Pollard v. Wellford, 99 Tenn. 120, 42 S. W. 25. UTAH — Chalmers v. Trent, 11 Utah 88, 99, 39 Pac. 488. W. VA.— Kanawha Lodge v. Swann, 37 W. Va. 178, 16 S. E. 462. WIS.— Hungerford v. Gushing, 8 Wis. 332. FED. — Brandon Mfg. Co. v. Prime, 14 Blackf. 374, Fed. Cas. No. 1810; Mercantile Trust Co. v. Atlantic & P. R. Co., 70 Fed. 518, 525. See, also, notes collecting authorities, 50 Am. St Rep. 73S; 26 L. R. A. (N. S.) 130. Counter-claim as cross-bill in equity practice. — Baunerot v. Mc- Clure, 39 Colo. 472, 12 L. R. A. (N. S.) 126, 90 Pac. 70. All who are interested in sub- ject matter in an equitable action may be made parties by counter- claim or cross-bill. — See, McPhee V. O'Rourke, 10 Colo. 301, 3 Am. St. Rep. 579, 15 Pac. 420; Denison V. Jerome, 43 Colo. 456, 96 Pac. 166. 7 Butler V. Lawson, 72 Mo. 227. 8 Morgan v. Morgan, 10 Ga. 297; Ballance v. Underbill, 4 111. (3 Scam.) 453, 461. "No difference between a cross- bill and an original bill so far as the practice and proceedings are concerned. It is, in fact, a sep- IGO ch. IX.] PERSONAL REPRESENTATIVES. §135 ol)tain jurisdiction over tlieir persons by the service of l)rocess as in an original action, or by voluntary appear- ance, only.^ To accomplish tliis end, the names of the now })arties are inserted in the summons, and then the summons, as liius amended, is served upon them, in case thoy do not voluntarily appear.^® § 135. Where personal, representative BROUGHT IN. lu tlioso cascs iu \- hicli a party to a suit dies after service of process is complete, the substitution of his personal representative in the action is a compara- tively simple matter according to the California Code of Civil Procedure and other similar procedural codes,^ under which it is accomplished by suggesting the death of the party on the record, and an ex parte motion, on a showing of the due appointment of an administrator or the due qualification of an executor, procure to be entered on the record an order continuing the cause against such mate and distinct suit, commenced by filing the bill, which, it is true, m;ist be confined to the subject- matter of the original suit, to answer which the defendant in the cross-bill must be brought into court in the same manner as he would be in any other case." — Ballance v. Underbill, 4 111. (3 Scam.) 453, 461. 9 White V. Johnson, 27 Ore. 282, 50 Am. St. Rep. 726, 40 Pac. 511. 10 C A L.— Pico. V. Webster, 14 Cal. 202, 73 Am. Dec. 647; Powers V. Barly, 75 Cal. 237, 17 Pac. 197. GA.— Morgan V. Morgan, 10 Ga. 297. ILL.— Ballance v. Underbill, 4 111. (3 Scam.) 453; Dunphy v. Riddle, 86 111. 22; Growl v. Nagle, 86 111. 437. IND.— Fletcher v. Holmes, 25 Ind. 458. LA.— State v. Burke, 37 La. Ann. 231. MO. — Thompson v. Allen, 86 Mo. 85. N. Y.— Rigney V. Rigney, 127 N. Y. 408, 24 Am. St. Rep. 462, 28 N. E. 405; People ex rel. Rumsey v. Woods, 4 N. Y. Super. Ct. Rep. (2 Sandf.) 652, 2 Code Rep. 18; Walkinshaw v. Perzel, 30 N. Y. Super. Ct. Rep. (7 Rob.) 606, 32 How. Pr. 310; Akin V. Albany Northern R. Co., 14 How. Pr. 337; Voigt v. Schenck, 54 Hun 548, 7 N. Y. Supp. 864. N. C— McRea v. Guion, 55 N. C, (2 Jones Eq.) 129; Plemmons v. Southern Imp. Co., 108 N. C. 614, 33 S. E. 188; Bray v. Creekmore, 109 N. C. 49, 13 S. E. 729. ORE.— White V. Johnson, 27 Ore. 282, 294, 50 Am. St. Rep. 726, 732, 40 Pac. 511. FED. — Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8575. 1 Kerr's Cyc. Cal. Code Civ. Proc, §385; 1 Church's Probate Law and Practice, p. 764. I Code PI. and Pr.— 11 161 §135 CODE PLEADING AND PRACTICE. [Pt. I, personal representative, and ordering that lie be served with notice of the substitution and thus brought into court.2 A personal representative is not made a party to a pending suit by the demise of his decedent, and is not affected by such action or suit until duly and regu- larly substituted, in his representative character, in the place and stead of such deceased party.^ When the order of continuance and substitution is duly made, ser\ice of the notice of such substitution, with an order to appear and defend, gives the court jurisdiction over such per- sonal representative,* and the service of the suimnons upon him is unnecessary.^ In absence of statutory provision to bring in the per- sonal representative, resort must be had to a supple- mental complaint and a summons, in the usual method.* 2 Judson V. Love, 35 Cal. 463; Emeric v. Alvarado, 64 Cal. 529, 2 Pac. 418, 3 Pac. 105; CampbeU V. West, 93 Cal. 653, 656, 29 Pac. 219; Allen v. Walter, 10 Abb. Pr. (N. Y.) 379; Coon v. Knapp, 13 How. Pr. (N. Y.) 175; Gordon v. Sterling, 13 How. Pr. (N. Y.) 405; Lyles V. Haskell, 35 S. C. 391, 14 S. E. 829. Regular to suggest death of party to action at any stage of the proceedings in a cause, and death before appeal may be sliown by affidavit in Appellate Court. — Jud- son V. Love, 35 Cal. 463; Coffin v. Edgington, 2 Idaho 595, 596, 23 Pac. 80; Wood v. Watson, 107 N. C. 52, 55, 10 L. R. A. 541, 12 S. E. 49. Death of plaintiff during pend- ency of action, personal represen- tative may be substituted as plain- tiff by ex parte motion, and cause thereafter proceed in his name in his representative character, with- out amendment of complaint or the service of a new summons or amended complaint upon the de- fendants.— Taylor V. Western Pac. R. Co., 45 Cal. 323; Kittle v. Belle- grade, 86 Cal. 556, 25 Pac. 55; Thorpe v. Starr, 17 III. 199. 3 Judson V. Love, 35 Cal. 403; Tinkum, ex parte, 54 Cal. 201, 203 ; First Nat. Bank v. Hotchkiss, 49 Colo. 598, 114 Pac. 312. Successor of public officer not bound unless made a party. — ■ Tinkum, ex parte, 54 Cal. 201. Successor secretary corporation, not made party to suit, not bound by judgment of court, and hence not liable to punishment as for contempt for failing to obey order. — Banter v. Superior Court, 6 Cal. App. 196, 91 Pac. 750. 4 McCreery v. Ev^rding, 44 Cal. 284; Judson v. Love, 35 Cal. 463, 468; Emeric v. Alvarado, 64 Cal. 529, 596, 2 Pac. 418, 3 Pac. 105. 5 Lyles V. Haskell, 35 S. C. 391, 14 S. E. 829. 6 Mackey v. Duryea, 22 Abb. N. C. (N. Y.) 284, 6 N. Y. Supp. 162 Ch. IX.] PARTY DYING BEFORE SERVED. § 1 36 Where the party dies before service, although after issuance of the summons, or after service by publication is begTin but before it is complete,"^ a different situation arises ; and if the cause be continued against the personal representative, substituting such representative and con- tinuing the action in his name, and thereafter a summons, entitled in the original action, and directed to the de- ceased, is served on the personal representative together with a copy of the original complaint, and also wdth a copy of the order of substitution requiring and a notice to the personal representative to appear, such summons and service does not comply with a statute requiring the sunmions to contain the names of the parties f and, there- fore, fails to give the court jurisdiction of the personal representative, or to render a judgment that ^\dll bind the property.^ The original complaint, and the summons, must be amended so as to show the action against the personal representative in his representative character. § 136. 2. Direction to defendant to appear and ANSWER. The California Code of Civil Procedure further requires that the summons shall direct that the defendant appear and answer: (1) Within ten days, if the summons is served within the county in which action is brought, and (2) within thirty days, if service is made elsewhere.^ Before amendment of 1897, ~ subdivision 2 of section 407 required the summons to state, in addition to the time 573; Lyendecker V. Martin, 38 Tex. ficient, being violative of Comp. 287. Laws 1909, §§ 5593, 5645.— State 7 Reilly V. Hart, 130 N. Y. 625, Ex rel. Collins v. Parks, 34 Okla. 37 Am. St. Rep. 540, 29 N. E. 1099. 335, 126 Pac. 242. s White V. Johnson, 27 Ore. 282, Motion to quash summons for 50 Am. St. Rep. 726, 110 Pac. 511. alleged defects, does not extend 9 Id. the time specified in the summons 1 Kerr's Cyc. Cal. Code Civ. for answering. — Shinn v. Cum- Proc, §407, subd. 2. mins, 65 Cal. 98, 3 Pac. 133; Mc- In Oklahoma a summons issued Donald v. Sweet, 76 Cal. 258, 18 on March 6, returnable March 16, Pac. 324; Higley v. Pollock, 21 with notice defendant to appear Nev. 198, 27 Pac. 895. and answer March 26, held insuf- i' Stats, and Amdts. 1897, p. 53. 163 §136 CODE PLEADING AND PRACTICE. [Pt. 1, when the defendant should appear, the cause and general nature of the action.^ A like provision requiring a statement in summons of the cause and general nature of the action, is found in many of the states.^ Under such statutes it is not necessary that the cause and nature of the action be set forth with the same particularity as in the complaint ; the information is required to be general, only, the particular information being furnished by the complaint, and a substantial compliance with the require- ment is all that is essential to sufficiency.^ Such a provi- sion in the statute is to be construed with a view to carry into effect its object, and to promote justice, and not to harass or annoy litigants and courts by entertaining frivolous or technical objections not going to the sub- stantial rights of the parties.^ 3 Recovery of money and fore- closure of liens, shown by sum- mons, this was held to be suf- ficient, without showing on what property the liens were, for what, or the nature of the liens. — Bewick V. Muir, 83 Cal. 368, 373, 23 Pac. 389, 390. Since amendment of 1897 a statement of cause and nature of action not required to be inserted in summons. — Stanquist v. Heb- bard, 122 Cal. 268, 54 Pac. 841. 4 As Colo. Code, § 31, and Civil Code, §35; Mont. Code Civ. Proc, §68. 5 Bewick v. Muir, 83 Cal. 368, 373, 23 Pac. 389, 390; Behlow v. Shorb, 91 Cal. 141, 27 Pac. 546; Barndollar v. Patton, 5 Colo. 46; Higley V. Pollock, 21 Nev. 198, 27 Pac. 895; Hinzie v. Kempner, 82 Tex. 617, 18 S. W. 659; Decorvet V. Dolan, 7 Wash. 365, 35 Pac. 72, 1072. G Shinn v. Cummins, t>5 Cal. 98. 3 Pac. 133; Keybers v. McComber, 67 Cal. 399, 7 Pac. 838; Bewick v. Muir, 83 Cal. 368, 373, 23 Pac. 389. 390; Clark v. Gunn, 90 Cal. 504, 27 Pac. 375; Barndollar v. Patton, 5 Colo. 49; Kimball v. Castagino, 8 Colo. 525, 9 Pac. 488; Schuttler v King, 12 Mont. 149, 30 Pac. 25; McPherson v. First Nat. Bank, 12 Neb. 202, 10 N. W. 707; Bucklin v. Strickler, 32 Neb. 602, 49 N. W. 371; Higley v. Pollock, 21 Nev. 198, 27 Pac. 895; White v. litis, 24 Minn. 46; Warren v. Gordon, 10 Wis. 499. "Action brought to recover $726.51 evidenced by promissory note, dated December 1, 1873, which is more fully set forth in complaint, . . . together with interest and costs of this suit," sufficient. — Barndollar v. Patton, 5 Colo. 46. Action to recover money alleged to be due upon a particularly de- scribed note, and to foreclose mortgage given to secure same, a sufficient statement of general na- ture and cause of action. — Deco- 164 fh. rx.] RELIEF DEMANDED, NOTICE OP. § ];3i § 137. 3. Notice of relief to be demanded. Finally, the California Code of Civil Procedure requires that the summons shall contain a notice that, unless the defendant appears and answers, the plaintiff will (1 ) take jud^-ment for any money or damages demanded in the complaint as arising upon contract, or (2) will apply to the court for any relief demanded in the complaint.^ Other states have a similar provision requiring that the summons shall con- tain a notice of the relief demanded,- and if a money vert V. Dolan, 7 Wash. 365, 35 Pac. 72, 1072. Action to recover $150, the value of thirty tons of ice belonging to plaintiff, and taken possession of and disposed of by defendant at a named time and place, held a suf- ficient statement of nature and cause of the action. — Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456. Amount sued for stated as being due on a policy described in the complaint, together with interest from a stated date, held sufficient. —Tabor v. Gross & Phillips Mfg. Co., 11 Colo. 419, 18 Pac. 537. Cause of action stated in sum- mons, and complaint shows amount demanded, sufficient. — Higley v. Pollock, 21 Nev. 198, 27 Pac. 895. Damages in stated sum due for personal injuries in negligently operating railroad, sufficient. — Atchison, T. & S. F. R. Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512. 1 Kerr's Cyc. Cal. Code Civ. Proc. § 407, subd. 3. Action is brought to obtain judg- ment for a sum stated with legal interest, alleged to be due plain- tiff upon account and for cost of suit, reference being made to the complaint in the action, a sufficient notice as in relief demanded in an IGi action for goods sold and deliv- ered. — Behlow v. Shorb, 91 Cal. 141, 27 Pac. 546. Notice plaintiff will apply to court for relief demanded in the complaint, a copy of complaint being served in copy of summons, sufficient statement of or notice of relief demanded. — Granger v. Sheriff, 133 Cal. 416, 65 Pac. 873. "You are notified that if you fail to appear plaintiff will take judg- ment against you for the relief demanded in the complaint," suf- ficient where a copy of complaint is served with copy of summons. — Clark V. Gunn, 90 Cal. 504, 27 Pac. 375. 2 In a tort action, notice in sum- mons that plaintiff, on default, will take judgment for a sum specified therein, is fatally defective. — Atch- ison, T. & S. F. R. Co. V. Nicholls, 8 Colo. 188, 6 Pac. 512. In mechanics' lien foreclosure, summons sufficient which states relief demanded in complaint, without statement of claims of parties who afterwards intervened. — Goodale v. Coffey, 24 Ore. 346, 33 Pac. 990. Damages demanded not stated in summons, but reference is made in summons to the complaint filed in the action, which does state §138 CODE PLEADING AND PRACTICE. [Pt.I, demand tlie amount thereof.^ These statutes have all received a similar construction to the construction given subdivision 3 of section 407 of California Code of Civil Procedure. §138. DAMAGES In ACTION ON CONTRACT FOR MONEY OR In an action on a contract to recover a specified sum of money or damages, the complaint is required to state the amount of money or damages demanded,^ and the summons must contain a notice to the defendant that them, is not fatally defective under Colorado Code, § 34.— Burkhardt V. Ilaycox, 19 Colo. 339, 35 Pac. 730. "Judgment" omitted before "de- fault" in summons does not render it fatally defective, provided the language is sufficiently clear to be properly understood by the defen- dant.— Kimball V. Castagino, 8 Colo. 525, 9 Pac. 488. Notice that on default plaintiff "will apply to the court for the re- lief demanded in the complaint" in an action on a contract for the recovery of money only, instead of notifying defendant plaintiff would take judgment for a stated sum, is not fatally defective under Mont. Code Civ. Proc, §§ 68, 245.— Schuttler v. King, 12 Mont. 149, 30 Pac. 25, distinguishing Sawyer V. Robertson, 11 Mont. 416, 28 Pac. 456. "Will take judgment" unless de- fendant appears and answers, is sufficient under Idaho Rev. Stats. 1887, § 4140, subd. 5, requiring that the summons to contain a notice to defendant that unless he ap- pears and answers, plairltiff "will apply to the court" for relief de- manded in his complaint. — Har- pold v. Doyle, 16 Idaho 671, 102 Pac. 158. 1 "Will take judgment for amount demanded in the complaint," is in- sufficient in an action for conver- sion, under Mont. Code Civ. Proc, § 68. — Sawyer v. Robertson, 11 Mont. 416, 28 Pac. 456. "With interest" without a state- ment of the rate of interest does not render summons fatally defec- tive. — Kimball v. Castagino, 8 Colo. 525, 9 Pac. 488. 3 Omission to state in any way cum demanded, renders summons fatally defective. — Farris v. Wal- ter, 2 Colo. App. 450, 31 Pac. 231. If summons contains sufficient to apprise defendant clearly of amount claimed, it will not be fatally defective, even though it omits to state the sum foi- which plaintiff will take judgment on de- fault.— Miller v. Zeigler, 3 Utah 17, 23, 5 Pac. 518, 522. Where copy of complaint served with copy of summons, and the copy of the complaint stated the amount for which judgment would be asked, together with interest at a stated rate, it was held the sum- mons was sufficient. — Higley v. Pollock, 21 Nev. 198, 27 Pac. 895; Perezeau v. Spooner, 22 Nev. 88, 35 Pac. 514. 1 Kerr's Cyc. Cal. Code Civ. Proc, § 420, subd. 3. eh. IX.] ON CONTRACT FOR MONEY, ETC. § 138 the plaintiff, on default, will take judgment for tlie sum of money specified in the complaint, as for money under the contract or for damages, specif jdng the sum.^ But this applies in those cases only in which the relief de- manded is a specified sum of money as such, and when the court is not called upon to ascertain or adjudicate anything other than the existence of the alleged contract sued on, or the terms of that contract,^ — e. g. in actions for goods sold and delivered;^ for a simple money de- mand, where the plaintiif waives tort;^ for liquidated damages on breach of contract f for specific performance on breach of contract;'^ for penalty given by statute;^ a suit on an undertaking in replevin for the payment of money only,^ and the like. We have already noted that in any case in which money or damages only is demanded the complaint must state the amount of this demand in the prayer to the complaint;^*' and the relief granted the plaintiff, on default, can not exceed the sum thus nam.ed in the prayer to the complaint.^^ Should the summons 2 See Jury's Adjudicated Forms 4 Diblee v. Mason, 2 Edmon. Sel. of Pleading and Practice, vol. 2, p. Cas. 20, 1 Code Rep. 37, 6 Leg. 1804, Form No. 469. Obs. 363. In Oregon it has been held that 5 Goff v. Edgerton, 18 Abb. Pr. in an action for work and labor (n, y.) 381. done, and for the enforcement of g ^^^^ p^^.^^^ rp^^j^ oj^ Cemetery a mechanic's lien, it is sufficient j^^^^^ ^ rp^jj^,.^ S ^^^^^ pj, (p^ y ) if the notice in the summons says g^^ "that plaintiff will take Judgment ^^^^^^^ ^ ^^^^^^ ^^ ^ ^ ^^^^^^ for a certain sum specified there- in."— Willamette Falls Transp. & • ^ ' Milling Co. V. Riley, 1 Ore. 183. « People v. Bennett, 5 Abb. Pr. sTuttle V. Smith, 6 Abb. Pr. (N. Y.) 384; affirmed, 6 Abb. Pr. (N Y ) 329 14 How. Pr. 395; Peo- 343; Albany Board of Excise Com- ple V. Bennett, 6 Abb. Pr. (N. Y.) missioners v. Classon, 17 How. Pr. 343; Norton v. Cary, 14 Abb. Pr. (N. Y.) 193. (N. Y.) 364, 23 How. Pr. 469; 9 Montegriffo v. Musti, 1 Daly Luling V. Stanton. 2 Hilt. (N. Y.) (N. Y.) 77. 538, 8 Abb. Pr. 378; Cook v. Pome- lo See, ante, footnote 1, this sec- roy, 10 How. Pr. (N. Y.) 103; Cobb tion. V. Dunkin, 19 How. Pr. (N. Y.) n Kerr's Cyc. Cal. Code Civ. 164, reversing 17 How. Pr. 97. Proc, § 580. 1G7 §§139,140 CODE PLEADING AND PRACTICE. [Pt. I, fail to specify the sum for which plaintiff, on default, will take judgment, it is fatally defective, and a judgment by default has been held to be fatally defective i^^ and where no other or further notice is given to the defendant than that the plaintiff will take judgment for a specified sum, no other or further relief can be demanded by the plain- tiff than such money demand specified in the summons. ^^ § 139. In all other actions. In all other actions there shall be inserted in the summons a notice to the effect that the plaintiff will apply to the court for any other relief demanded in the complaint.^ The notice in the summons should, however, contain a reference to the complaint.^ § 140. '■ In ACTIONS IN EJECTMENT. A SUni- mons in a proceedings in ejectment, should contain a de- scription of the premises involved in the suit.^ We have already seen that a defect in a summons may be cured by the copy of the complaint served with the copy of the sum- mons, where the copy of the complaint served contains the matter which should have been, but was not, incor- porated in the summons.- Hence, in ejectment, if the summons contains no description of the demanded prem- ises, other than a reference to the complaint for such description, and two or more of the defendants reside in 12 state V. Woodlief, 2 Cal. 241; Mont. 495, 498-9; Sawyer v. Rob- Porter V. Herman, 8 Cal. 619, 625; ertson, 11 Mont. 416, 421, 28 Pac. Keybers v. McComber, 67 Cal. 395, 456; Schuttler v. King, 12 Mont. 398, 7 Pac. 838; Atchison, T. & 149, 156, 160, 30 Pac. 25; Sharman S. F. R. Co. V. Nicholls, 8 Colo. v. Huot, 20 Mont. 555, 557, 63 Am. 3 88, 191, 6 Pac. 512; Dyas v. Kea- St. Rep. 645, 52 Pac. 558. ton, 3 Mont. 495, 499. i:: Potter v. Herman, 8 Cal. 619, Mandatory provision of statute 625. requiring summons to notify de- i Kerr's Cyc. Cal. Code Civ. fendant of amount for which plain- Proc, § 407, subd. 3. tiff, on default, will take judgment, -' Foster v. Wood, 1 Abb. Pr. and a failure to include in sum- N. S. (N. Y.) 150, 30 How. Pr. 284. mons such notice defeats jurisdic- i Kerr's Cyc. Cal. Code Civ. tion of court to render a default Proc, § 750. judgment. — Dyas v. Keaton, 3 -' See, ante, § 125. 1G8 ill. IX.] ACTIONS FOR SPECIFIC RELIEF. § 141 the same county, and a copy of the summons is served on all the defendants in that county, but a copy of the com- plaint is served on one of such defendants, only, the sum- mons is insufficient to sustain a judgment by default against those defendants not served with a copy of the complaint, as a copy of the complaint together with a copy of the summons must be served on all the defend- ants,^ the reference in the summons to the complaint for the description of the demanded premises makes the com- plaint a part of the summons for the purpose of describ- ing the premises,'* and if the copy of the complaint be not served a complete and a sufficient summons is not served, and the court acquires no jurisdiction to render a default judgment as against those defendants upon whom no copy of the complaint was served. § 141. In actions for specific relief. In all cases in which the complaint demands specific relief, the summons should notify the defendant that, on de- fault, the plaintiff Avill apply to the court for the relief demanded in the complaint. A summons for relief is the proper form in an action in which a part of the relief sought is unliquidated damages,^ as in an action for the breach of an agreement to carry on business ;- for breach of agreement to convey real property f in any action on undertaldng of bail ;"* on a constable's bond y' in an action 3 Kerr's Cyc. Cal. Code Civ. bell, 31 Cal. 239; Houston v. Pike Proc, § 410. Road Co., 45 Cal. 550. 4 See, ante, § 125. As to necessity of jury to com- 1 Hartman v. Williams, 4 Cal. pute damages on default judgment, 254; .Johnson v. Vance, 86 Cal. 110, see note 20 L, R. A. (N. S.) 7. 114, 24 Pac. 862. li Tuttle v. Smith, 6 Abb. Pr. "No issue as to tlie damages al- (N. Y.) 329, 14 How. Pr. 395. leged to have been sustained by 3 Johnson v. Paul, 14 How. Pr. the plaintiff, no proof upon the (N. Y.) 454, 6 Abb. Pr. 335, note, subject was therefore required." — 4 Kelsey v. Covert, 15 How. Pr. Johnson v. Vance, 86 Cal. 110, 114, (N. Y.) 92, 6 Abb. Pr. 336, note; 24 Pac. 862, citing Hartman v. Levy v. Nicholas, 15 Abb. Pr. Williams, 4 Cal. 254; Patterson v. (N. Y.) 63, note. Ely, 19 Cal. 29; Dimick v. Camp- r, New York, City of, v. Lyons, 169 §141 CODE PLEADING AND PRACTICE, [Pt. r, for breach of warranty;*' in actions for conversion;^ in actions for an account of moneys collected.^ Where an allegation of a mistake on a former accounting, and a demand for a new accounting, is contained in the com- plaint, the summons is properly for relief f also in an ac- tion against a carrier for loss of goods ;^'^ or for breach of contract to transport goods ;^^ for unliquidated damages generally;^- for liquidated and unliquidated damages. ^■'^ In actions for fraud, the summons must apprise the de- fendant that on failure to answer judgment will be taken against him for the fraud; a mere notice that a money judgment will be taken against him will not support a judgTQeut for fraud, ^^ or to open an account on the ground of mistake ;^^ as for damages for death by a wrongful act;^^ or on breach of contract to convey;^' or for breach of contract to marry.^* 1 Daly (N. Y.) 296, 24 How. Pr. 280. 6 Dunn V. Bloomingdale, 14 How. Pr. (N. Y.) 474, 6 Abb. Pr. 340, note. 7 Voorhies v. Scofield, 7 How. Pr. (N. Y.) 51; Ridder v. Whitlock, 12 How. Pr. (N. Y.) 208. . s West V. Brewster, 8 N. Y. Super. Ct. Rep. (1 Duer) 647, 11 Leg. Obs. 157. 9 McDougall V. Cooper, 31 N. Y. 498. 10 Campbell v. Perkins, 4 Seld. (N. Y.) 438; Hewitt v. Howell, 8 How. Pr. (N. Y.) 346. 11 Luling V, Stanton, 2 Hilt. (N. Y.) 538, 8 Abb. Pr. 378. iii Croden v. Drew, 10 N. Y. Super. Ct. Rep. (3 Duer) 652, 654; Luling V. Stanton, 2 Hilt. (N. Y.) 538, 8 Abb. Pr. 378; People v. Ben- nett, 6 Abb. Pr. (N. Y.) 343; Salters v. Ralph, 15 Abb. Pr. (N. Y.) 273; Cobb v. Dukin, 19 1 How. Pr. (N. Y.) 164, reversing 17 How. Pr. 97. 13 Norton v. Cary, 14 Abb. Pr. (N. Y.) 364, 23 How. Pr. 469; Hartshorn v. Newman, 15 Abb. Pr. (N. Y.) 63; Hanson v. Decker, 29 How. Pr. (N. Y.) 385. 14 Porter v. Herman, 8 Cal. 619. See Southern R. Co. v. Bunt, 131 Ala. 596, 32 So. 509; Hartshorn v. Newman, 15 Abb. Pr. (N. Y.) 63; Field V. Morse, 7 How. Pr. (N. Y.) 12; Travis v. Tobias, 7 How. Pr. (N. Y.) 90. 15 McDougall v. Cooper, 31 N. Y. 498. 10 Doedt v. Wiswell, 15 How. Pr. (N. Y.) 128; affirmed, 15 How. Pr. 145. 17 Johnson v. Paul, 6 Abb. Pr. (N. Y.) 335, note, 14 How. Pr. 454; 18 McDonald v. Walsh, 5 Abb. Pr. (N. Y.) 68; Davis v. Bates. 6 Abb. Pr. (N. Y.) 15; McNeff v. Short, 14 How. Pr. (n! Y.) 463. 70 ell. IX.] alte;:xati\l: ok vvkuxg relief. § 142 § 142. Alternative relief — Wrong re- lief. The wording of subdivision 3 of section 407, given above/ may be misleading to some in that it does not state as fully and distinctly as it could have done — clarity be- ing sacrificed to brevity — that the summons is to give notice of one of two things therein provided, and not of both; that is to say, that the summons shall notify the de- fendant specifically which of the two forms of relief is de- manded, and that it shall not include a notice, in the alter- native, of both reliefs provided for. The matter has been carried to the Supreme Court on different angles, and has there been decided, and very properly decided, tluit the notice given the defendant need not be in the alterna- tive in order to comply with the requirement of the code, it being sufficient to notify the defendant simply that the plaintiff 'Svill apply to the court for the r(!lief demanded in the complaint" where the action is other than one on a contract demanding simply a specified sum of money or damages.^ But it has also been decided — without such cogent reasoning — that a summons is not insufficient because it contains a notice to the defendant, in the alter- native, including both reliefs provided for in the statute, without specifying which one plaintiff will resort to.^ In states having substantially the same provision as to the notice to be given the defendant by the summons, as that found in the California statute, it has been held that it is not a fatal defect where the summons gives the defendant notice of the wrong alternative relief, in that the com- plaint is on a contract for a specified sum of money or damages, and the summons notifies defendant that the plaintiff ''will apply to the court for the relief demanded in the complaint."^ This rule can work no hardship in 1 See, ante, § 137. 4 Schuttler v. King, 12 Mont. 149, 2 Granger v. Sheriff, 133 Cal. 416, 30 Pac. 25, distinguishing Sawyer 65 Pac. 873. v. Robertson, 11 Mont. 416, 28 Pac. 3 Stanquist v. Hebbard, 122 Cal. 456. 268, 54 Pac. 841. 171 §143 CODE PLEADING AND PRACTICE. [Ft. 1, those cases and jurisdictions in which a copy of the com- plaint is served with, a copy of the summons f but in those cases and jurisdictions in which no copy of the complaint is served, or the summons is served before the complaint is filed — as is the case in some of the jurisdictions having the reformed procedure — it is essential that the summons state with precision and particularity the nature of the relief that will be demanded of the court, and a mistake in the particularization of that relief, it has been held, renders the summons fatally defective.'' § 143. Amending summons. We have already seen that a defective summons may be cured by the serving of a copy of the complaint, where the complaint contains the 5 "It is necessarily wholly imma- terial, and can not, in the nature of things, affect a substantial right of the defendant, whether a sum- mons is under the first or second subdivision of Section 129" of the New York Code of Procedure, "when a copy of the complaint . . . is served with the sum- mons. The office of the summons is to bring the defendant into court and to give the court jurisdic- tion of the person. . . This is the effective process to subject the defendant to the jurisdiction of the court. The subsequent section, — section 129, — directs the insertion of a notice in the summons, in ac- tions on contract for the recove''y of money only, that judgm.ent will be taken for a specified sum on failure of the defendant to answer; and, in other actions, that applica- tion will be made to the court for the relief demanded. . • . . The purpose of the notice required by section 129 is to inform the defen- dant of the character of the action and the consequences of a default. that he may understandingly de- termine whether the protection and preservation of his rights call for an appearance and answer. But, if the complaint is served with the summons, the defendant has more full and perfect knowl- edge of the cause of action and the consequences of a default than he could get from the summons alone, and, if there is an error or defect in the summons, it carries with it the remedy and corrections and an effectual preventive against error by any one." — Allen, J., in Mc- Coun V. New York C. «& H. River R. Co., 50 N. Y. 176, dismissing appeal from 7 Lans. 75. See First Nat. Bank of Joseph v. Rusk, 64 Ore. 35, 44 L. R, A. (N. S.) 138, 129 Pac. 121. Respecting notice of manner of obtaining judgment, see note 44 L. R. A. (N. S.) 142. Brown v. Eaton, 37 How. Pr. (N. Y.) 325. As to notice regarding manner of obtaining Judgment, see 44 L. R. A, (N. S.) 142. 172 ch. IX.] AMENDMENT OF SUMMONS. §143 matters whicli should have been, but were not, incorpo rated into the summons.^ It remains but to add here that every court has inherent power to amend and control its processes, orders and proceedings, so as to make them conformable to law and justice;- provided, only, that there shall be a process, order or proceedings to be amended. In other words, any voidable process, order or proceedings may be amended,^ but a process, order or proceeding which is void, may not be amended.* That is to say, there must be something to amend and amend by."* 1 See, ante, § 125. 2 See Kerr's Cyc. Cal. Code Civ. Proc, § 128, par. 8. Full power to amend process pending its service. — Baldwin v. Foster, 157 Cal. 643, 647, 108 Pac. 714. — Order for amendment pre- sumed wliere nothing to the con- trary is shown, the record being silent regarding such an order. — Dowling V. Comerford, 99 Cal. 204, 33 Pac. 853; Baldwin v. Foster, 157 Cal. 643, 647, 108 Pac. 714. Has control over its process, and should permit amendment in the interest of justice, especially when the party complaining can show no injury resulting from such amend- ment. — Marvin v. Eng-Skell Co., 33 Cal. App. 42, 164 Pac. 334. As to amending process, see notes 52 Am. St, Rep. 608, 63 Am. St. Rep. 649, 71 Am. St. Rep. 242, 72 Am. St. Rep. 935. 3 Durham v. Heaton, 28 111. 264, 81 Am. Dec. 275; State v. Hall, 78 Me. 37, 2 Atl. 546; Bobb v. Dillon, 20 Mo. App. 309; Parker v. Barker, 43 N. H. 35, 80 Am. Dec. 130; Coyle Mercantile Co. v. Nix, 7 Okla. 267, 54 Pac. 469; Starkey v. Lunz, 57 Ore. 151, Ann. Cas. 1912D, 783, 110 Pac. 702; Miller v. Zeigler, 44 W. Va. 484, 67 Am. St. Rep. 777, 29 S. E. 981. Defective affidavit in attachment may be amended. — Coyle Mercan- tile Co. v. Nix, 7 Okla. 267, 54 Pac. 469. Erroneous execution may be amended. — Bobb v. Dillon, 20 Mo. App. 309. Even after sale. — Lewis v. Lind- ley, 28 111. 147; Mooney v. Mor- iarty, 36 111. App. 175; Kipp v. Bur- ton, 29 Mont. 96, 101 Am. St. Rep. 544, 63 L. R. A. 325, 74 Pac. 85. 4 Choate v. Spencer, 13 Mont. 127, 40 Am. St. Rep. 425, 20 L. R. A. 424, 32 Pac. 651; Sharman v. Huot, 20 Mont. 555, 63 Am. St. Rep. 645, 52 Pac. 558; Farrell, In re, 36 Mont. 262, 92 Pac. 785; White v. Taylor. 46 Tex. Civ. App. 473. 102 S. W. 747; Coda v. Thompson, 39 W. Va. 67, 19 S. E. 548; Goodman v. Henry, 42 W. Va. 526, 35 L. R. A. 847, 26 S. E. 528. Void attachment may not be amended. — Goodman v. Henry, 42 W. Va. 526, 35 L. R. A. 847. 26 S. E. 528. 5 Witherell v. Randall, 30 Me. 168; .Joiner v. Delta Bank, 71 Miss. 382, 14 So. 464; Sharman v. Huot, 20 Mont. 555, 63 Am. St. Rep. 645, 73 §143 CODE PLEADING AND PRACTICE. [Pt. i, The court may allow the summons to be amended by in- serting a notice to the defendant of the nature of the demand, and that unless he appear and answer within the time specified, judgment by default will be taken against him.'' But amendments can only be made by order of the court upon motion." Sheriffs have no right, after making a return, to amend it so as to affect rights which have already vested in third parties.^ But courts should exer- cise great liberality in allowing sheriffs to amend so as to make returns conform to facts, and to correct errors and mistakes,^ even after sheriff has gone out of office.^" In North Dakota, el summons, otherwise in due form, in which the defendants are designated by their firm name only, is irregular, but not absolutely void, and may be 52 Pac. 558; United States v. Tur- ner, 50 Fed. 734. 6 Pollock V. Hunt, 2 Cal. 194; Pierse v. Miles, 5 Mont. 549, 552, 6 Pac. 347; Sweeney v. Schultes, 19 Nev. 53, 56, 6 Pac. 44, 8 Pac. 768. Amendment of summons to con- form to law, is always permissible. — Pierse v. Miles, 5 Mont. 549, 552, 6 Pac. 347. T McCrane v. Moulton, 5 N. Y. Super. Ct. Rep. (3 Sandf.) 736, 1 Code Rep. N. S. 157; Allen v. Allen, 14 How. Pr. (N. Y.) 248. "Courts have power to amend their process and records, notwith- standing such amendment may af- fect existing rights."— Green v. Cole, 35 N. C. (13 Ired. L.) 425, quoted approvingly in Tilton v. Cofield, 93 U. S. 163, 169, 23 L. Ed. 858, 859. Officer's return may be amended to correspond with the facts, in affirmance of judgment, but never to defeat the judgment— Chicago Planing Mill Co. v. Merchants' Nat. Bank, 97 111. 294; Montgomery v. Merrill, 36 Mich. 97; Dunham v. Wilfong, 69 Mo. 355; Mills v. How- land, 2 N. D. 30, 49 N. W. 413. s Newhall v. Provost, 6 Cal. 85, 87; Webster v. Haworth, 8 Cal. 20, 25, 68 Am. Dec. 287; McGarth v. Wallace, 116 Cal. 548, 553, 48 Pac. 719; Chicago Planing Mill Co. v. Merchants' Nat. Bank, 97 111. 294, 300; Stewart v. Stringer, 45 Mo. 116; Renick v. Ludington, 20 W. Va. 511; French v. Edwards, 5 Sawy. 266, 274, Fed. Cas. No. 5098: Rickards v. Ladd, 6 Sawy. 40, Fed. Cas. No. 11804. As to effect of amendment to return of writ, see note 13 Am. Dec. 180. Gavitt v. Doub, 23 Cal. 78, 79, 81, 82, affirming Borland v. O'Neal, 22 Cal. 504; People v. Goldenson, 76 Cal. 328, 345, 19 Pac. 161; Irons V. Keystone Mfg. Co., 61 Iowa 406, 408, 16 N. W. 349; Richards v. Ladd, 6 Sawy. 40, 46, Fed. Cas. No. 11804. 10 Pacific Tel. Cable Co. v. Fleischner. 66 Fed. 899, 905. 174 ch. IX.] AMENDMENT OF SUMMONS. § 143 amended in the trial, court so as to show the names of the partners, and such a summons, when issued, is sufficient to sustain an attachment. ^^ In IdaJiop the trial court may order a defective sum- mons so amended as to conform to the requirements of the statute and, after so amending, may order the sum- mons withdrawn from the files and served.^^ 11 Gans V. Beasley, 4 N. D. 140, Idaho 472, 125 Am. St. Rep. 175, 94 59 N. W. 714. Pac. 827; Empire Mill Co. v. Dis- 12 Idaho Revised Codes, § 3862. Irict Court, 27 Idaho 383, 149 Pac. isRideubaugh v. Sandlin, 14 499. 175 CHAPTER X. PROCEEDINGS TO OBTAIN JURISDICTION SERVICE OF PROCESS. 1. Introductory. § 144. In general. § 145. Identity of name and person. § 146. False name. § 147. Fictitious name. § 148. "Personal service" defined. § 149. ' ' Duly served, ' ' meaning of. § 150. Service actual performance — Keservice. 2. Authority or Capacity to Serve. § 151. In general. § 152. By sheriff — In general. § 153. By his deputy. § 154. Effect of : Return. § 155_ Sufficiency of return— Several defendants. § 156^ False return— Effect of. § 157. "Law of the land": "Due process of law." §158, Relief from false return— 1. In gen- eral : Kentucky statute. § 159. 2. Motion to vacate judgment. §160. 3. Suit in equity to vacate or enjoin. §161 Conditions precedent to relief. § 162. 4. Action against sheriff on bond. §163. Loss of right. § 164. By person other than sheriff— Affidavit of service. § 165. Amendment of affidavit. 3. Upon Whom Service to Be Made. § 166. In general. § 167. Domestic corporation. § 168. Construction of statute — Instances. J. '6 ell. X,] SERVICE OF PROCESS. § 169. Foreign corporation. § 170. Construction of statute — Instances. § 171. ' ' Managing agent. ' ' § 172. Foreign corporation not in business within state — Officer or agent casually within state. § 173. Municipal corporation. § 174. Infant or minor under fourteen years of age, § 175. Action by father against. § 176. Insane or otherwise incompetent person. § 177. Joint association. § 178. Joint and several debtors. § 179. Executor or administrator. § 180. Nonresident defendant. 4. ]\roDE OP Service of Process and Sufficiency Thereof, § 181. In general. § 182. Personal service — In general. § 183. How made — By delivery. § 184. By reading. §185. By telegraph. § 186. Out of jurisdiction. § 187. Constructive or substituted service — In general. § 188. 1. By leaving copy — Kansas. §189. Oregon. §190. Utah. §191. Washington. § 192. 2. By mail, registered or otherwise. § 193. 3. By publication — In general. § 194. In California — In general. § 195. Affidavit for order of publication — Necessity for. § 196. General requisites of. § 197. Must state probative, not ulti- mate facts. § 198. On infant or minor. §199. Order of publication — What to con- tain. § 200. Change in summons not permis- sible. § 201. Depositing in post-office. I Code PI. and Pr.— 12 ^77 §144 CODE PLEADING AND PRACTICE. (Pt. I, §202. §203. §204. §205. §206. Affidavit of depositing in mail. Affidavit of publication — By whom to be made. Publication sufficient when. Publication conclusive when. Time within w^hieh to appear after publication. Copies 5. Time and Place op Service op Summons. § 207. Time of service — In general. § 208. In California. §209. On Sunday. § 210. Place of service — California doctrine. 6. Serving Copy op Complaint Instead op Process; wiTPi Process. § 211. Serving complaint instead of process. § 212. Serving copy of complaint with process. 7. Service Procured by Fraud. § 213. In general. 1. Introductory. § 144. In general. In California/ Utah,^ and perhaps olsewliere, a summons must be issued within a year from the date on which the complaint was filed. After the summons has been issued by the clerk, the next step, in California, is to have it served on the defendant, together with a copy of the complaint;^ and if this service is not had within a year from the date of the filing of the com- plaint, the clerk loses the power to issue an alias^ sum- mons f but the court may, at any time within three years, 1 Kerr's Cyc. Cal. Code Civ. Proc, § 581a, Consol. Supp. 1906- 1913, p. 1525. 2 Utah Comp. Laws, 1888, § 3203. 3 Kerr's Cyc. Cal. Code Civ. Proc, § 410. Colorado practice, under stat- ute 1885, did not require service of copy of complaint unless demanded by defendant; and when demanded, service thereof essen- tial to set in running time within which answer must be filed. — Gwil- lim V. First Nat. Bank, 13 Colo. 278, 22 Pac. 458. 4 As to alias and pluris sum- monses, see, ante, § 126. 5 Kerr's Cyc. Cal, Code Civ. Proc, § 408. eh. X.] SERVICE OF PROCESS, GENERALLY. §1-14 order the returned summons to be served, or direct the issuance of a new summons for that purpose.^ But tliis large latitude as to time is a matter of due diligence on the part of the plaintiff to obtain service" and of a sound judicial discretion on the part of the court to promote tlio ends of justice, subject to reversal for an abuse of that discretion.^ The power of the trial or nisi prius court to dismiss a cause for failure to prosecute by neglecting unreasonably to procure a service of the summons upon the defendant, is established by an unbroken line of de- cisions in this state ;^ but where the delay hr.s been at the Dupuy V. Shear, 29 Cal. 238, 242; Reynolds v. Page, 35 Cal. 296, 79 U44 CODE PLEADING AND PRACTICE. [Pt. I. instance or request of the defendant, the court properly refuses a dismissal.^" Thus, it has been held that allowing an action to rest without serving the summons for one year,^^ one year and six months,^- one year and nine months, ^^ one year and eleven months, ^^ two years, ^^ two years and two months,^*' two years and three months — with knowledge of w^hereabouts of defendant,^' two years and eight months, ^'^ three years^*^ and more-", eight years — though lost,-^ and nine years,-- after summons is issued, is such want of diligence as justifies a court in dis- missing the action. Where notice of motion is given of a motion to dismiss an action for want of prosecution before summons is served, and the plaintiff then serv^es the summons, and at the end of ten days takes a default, but judgment is not entered up, the entry of the default 300 (Rhodes, J., dissenting) ; Grigs- by V. Napa County, 36 Cal. 585, 95 Am. Dec. 213; Carpentier v. Min- turn, 39 Cal. 450; Eldridge v. Kay, 45 Cal. 49, 51; Lauder v. Fleming, 47 Cal. 614, 616; Diggins v. Thorn- ton, 96 Cal. 417, 31 Pac. 289; Kreiss V. Hotaling, 99 Cal. 383, 385, 33 Pac. 1125; Castro v. San Francisco, City of, 4 Cal. Unrep. 500, 35 Pac. 1035; First Nat. Bank v. Nason, 115 Cal. 626, 628, 47 Pac. 595; W^it- ter V. Phelps, 163 Cal. 655, 656, 126 Pac. 593; Mori v. Mori, 171 Cal. 79, 151 Pac. 1136; Wilson v. Leo, 19 Cal. App. 793, 796, 127 Pac. 1043. to Cowell V. Stewart, 69 Cal. 525, 11 Pac. 57; First Nat. Bank v. Nason, 115 Cal. 626, 628, 47 Pac. 595. 11 Reynolds v. Page, 35 Cal. 296, 300 (Rhodes. J., dissenting), and distinguishing Dupiiy v. Shear, 29 Cal. 238. 12 First Nat. Bank v. Nason, 115 Cal. 626, 628, 47 Pac. 595. 13 Mori V. Mori, 171 Cal. 79, 151 Pac. 1136. Discretion not abused in re- fusing to dismiss. — McDonald v. Sweet, 76 Cal. 257, 18 Pac. 324. 14 Kreiss v. Hotaling, 99 Cal. 383, 385, 33 Pac. 1125. 15 Grigs by v. Napa County, 36 Cal. 585, 95 Am. Dec. 213; Castro V. San Francisco, City of, 4 Cal. Unrep. 500, 35 Pac. 1035. 16 Lander v. Fleming, 47 Cal. 614, 616. 17 Witter V. Phelps, 163 Cal. 655, 656, 126 Pac. 593. isGrigsby v. Napa County, 36 Cal. 585, 95 Am. Dec. 213. 19 Eldridge v. Kay, 45 Cal. 49, 51. 20 Wilson V. Leo, 19 Cal. App. 793, 796, 127 Pac. 1043. 21 Carpentier v. Minturn, 39 Cal. 450. 22 Dupuy V. Shear. 29 Cal. 238, 242; Diggins v. Thornton, 96 Cal. 417, 31 Pac. 289. ]80 ell. X.] IDENTITY OF NAME AND PERSON. § 145 does not preclude the court from dismissing the action, the dismissal taking effect by relation back to the time of the service of the motion.-^ The California Code of Civil Procedure-^ and most of the procedural codes provide that when the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plain- tiff may proceed against the defendants served in the same manner as if they were the only defendants.--^ When there are more than one defendant in an action and one or more admit-" "due service" of summons in an action against them and others, the court thereby acquired juris- diction of them, and, as to them, any judgment rendered in the cause will be valid,-' if otherwise regular and sufficient. § 145. Identity of name and person. Identity of name raises presumption of identity of person, even in a com- munity in which there are several persons of the same name; hence it follows that when a summons is served upon a person bearing the same name, or substantially the same name,^ as the name of the defendant in the com- plaint and summons, the party thus served is put under the legal duty of coming into court and entering a plea in abatement on the ground of mistaken identity, or of pleading to the merits and establishing the fact that he is not the person intended by the complaint and summons, and that he is under no obligation to the plaintiff on the cause of action set out in the complaint; otherwise he 23 Grigsby v. Napa County, 36 iSummons against "John Cal. 585, 95 Am. Dec. 213. Lynch," served upon 'Mohn M. 24 Kerr's Cyc. Cal. Code Civ. Lynch." — Iceland v. Johnson, 77 Proc, §§ 414, 579. Minn. 543, 77 Am. St. Rep. 698, 80 2r, See Edwards v. Ilellings, 103 N. W. 700. Cal. 204, 37 Pac. 218. Or against "Manuel S. de 26 As to admission of service, Brum," served on "M. S. Brum." — see, post, §§ 242 et seq. Brum v. Ivins, 154 Cal. 17, 129 2T Sharp V. Brunnings, 35 Cal. Am. St. Rep. 137, 96 Pac. 876. r,28. 181 §146 CODE PLEADING AND PRACTICE. [Pt. I, will be bound by any judgment that the court may render in the cause, until the same is regularly vacated or set aside,2 on the theory that the judgment ''necessarily establishes the right of the plaintiff to the relief against the person served."^ § 146. False name. Where the defendant is given a false name in the complaint and summons served upon him, the person served is placed under the legal obligation to appear and enter a plea in abatement on the groimd of misnomer ;^ and on his failure to do so, or on his an- swering to the merits without objection to such false name, the error will be deemed waived, the party served will be concluded, and be bound by any judgment ren- dered by the court against him in the cause under such false name.2 2 Brum V. Ivins, 154 Cal. 17, 129 Am. St. Rep. 137, 96 Pac. 876; Ueland v. Johnson, 77 Minn. 543, 77 Am. St. Rep. 698, 80 N. W. 700; Foshier v. Narver, 24 Ore. 441, 41 Am. St. Rep. 874, 34 Pac. 21. 3 Id.; Van Fleet on Collateral Attack, § 367. 1 El Capitan Land & Cattle Co. V. Lees, 13 N. M. 407, 412, 86 Pac. 924, 927; Lafayette Ins. Co. v. French, 59 U. S. (18 How.) 404, 15 L. Ed. 451. "George" for "Georgie." — Kav- anagh v. Hamilton, 53 Colo. 157, 167, Ann. Gas. 1914B, 76, 125 Pac. 517. "Guilfuss" for G e i I f u s s." — Grannis v. Ordean, 234 U. S. 395, 58 L. Ed. 1369, 34 Sup. Ct. Rep. 779. "Hafiey-Colman Co." for"Halfey- Coleman Co.," in constructive ser- vice of attachment against a foreign corporation, held insuf- ficient in Yarbrough v. Pugh, 63 Wash. 143, 33 L. R. A. (N. S.) 351, 14 Pac. 919. 2 COLO.— Burlington & M. R. Co. V. Burch, 17 Colo. App. 491, 497, 69 Pac. 7. ILL. — Pond v. Ennis, 69 111. 341, 345, 347. IND.— Bloom- field R. Co. V. Burress, 82 Ind. 84; Vogel V. Brown Township, 112 Ind. 300, 2 Am. St. Rep. 188, 14 N. E. 78. IOWA— Wilson v. Baker, 52 Iowa 427, 3 N. W. 485. KAN.— Hoffield V. Board of Education, 33 Kan. 648, 7 Pac. 218. KY.— Heck- man V. Louisville & N. R. Co., 85 Ky. 637, 4 S. W. 344. MD.— First Nat. Bank v. Jaggers, 31 Md. 47, 100 Am. Dec. 54. MISS. — Alabama & V. R. Co. V. Bolding, 69 Miss. 263, 30 Am. St. Rep. 544, 13 So. 846. S. C. — ^Waldrop v. Leonard, 22 S. C. 125. TEX.— McGhee v. Romatka, 92 Tex. 43, 45 S. W. 554; McGhee v. Romatka, 18 Tex. Civ. App.' 136, 47 S. W. 293. FED.— Lafayette Ins. Co. v. French, 59 U. S. (18 How.) 404, 15 L. Ed. 451. 182 Ch. X.] DEFINITION OF PERSONAL SERVICE. §§ 147, 148 § 147. Fictitious name. Where a defendant is sued in a fictitious name,^ and copies of the summons and com- plaint served upon him in such fictitious name, even though his true name resembles in no respect such ficti- tious name, the person thus served is under the legal duty to appear and plead in abatement a misnomer, or mis- taken identity, or to answer to the merits ; othei-^vise the person thus served will be bound by any judgment the court may render against him in such fictitious name.- In a. subsequent suit thereon the party relying upon the judgment must show that the party served was the party against whom he is seeking to enforce the judgment,^ and evidence is admissible to show that the name under which suit was brought was erroneous or fictitious.^ § 148. ' * Personal service ' ' defined. The phrase * ' per- sonal service, ' ' as applied to the sei^ice of a summons or other court writ, has a fixed and definite meaning in law — in the absence of any legislative enactment giving it a different significance — means service of the process by actual delivery to the defendant personally^ and not to a proxy,2 and does not include service by leaving a copy of the summons and complaint at the last and usual place of 1 As to suing in fictitious name, 386, 388; Holiness Church of San see, ante, § 132. Jose v. Metropolitan Church As- 2 See: Guinard v. Heysinger, 15 soc, 12 Cal. App. 445, 107 Pac. 111. 288; Bloomfield R. Co. v. Bur- 633; McKenna v. State Ins. Co.. ress, 82 Ind. 83; Fo shier v. 73 Iowa 453, 35 N. W. 519; Thisler Narver, 24 Ore. 441, 41 Am. St. v. Little, 86 Kan. 787, 121 Pac. Rep, 874, 34 Pac. 21; Lafayette 1T23; Bogart v. Swezey, 26 Hun Ins. Co. V. French, 59 U. S. (18 (N. Y.) 463, 464; Rhode Island How.) 404, 15 L. Ed. 451. Hospital Trust Co. v. Keeney, 1 See, also, Freeman on Judg- N. D. 411, 48 N. W. 341; First Nat. ments (4th ed.), § 50a; Van Fleet Bank v. Holmes, 12 N. D. 38. 94 on Collateral Attack, § 356. N. W. 764; Moyer v. Cook, 12 3 Brum V. Ivins, 154 Cal. 17, 20, Wis. 335, 336; Risteen, In re. 122 129 Am. St. Rep. 137, 96 Pac. 876. Fed. 732, 733. 4 Lafayette Ins. Co. v. French, 2 Thisler v. Little, 86 Kan. 787. C9 U. S. (18 How.) 404, 15 L. Ed. 121 Pac. 1123; First Nat. Bank v. 451. Holmes, 12 N. D. 38, 94 x\. W. 1 Edmonson v. Mason, 16 Cal. 764. 183 §§ 149, 150 CODE PLEADING AND PRACTICE. [Ft. I, abode, or at the regular place of business, of the person sought to be served.^ § 149. ' ' Duly served, ' ' meaning of. The phrase * ' duly served," as applied to a summoiis, and means personal notice^ in the manner described by law in every particu- lar,- requiring him to appear in the court of the county in which the action is pending." Thus, the service of a summons to appear in the Superior Court or other court of A county, is not the service of ''due process" to ap- pear in the same court of B county.* § 150. Service actual, performance — Reservice. The service of a summons is an actual performance, and where there is no performance in the manner required by law, from whatever cause, there is no service.^ Conversely, if the service of a copy 6f the summons and of the com- plaint has been made as required by law, the fact that the plaintiff procures a reservice or second ser\dce to be made, is not so far an invalidation of, or waiver of, the first service as to allow parties to the suit, and third parties, to treat the first service as a nullity.- Where a summons was served upon a defendant out of the district and subsequently served upon him within the district, for the purpose of shortening the time within which he was required to appear and plead, the second service was held to be an absolute nullitv.^ :i Moyer v. Cook, 12 Wis. 335, 336; Risteen, In re, 122 Fed. 732, 733. 1 See, ante, §148; Kirk v. United States, 124 Fed. 324, 337. 2 Trullenger v. Todd, 5 Ore. 36; White V. Johnson, 27 Ore. "282, 50 Am. St. Rep. 726, 40 Pac. 511. :i White v. Johnson, 27 Ore. 282, 50 Am. St. Rep. 726, 40 Pac. 511. 4 Trullenger v. Todd, 5 Ore. 36. 1 Labette County v. Franklin, 16 Kan. 450. 2 Townsend v. Parker, 21 Cal. App. 317, 131 Pac. 766; Dresser V. Wood, 15 Kan. 344; Caples v. Central Pac. R. Co., 6 Nev. 265; Russell & Co. V. Millett, 20 Wash. 212, 55 Pac. 44. 3 Mayenbaum v. Murphy, 5 Nev. 383. See, Townsend v. Parker, 21 Cal. App, 317, 131 Pac. 766. 184 eh. X.] AUTHORITY, ETC., TO SERVE. § 151 2. Authority or Capacity to Serve. % 151. In general. In California, a summons may be served by the sheriff of the county in which the defendant is found, or by any other person over the age of eighteen years, who is not a party to the action.^ Substantially similar provisions are found in Arizona,- Colorado," Kan- sas,^ Oklahoma,-^ and Washington.*' Under such a statu- tory provision service of the summons can not be made by the plaintiff in the action,' or by his attorney."* The service of a summons by a person not a sheriff is ''accord- ing to the course of the common law."-' When the sum- mons is served by the sheriff, it must be returned with his certificate of service, and of the service of a copy of the complaint where such copy is served, to the office of the clerk from which it issued. ^° AVliere the service is by a deputy of the sheriff, or by a person acting as such, the return must show that the act was done, and the return itself must be, in the name and by the authority of the sheriff, because the act and return of a deputy sheriff" in his o^^^l name is a mere nullity; the act of the deputy must be in the name and by the authority of the sher- iff" — and according to some decisions, the return of the 1 Kerr's Cyc. Cal. Code Civ. 7 Toenniges v. Drake, 7 Colo. Proc, § 410. 471, 4 Pac. 790. 2 Lewis V. Cunningham, 10 Ariz. s Nelson v. Chittenden, 23 Colo. 158, 85 Pac. 244. App. 123, 127 Pac. 923. 3 Toenniges v. Drake, 7 Colo. o Peek v. Strauss, 33 Cal. 683; 471, 4 Pac. 790. Hibernia Sav. & L. Soc. v. Clarke, 4 Dolan V. Topping, 51 Kan. 321, 110 Cal. 27, 42 Pac. 425. 32 Pac. 1120. 10 Kerr's Cyc. Cal. Code Civ. Deputy sheriff of county outside Proc, § 410. of the state in which the defen- For form of sheriffs certificate dant is found, not authorized to to return, see Jury's Adjudicated make the personal service out of Forms of Pleading and Practice, the state provided for in Gen. vol. 2, p. 185, form No. 1()S(;. Stats. 1889, par. 4159. — Kincaid v. n Blackwell v. Glass, 4:: Arl<. Frog, 49 Kan. 766, 31 Pac. 704. 211; Joyce v. .Joyce, 5 Cal. ti;>; ■> England Bros. v. Young, 26 Rowley v. Howard, 23 Cal. 401. Okla. 494, 110 Pac. 895. 403; Reinhart v. Lugo. 86 Cal. i; Donaldson v. Winningham, 62 395. 398. 21 Am. St. Rep. 52. 24 Wash. 212, 113 Pac. 285. Pac. 1089; People v. Le Doux, i:.5 185 §152 CODE PLEADING AND PRACTICE. [I>t. deputy must show the county for which the sheriff is act- ing! 2 — because such deputy acts solely by virtue of the power conferred upon him by his principal, and all acts by him must be done in the name of that principal. ^^ When the summons is served by any other person, it must be returned in the same time to the same place as in the case of service by the sheriff, with an affidavit of such person of its service, and of the service of a copy of the complaint, where such copy is served.^* § 152. By SHERIFF — In general. It has already been seen that a summons may be served by the sheriff of the county in which the defendant is found ;^ but the general provision of the Political Code, to the effect that "the sheriff must serve all process and notices in the manner prescribed by law, ' '- taken in connection with section 410 of the Code of Civil Procedure, does not give to, or im- pose upon, the sheriff exclusively the duty of serving all process and notices, but simply requires him to serve all process and notices directed to him,^ or placed in his hands to be served.^ The same was true at common law,^ Cal. 535, 544, 102 Pac. 517; Sam- mis V. Wightman, 25 Fla. 548, 557, 6 So. 173; Ditch v. Edwards, 2 111. (1 Scam.) 127, 26 Am. Dec. 414; Glencoe, Village of, v. People, 78 111. 382; Robinson v. Hall, 33 Kan. 139, 143, 5 Pac. 7G3; Fee v. Kan- sas City, Ft. S. & M. R. Co., 58 Mo. App. 90, 96; Arnold v. Scott, 39 Tex. 378. See notes, 26 Am. Dec. 415; 89 Am. Dec. 684; 106 Am. St. Rep. 826; 19 L, R. A. 180. 12 Jordan v. Terry, 33 Tex. 680. 13 People V. Le Doux, 155 Cal. 535, 544, 102 Pac. 517. It Kerr's Cyc. Cal. Code Civ. Proc. § 410. 1 See, ante, § 150. 2 Kerr's Cyc. Cal. Pol. Code (2d ed.), §4157, subd. 9 (Consol. Supps. 1906-1913, p. 598), the present, § 4157, embracing former Pol. Code, § 4176 (Kerr's Cyc. Cal. Pol. Code, 1st ed.), and §89 of former County Government Act (Henning's Gen. Laws, 1st ed., p. 215). 3 In Colorado the sheriff can not execute a process unless it is directed to him. — Porter v. Staff, 6 Colo. 32. ■ ■1 Golden Gate Consol. Hydraulic Min. Co. v. Superior Court, 65 Cal. 187, 190, 3 Pac. 628; Hibernia Sav. & L. Soc. V. Clarke, 110 Cal. 27, 31, 42 Pac. 425. 5 See, ante, § 150, footnote 9. 186 Ch. X.] SERVICE BY DEPUTY SHERIFF. §§ 153, 154 and the doctrine prevails in other states having reformed procedural codes.* <^ 153. By his deputy. A sheriff may serve a proc- ess or notice by his duly constituted deputy. This in accordance with the general rule of the common law that officers who exercise judicial functions can not act by deputy, but those who exercise merely ministerial func- tions may, without express authority to that effect.^ Thus, in the absence of statutory provisions as to the appointment of deputies by constables, the common-law rule applies, and constables may act by deputy in the exercise of their ministerial functions.- The appoint- ment of a deputy, and the delivery of a process to him by the sheriff, are sufficient authority to him to serve the same.^ But courts can not know an under-oflicer, and we have already seen that the return of a deputy-sheriff to a summons served by him must be in the name of the sheriff and by his authority to be valid."* Thus, where a summons was served by the deputy-sheriff, and returned, with the following signature to the return: ''Elijah F. Cole, D. S.," and judgment was rendered by default, it was held that the judgment was null and void ; the return should have been made in the name of the sheriff by the deputy.^ ^ 154. Effect of return. The return of the sher- iff to the effect that he ser^^ed a copy of the summons, on collateral attack, will be held to be equivalent to a return that he served a copy certified by the clerk.^ In a case where judginent of foreclosure was obtained on a defec- tive service, and the premises sold under the judgnnent to a party who was, at the time of such purchase, cognizant c Porter V. Stapp, 6 Colo. 32. 3 McCrackeii v. Todd, 1 Kan. 1 Johnson v. Fennell, 35 Cal. 711. 118. 2 Id.; Prickett v. Cleek, 13 Ore. -i See, ante, § 150, footnotes 11-13. 415, 417, 11 Pac. 49; Kaysen v. & Rowley v. Howard, 23 Cal. 401. Steele, 13 Utah 260, 264, 44 Pac. i Brown v. Lawson, 51 Cal. 615. 1042. 187 §154 CODE PLEADING AND PRACTICE. [Pt. I, of the fact of such defective service, and also that the defendant was a married woman, and where the defend- ant has a valid defense to such action, the judgment will be set aside.- Courts should presume that the sheriff served all processes within his jurisdiction, where no place of service is stated.^ "Where the return of a sheriff states that he served defendants with a certified copy of the complaint, it will be presumed that the copy was certi- fied by the clerk, and not by some one else.^ A sheriff's return is not traversable, nor can it be attacked collater- ally, even if he has been guilty of fraud or collusion.^ In a case where the official return of the sheriff showed per- sonal service of the summons upon the defendant, an afii- davit by the defendant, made after a great lapse of time, showing that he had no recollection of the service of summons, was held to be entitled to but little weight as against the official return of the sheriff, and that a find- ing in such case by the court below that the defendant was personally served with the summons and a certified copy of the complaint will not be disturbed on appeal.® In mak- ing service of a summons, and in the return of such service, the provisions of the statute must be shown to have been substantially followed by the officer ; otherwise the proceedings can not be supported upon a direct ap- peal ; ' because no presumption can be indulged that there was some other and different kind of service made than 2 McMillan v. Reynolds, 11 Cal. 372. 3 Crane v. Brannan, 3 Cal. 192. Acknowledgment of service en- dorsed on summons, is sufficient to show that the service was properly made, although the acknowledgment fails to state the place of service. — Stoddard Mfg. Co. V. Mattice, 10 S. D. 255, 72 N. W. 891. 4 Curtis V. Herrick, 14 Cal. 117, 119, 120, 73 Am. Dec. 632; affirmed 18 Cal. 678. 5 Egery v. Buchanan, 5 Cal. 53, 56; Gregory v. Ford, 14 Cal. 143. 73 Am. Dec. 643; Smoot v. Judd, 184 Mo. 525, 83 S. W. 486. People V. Dodge, 104 Cal. 487, 489, 38 Pac. 203. See McCoy v. Van Ness, 98 Cal. 675. 33 Pac. 761. 7 People V. Bernal, 43 Cal. 385, 389. 188 ell. X.] SUFFICIENCY OF RETURX. § 155 that appearing on the record;'* and where the record itself shows that no service of summons has been had upon a defendant, as required by the statute, the court is without jurisdiction of the person of the defendant, and a judgment rendered under such circumstances is a nullity.^ A description in a sheriff's return of city lots by numbers referring to the official map is sufficient.^" §155. Sufficiency of return — Several de- fendants. The sufficiency of the return of a sheriff of the service of process is measured by the requirements of the statute under which the service is made, as inter- preted by the courts of the state. Where the statute re- quires "personal service,"^ a return by the sheriff which simply says that the summons was ''duly served, "^ has been held to be insufficient, because such return fails to disclose who was served.^ Where more than one defendant has been served, the return must show the service of a copy of the summons, and also the service of a copy of the complaint, wdiere the statute requires that a copy of the complaint shall be served with the summons, upon each of the defendants. Where the return is properly phrased, and the exact facts set out, the matter will be clear and no question can arise ; but where the sheriff's return simply recites, among other things, regarding the summons, that the sheriff "deliv- ered a true copy thereof to A and B, the ^\dthin-named defendants," instead of returning that he delivered a copy to A, and also a copy to B, the within-named de- fendants, is the return sufficient on collateral attack of a default judgment? According to what is considered to s Lonkey v. Keyes Silver Min. what constitutes such service, see, Co., 21 Nev. 312, 320, 31 Pac. 57. ante, § 148. !> Davidson v. Clark, 7 Mont. 100, 2 As to "duly served," see, ante, 14 Pac. 663. § 149. 10 Welch V. Sullivan, 8 Cal. 165, 3 Stults v. Outcault, 4 N. J. L. 186. (1 South.) 130. 1 As to "personal service" and 189 § 156 CODE PLEADING AND PRACTICE. [Pt. I, be the weight of authority such a return is sufficient, un- less directly attacked in the cause ;^ but a contrary doc- trine is maintained by a long line of cases in Texas, under a narrow and technical construction of a strict statute.^ Thus, where the return of the sheriff shows that he served the summons ^'upon A on May 1, and upon B on May 2, by delivering to and leaving with them a certi- fied copy thereof," has been held to sufficiently show that a coj)y was delivered to each of the defendants.*^ 156. False ketukn — Effect of. Where the sheriff, through connivance with the plaintiff, fraud, or mistake, makes a false return as to the personal serv- ice of a summons on a defendant, when no such service was in fact made, and a default judgment is rendered by the court, it has been held in a recent case that the judg- ment thus rendered will not be open to collateral attack because of such false return, the court saying that tlie judgment thus entered is not void, but voidable only.^ But is such a contention sound law? How can the couit 4 McMillan v. Harrison, 66 Fla. 200, 49 L. R. A. (N. S.) 946, 63 So. 427; Martin v. Hargardine, 46 111. 322; Greenman v. Harvey, 53 m. 386; Keith Bros. & Co. v. Stiles, 92 Wis. 15, 19, 64 N. W. 860, 65 N. W. 860. 5 Thompson v. Griffith, 19 Tex. 115; Covington V. Burleson, 28 Tex. ;]68; Vaughan v. State, 29 Tex. 274; Williams v. Downes, 30 Tex. 51; Willis v. Bryan, 33 Tex. 429; King V. Goodson, 42 Tex. 152; Schramm v. Gentry, 64 Tex. 143; Holliday v. Steele, 65 Tex. 388; Fulton v. State, 14 Tex. App. 32; Randolph v. Schwingle (Tex. Civ. App.), 27 S. W. 955; Rush v. Davenport (Tex. Civ. App.), 34 S. W. 380; Chamblee v. Hufsmith (Tex. Civ. App.), 44 S. W. 616; Swilley v. Reliance Lumber Co. (Tex. Civ. App.). 46 S. W. 387; Russell V. Butler (Tex. Civ. App.), 71 S. W. 395; Scott v. Ray (Tex. Civ. App.), 141 S. W. 1002; Stephenson v. Kellogg, 1 Tex. App. Civ. Cas. 272; McDowell v. Nicholson, 2 Tex. App. Civ. Ca:;. 203; Chowning v. Chowning, 3 Tex. App. Civ. Cas. 191; Chown- ing V. Sumner, 3 Tex. App. Civ. Cas. 447; Rutherford v. Daven- port, 4 Tex. App. Civ. Cas. 417, 16 S. W. 110. See exhaustive note. 49 L. R. A. (N. S.) 946. <5 Keith Bros. & Co. v. Stiles, 92 Wis. 15, 19, 64 N. W. 860, 65 N. W. 860. • 1 Morgan v. Williams, 66 Wash. 649, 38 L. R. A. (N. S.) 292, 120 Pac. 106. ]90 ell. X.] FALSE RETURN, EPrECT OF. §156 secure jurisdiction without service of process f- The only theory on which the judgment can be maintained at all — for a judgment withon^ jurisdiction (and the actual service of process in some jrm authorized by law is the only thing that can confer jurisdiction) is a nullity^ — is that it is the return of the sheriff, and not the service of the process, that confers upon the court jurisdiction of the defendant — a proposition which can not be main- tained on principle. The only case in California holding this doctrine^ has been declared not to state the law cor- rectly, and is virtually overruled.^ It is true there are some early cases which decide that where the plaintiff acts in good faith, and the sheriff returns the process as exe- cuted, when in truth the summons never was served, the return is conclusive against the defendant, in favor of 2 See, ante, § 118. In California, if a judgment is taken without due process of law against a defendant over whom no jurisdiction has been obtained by the court, he has no duty to per- form in relation to the proceed- ing, and can defend an action on the judgment by showing that he had not been served, notwith- standing the record of the judg- ment shows the c o n t r a r y. — Lapham v. Campbell, 61 Cal. 296, 300. Innproper service of process, even, is insufficient to confer juris- diction on the court, and it has l)een held defendant not bound by sale of land under execution on judgment rendered by default on such service. — McCoy v. Crawford, 9 Tex. 353. Recitals as to service of process, in a judgment by default in a case where the process was In fact not served, are worthless as against the judgment-defendant not served. — See Gleason v. Dodd, 45 Mass. (4 Mete.) 333; Shelton v. Tiffin, 47 U. S. (6 How.) 163, 12 L. Ed. 387. 3 Harshey v. Blackmarr, 20 Iowa 179, 89 Am. Dec. 527; Long v. Montgomery, 69 Ky. (6 Bush) 395. Court assuming to act without jurisdiction, the proceeding and judgment will be altogether void. — Cooley Const. Lim., p. 499. While this is said of want of jurisdiction of the subject-matter of the action, it is equally true of a want of jurisdiction of the per- son of the defendant. 4 Reinhardt v. Lugo, 86 Cal. 395, 400, 21 Am. St. Rep. 52, 24 Pac. 1089. r. Herman v. Santee, 203 Cal. 519, 524, 42 Am. St. Rep. 145, 37 Pac. 509. See discussion, post, § 157. 191 §157 CODE PLEADING AND PRACTICE. [Pt. I, the plaintiff f but this is thought not to be the law in any jurisdiction in the Union at the present time J U57. ''Law of the land": ''due proc- ess OF law/' Both under the federaP and state- consti- tutions, alike, the protection of the "law of the land" is guaranteed to every citizen and sojourner within either the federal or the state jurisdiction, and no person is to be rendered amenable to the judgment of any court except upon "due process of law," and an opportunity to be lieard, or, as it is popularly phrased, after he has had ' ' his day in court ' ' — that is, a trial.^ How can there be an opportunity to be heard — a trial — if there is in fact no process served, and the defendant has no notice! In judicial investigation, the "law of the land" requires that there shall, in all cases, be "due process of law"; and "due process of law" requires that (1) the defend- ant shall be brought into court by an actual service of process in a method pro\ided by law ; and when in court that (2) he shall be given an opportunity to make his statement as to the claim or cause of action of the plain- tiff, that is, to put in a defense; and (3) requires a trial, at which the defendant must be allowed to introduce and have heard his witnesses, and be given a chance to estab- lish any fact w^hich, according to the usages of the com- mon law or the provisions of the constitution, would be a l^rotection to him and to his property.* Shall a dishonest f, T a y 1 o r v. Lewis, 25 Ky. (2 J. J. Marsh.) 400, 19 Am. Dec. 135; V^alker v. Robbins, 55 U. S. (14 How.) 584, 14 L. Ed. 552. 7 See discussion next section; also, note, 19 Am. Dec. 137. 1 U. S. Const., Amendments V and XIV, §L 2 As Cal. Const. 1879, Bill of Rights, Henning's Gen. Laws, 2d ed., p. 29; Colo. Const. Bill of Rights, § 25, etc. 3 Tift V. Griffin, 5 Ga. 185; Con- way V. Cable, 37 111. 82, 89, 87 Am. Dec. 240, 241; Lenz v. Charl- ton, 23 Wis. 482. 4 See: ALA. — Zeigler v. South & N. A. R. Co. 58 Ala. 594. IOWA— Mason v. Messenger, 17 Iowa 261. KAN.— Taylor v. Miles, 5 Kan. 498, 7 Am. Rep. 558; Kansas Pac. R. Co. V. Dunmeyer, 19 Kan. 539. MICH. — Parsons v. Russell, 11 Mich. 113, 83 Am. Dec. 728. MO.— Clark v. Mitchell, 64 Mo. 564. NEB.— South Platte Land Co. v. 192 ch. X.] BELIEF FROM FALSE RETURN. § 158 or fraudulent sheriff, or a negligent sheriff, by a false return as to the service of process, conclude a defend- ant without fault in favor of a plaintiff, even though the latter act in entire good faith on his part! The law, it is thought, does not so hold, and if it did it would be neither just nor equitable; to so hold w^ould be to subvert the veiy foundation upon which our superstructure of gov- ernment rests. A court must have actual jurisdiction before its proceedings and judgment are valid and bind- ing. Jurisdiction comprises two elements: (1) Of the subject-matter of the action, given by law through spe- cific provision or enumeration; and (2) of the person of the defendant, given by law through actual ser\dce of process, only. If either of these elements be lacking, the proceedings and the judgment of the court are a nullity — when the facts are established.^ <§ 158. Relief from false return — 1. In general: Kentucky statute. Eelief from a false return of a sheriff, through connivance with the plaintiff, fraud, or mere mistake, depends, under some authorities, Buffalo County Commissioners, 7 Briggs, 1 Curt. 311, Fed. Cas. No. Neb. 253; Larson v. Dickey, 39 5764; Rosser, In re, 41 C. C. A. Neb. 479, 42 Am. St. Rep. 595, 58 497, 101 Fed. 562. N. W. 171; Chicago, B. & Q. R. Defendant must be brought Co. V. State, 47 Neb. 549, 53 Am. ^jt^j^ jurisdiction of court by St. Rep. 557, 41 L. R. A. 481, 66 ^^^^.^^ ^j ^^^^^^^ ^.^^.^ ^^ ^ N. W. 624. NEV.-Wright v. to constitute "due process of law." Cradlebaugh. 3 Nev. 341, 349; _pennoyer v. Neff, 95 U. S. 714. Persing v. Reno Stock Brokerage 24 l Ed 565 Co., 30 Nev. 342, 349, 96 Pac. 1054. N. Y.— People v. Chautauqua Jurisdiction of court a part of County Sheriff, 11 Civ. Proc. Rep. "^"^ P^°^^^^ of law."-Smith v. 172. OKLA.-Smith v. Speed, 11 ^peed, 11 Okla. 95. 55 L. R. A. 402. Okla. 95, 55 L. R. A. 403, 66 Pac. ^^ ^^^- ^^^• 511. VA. — Williams' Admr. v. New- Notice and an opportunity to be man, 93 Va. 719, 2 S. E. 19. WIS. — heard, are essential elements of Schlitz V. Roenitz, 86 Wis. 31, 39 "due process of law" under the Am. St, Rep. 873, 21 L. R. A. 483, constitutional guarantee.— Rosser. 56 N. W. 194. FED.— Simon v. In re, 41 C. C. A. 497. 101 Fed. 562. Croft, 182 U. S. 427, 45 L. Ed. 1165, 5 See, ante, § 118; also, the dis- 21 Sup. Ct. Rep. 836; Greene v. cussion in next section. I Code PI. and Pr.— 13 ^93 § 159 CODE PLEADING AND PRACTICE. [Pt. I, largely upon the wording of the statute under which the service was made; but the cases so holding are not thought to be sound law and incapable of being supported on principle, for the reason that the authority of a stat- ute can never rise higher than the constitution, federal and state, and any provision in a statute which makes the return of a sheriff to a process absolute evidence of the performance of the things required by law of him, like a statute making a tax-deed absolute evidence of the regu- larity and sufficiency of all the proceedings leading up to its execution, is plainly unconstitutional.^ Among other states having a statute which concludes the defend- ant in favor of the plaintiff by the sheriff's return, how- ever fraudulent or false, is the state of Kentucky,- in which statute it is provided that no fact ofScially stated by an officer in respect to a matter about which he is required by law to make a statement in writing, shall be called in question, except on an allegation of fraud in the party benefited thereby, or mistake on the part of the officer, in a direct proceeding against the sheriff or his sureties.-^ This statute plainly contravenes the constitutional pro- vision guaranteeing protection of the ^ ' law of the land, ' ' and '*due process of law," because it concludes the de- fendant in favor of the plaintiff in a cause, by the false return of the sheriff, without notice, and affords no relief by any proceedings in that cause. § 159. 2. Motion to vacate judg- ment. A false return should be attackable, and is be- lieved to be attackable in all jurisdictions ha\dng the reformed system of judicature, in the same suit, by a 1 See Cooley's Const. Lim., 4th 400, 19 Am. Dec 135; Thomas v. ed., pp. 458, 459, and authorities Ireland, 88 Ky. 581, 21 Am. St. Rep, cited. 356, 11 S. W. 653; Doty v. Deposit 2 Ky. Stats. 1903, § 3760, Building & L. Assoc, 103 Ky. 710. 3 Among decisions under this 43 L. R. A. 551, 554, 46 S. W. 219, statute, see Smith v. Hornback, 10 47 S. W. 433; Utter v. Smith, 25 Ky. (3 A. K. Marsh.) 392; Taylor Ky. L. Rep. 2272, 80 S. W. 447. V. Lewis, 25 Ky. (2 J. J. Marsh.) 194 ch. X.] RELIEF FROM FALSE RETURN. §15^ motion to vacate a judgment by default in those cases where there was no service of process and the sheriff made a false return of service.^ There is nothing sacred and unimpeachable about a sheriff's conduct or any rec- ord required by law to be made by him,- and any statute 1 Norton v. Atchison, T. & S. F. R. Co., 97 Cal. 388, 397, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452, 61 Fed. 619. See: Bryant v. Mack, 19 Ky. L. Rep. 744, 41 S. W. 774 (under Code, §763); Smith v. Hickey, 25 App. Div. (N. Y.) 105, 49 N. Y. Supp. 198; Moore v. Monumental Mut. Life Ins. Co., 77 App. Div. (N. Y.) 209, 78 N. Y. Supp. 1009; Freeman v. Wood, 11 N. D. 1, 8, 88 N. W. 721. Morgan v. Williams, 66 Wash. (549, 38 L. R. A. (N. S.) 292, 296, 120 Pac. 106. Presumption of legal service of process not indulged from fact that party entitled to such service comes into court and moves to dismiss the cause for want of service of process. — B o n n e y v. Baldwin, 3 Mo. 49. "Proceeding by motion is, in our opinion, authorized, and is the proper way to bring up and test the validity of the judgment" rendered on default upon a false return of service. — McFarland, J., in Norton v. Atchison, T. & S. F. R. Co., 97 Cal. 388, 397, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452, citing Ede v. Hazen, 61 Cal. 360. See People v. Mullan, 65 Cal. 396, 4 Pac. 348. This remedy must be pursued and exhausted before a court of equity will grant relief (post, § 160).— See: Ede v. Hazen, 61 Cal. 360; Zellerbach v. Allenburg, 67 Cal. 296, 299, 7 Pac. 908; Chie- lovich v. Krauss, 2 Cal. Unrep. 643, 9 Pac. 945; Luco v. Brown, 73 Cal. 3, 6, 2 Am, St. Rep. 772, 774, 14 Pac. 366; Moulton v. Knapp, 85 Cal. 385, 390, 24 Pac. 803; Estudillo v. Security Loan & Trust Co., 149 Cal. 556, 563, 87 Pac. 19, 22; Brum v. Ivins, 154 Cal. 17, 21, 129 Am. St. Rep. 137. 96 Pac. 876; Bear v. Higson, 26 Utah 78, 83, 72 Pac. 180. But the remedy must be pur- sued promptly; there is no pro- vision in law for a motion to vacate a judgment after the time limited in § 473 of the Code of Civil Procedure. A judgment can not be attacked in this informal way years after its rendition. — People V. Goodhue, 80 Cal. 199, 50 Am. St. Rep. 73, 22 Pac. 66; People V. Harris, 84 Cal. 607, 24 Pac. 311. Remedy by motion confined to cases in which no personal service had. — Lang Syne Gold Min. Co. v. Ross, 20 Nev. 127, 137, 19 Am. St. Rep. 337, 342, 18 Pac. 358. 2 Du Bois V. Clark, 12 Colo. App. 220, 55 Pac. 750; Perry v. Bruns- wick & W. R. Co., 119 Ga. 819, 47 S. E. 172; Kochman v. O'Neill, 102 111. App. 475; affirmed 202 111. 110, 66 N. E. 1047. Return of service may be shown to be false, whether the false re- cital is of matters presumptively within the officer's knowledge or not, under Colorado Bill of Rights, § 25.— Du Bois V. Clark, 12 Colo. App. 220, 55 Pac. 750. Either in law or in equity. — 195 §159 CODE PLEADING AND PRACTICE. [Pt. I, seeking to make either unattackable in the same suit or proceeding, by showing its falsity, is plainly unconstitu- tional and smacks of the primitive and undeveloped con- dition of the law during the Dark Ages, when the rack and the thumb-screw were legitimate means of evidence. Under an enlightened and constitutional view, a sheriff's return is merely prima facie evidence of the fact of serv- ice of process — of the things required by law to be con- tained therein, and may be controverted and disproved by defendant;^ but all the cases are not on this modern and enlightened view-point.^ The presumption indulged Kochman v. O'Neill, 102 111. App. 475; affirmed, 202 111. 110, 66 N. E. 1047. Evidence insufficient to over- come. — Galvin v. Dalley, 109 Iowa 332, 80 N. W. 420; Stunkle v. Holland, 4 Kan. App. 478, 46 Pac. 416; Utter v. Smith, 25 Ky. L. Rep. 2272, 80 S. W. 447; Vaule V. Miller, 69 Minn. 440, 72 N. W. 452; Illinois Steel Co. v. Dattlaff, 116 Wis. 319, 93 N. W. 14. Uncorroborated testimony of de- fendant sufficient to overcome. — Trager v. Webster, 174 Mass. 580, 55 N. E. 318. 3 See: Bailey v Capelle, 1 Harr. (Del.) 449; Newman v. Greeley State Bank, 92 111. App. 638; Splahn v. Gillespie, 48 Ind. 397; Hoitt V. Skinner, 99 Iowa 360, 68 N. W. 788; Shehan v. Stuart, 117 Iowa 207, 90 N. W. 614; Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54; Trager v. Webster, 174 Mass. 580, 55 N. E. 318; State ex rel. Carroll v. Devitt, 107 Mo. 573, 28 Am. St. Rep. 440, 17 S. W. 900; Walker v. Stevens, .52 Neb. 653, 72 N. W. 1038; Marin v. Potter, 15 N. D. 284, 107 N. W. 970; Masterson v. Ashcomb, 54 Tex. 324; Northwestern &. Pac. Hypotheek Bank v. Ridpath, 29 Wash. 687, 70 Pac. 139; Brauchle v. Nothhelfer, 107 Wis. 457, 83 N. W. 653. 4 Brown v. Turner, 11 Ala. 752; Parker v. Medlock, 117 Ga. 819, 47 S. E. 172; Calvert, W. & B. V. R. Co. V. Driskill, 31 Tex. Civ. App. 200, 71 S. W. 997; Trimble V. Erie Electric Motor Co., 89 Fed. 51 (following rule in Penn- sylvania). Every presumption indulged in favor of the truth of a sheriff's return. — Ingraham v. McGraw, 3 Kan. 521. Presumption of service of pro- cess of a court of general common- law jurisdiction. — Steinhardt v. Baker, 163 N. Y. 410, 57 N. E. 629, affirming 25 App. Div. 197, 49 N. Y. Supp. 357. Presumption not indulged as to private person or special bailiff making service and return; strict compliance with law required in such cases. — Simms v. Simms, 88 Ky. 642, 11 S. W. 665. Return of sheriff endorsed on summons evidence of a high grade, abundantly sufficient to sustain a finding of proper ser- 19b' Ch. X.] RELIEF FROM FALSE RETURN. § IGO by courts as to the regularity and validity of proceedings, including of course the service of process, before judg- ment or decree, is applicable in cases of collateral attack only, and can not be invoked to cure a jurisdictional de- fect^ in the service of process, or to bolster up a fraudu- lent or mistaken act of a sheriff in making a false return as to the service of process, upon an application in tlie same suit, to set aside a default judgment or decree for want of jurisdiction on the part of the court, because of a failure in the service of process.^ A motion made in the case to set aside the judgment is a direct and not a collateral attack on such judgmenf^ The proof of falsity of the return of the sheriff must be positive, satisfactory, and conclusive.^ §160. 3. Suit in equity to vacate OR enjoin. By the weight of authority and the better reason, a court of equity has jurisdiction to vacate, or otherwise relieve against, a judgment in a cause at law in which the complainant was not served with process, and of which suit he had no notice,^ and this is true even vice. — Murrer v. Security Co., 131 Dist., 142 Cal. 601, 606, 76 Pac. Ind. 35, 30 S. E. 879. 381; Hanley v. Hanley, 4 Cal. 5 As to jurisdictional defects in Prob. 479. ILL. — Owens v. Ran- service of process, see note, § 38. stead, 22 111. 161. I O W A — 6 See Blythe v. Hinckley, 84 Harshey v. Blackmarr, 20 Iowa Fed. 228, 239. 161, 89 Am. Dec. 520; Newcombe 7 People V. Mullan, 65 Cal. 396, v. Dewey, 27 Iowa 381; Stone v. 4 Pac. 348. Skerry, 31 Iowa 582. KAN.— s Osman v. Wisted, 78 Minn. Chambers v. Wrought Iron Bridge 295, 80 N. W. 1127; Randall v. Mf'g'ry, 16 Kan. 270. KY.— Lan- Colllns, 58 Tex. 232. drum v. Farmer, 69 Ky. (6 Bush) 1 ALA.— Brooks v. Harrison, 2 46. MISS.— Walker v. Gilbert, Ala. 209; Crafts v. Dexter, 8 Ala. Freem. Ch. 85. MO. — Wonderly 767, 42 Am. Dec. 666. ARK.— v. Lafayette County, 150 Mo. 635, Little Rock & Ft. S. R. Co. v. 73 Am. St. Rep. 474, 45 L. R. A. Wells, 61 Ark. 354, 54 Am. St. Rep. 386, 51 S. W. 745; Smoot v. Judd, 216, 260, 30 L. R. A. 560, 33 S. W. 161 Mo. 673, 687, 84 Am. St. Rep. 208. CAL.— Dunlap v. Steere, 61 738, 744, 61 S. W. 851; Engler v. Cal. 298; Curtis v. Schell, 129 Cal. Knoblaugh, 131 Mo. App. 493, 110 208, 211, 79 Am. St. Rep. 157, 61 S. W. 749. MONT.— Hauswirth v. Pac. 951; People v. Perris Irr. Sullivan, 6 Mont. 203, 9 Pac. 798; 197 §160 CODE PLEADING AND PRACTICE. [Ft. I, though the plaintiff in the law cause was not privy to the fraudulent or the negligent act of the sheriff through which the false return was made.- The fact that the com^ plainant has no adequate remedy at law, is a strong reason for granting such relief.^ Thus, in a case where the w^ant of jurisdiction of the court rendering the judgment against the complainant did not appear upon the face of the record, and for that reason an appeal was affirmed, the fact of such affirmance was held not to constitute an impediment to granting relief in equity, for the obvious reason that the remedy at law by appeal was inadequate.^ A suit in equity for relief against such a judgment is not state ex rel. Happel v. District Court, 38 Mont. 166, 172, 129 Am. St. Rep. 636, 35 L. R. A. (N. S.) 1098, 99 Pac. 291. N. Y.— Dob- son V. Pierce, 12 N. Y. 165, 62 Am. Dec. 154. OHIO— Oliver v. Pray, 4 Ohio 178, 19 Am. Dec. 595. ORE. — Hadley v. Jackson, 31 Ore. 555, 65 Am. St. Rep. 841. 50 Pac. 916; Huntington v. Crouter, 33 Ore. 408, 72 Am. St. Rep. 726, 54 Pac. 208. PA. — Miller v. Gorman, 38 Pa. St. 309. R. I.— Dowell v. Goodwin, 22 R. I. 291, 84 Am. St. Rep. 842, 51 L. R. A. 873, 47 Atl. 695. TENN.— Estis v. Patton, 11 Tenn. (3 Yerg.) 381; Ridgeway v. Bank of Tennessee, 30 Tenn. (11 Humph.) 522; Bell v. Williams, 38 Tenn. (1 Head) 229; Ingle v. McCurry, 48 Tenn. (1 Heisk.) 26. VT.— Emerson v. Udall, 13 Vt. 477, 37 Am. Dec. 604. W. VA.— Farmers' & Shippers' Leaf To- bacco Warehouse Co. v. Pride- more, 55 W. Va. 451, 463, 47 S. E. 258, 263. WIS.— Johnson v. Cole- man, 23 Wis. 452, 99 Am. Dec. 193. FED. — Marine Ins. Co. v. Hodgson, 11 U. S. (7 Cr.) 332, 3 L. Ed. 362; Kibbe v. Benson, 84 U. S. (17 Wall.) 628, 21 L. Ed. 742; Phillips V. Negley, 117 U. S. 675, 29 L. Ed. 1015, 6 Sup. Ct. Rep. 905; United States V. Taylor, 157 Fed. 718; National Surety Co. v. State Bank, 56 C. C. A. 657, 129 Fed. 599, 61 L. R. A. 394. "Bills in equity for injunction against judgment, as well as for new trials of action at law, are not frequent, yet they are recog- nized as falling within chancery jurisdiction, and may be sustained . . . when no other remedy is adequate." — Carrington v. Hola- bird, 17 Conn. 530, 19 Am. Dec. 84. See Oliver v. Pray, 4 Ohio 175, 19 Am. Dec. 595. New trial at law, how and when obtainable in equity. — See note, 19 Am. Dec. 609. Simply to give new trial, equity will not assume control of judg- ment at law. — Marshall v. Holmes, 141 U. S. 589, 596, 35 L. Ed. 870, 873, 12 Sup. Ct. Rep. 62, 64. 2 Bishop V. Wood, 59 Ala. 253. 3 Ridgeway v. Bank of Tennes- see, 30 Tenn. (11 Humph.) 522. 4 Wilson • V. Montgomery, 22 Miss. (14 Smed. & M.) 205; Mc- Mahen v. Whelan, 44 Ore, 406, 75 Pac. 716. 198 ch. X.] RELIEP FROM FALSE RETURN. §160 a collateral attack on the law-court judgment, but is a Wilson V. Spring Hill Quartz joint debtors, though only one is Min. Co., 10 Cal. 445. served, held erroneous. — Nelson v. <•- Adams v. Town, 3 Cal. 247. Bostwick, 3 Hill (N. Y.) 37, 40 Am. 1 Wood V. Watkinson, 17 Conn. Dec. 310. 500. 44 Am. Dec. 562; Duryee v. 2 Golden State & Miners' Iron- Hale, 31 Conn. 217; St. John v. Works v. Davidson, 73 Cal. 389, 15 Holmes, 20 Wend. (N. Y.) 609, 32 Pac. 20; McCoy v. Bell, 1 Wash. Am. Dec. 603. 504, 20 Pac. 595. Judgment joint, invalid as to 3 Bishop v. Bull, 1 Day (Conn.) both.— Buffum v. Randall, 55 Me. 141; Southmayd v. Backus, 3 Conn. 252, 92 Am. Dec. 589; Hulme v. 474; Raney v. McRea, 14 Ga. 589, Jones, 6 Tex. 242, 55 Am. Dec. 774. 60 Am. Dec. 660; Wright v. Harris. —Erroneous, but not void.— 24 Ga. 415; Tappan v. Bruen, 5 Douglass' Lessee v. Massie, 16 Mass. 193; Call v. Haggar, 8 Mass. Ohio 271, 47 Am. Dec. 375. 423; Parker v. Danforth, 16 Mass. And may be reversed as .to those 299; Jones v. Penland, 19 N. C. served. — Winchester v. Beardin, 29 358. Tenn. (10 Humph.) 247, 51 Am. 4 Sacramento Sav. Bank v. Spen- Dec. 702. cer, 53 Cal. 737. Judgment against one of two i See, ante, § 135. 224 ell. X.] NONRESIDENT DEFENDANT. § 180 him in his representative capacity, and the process must be served upon him in such capacity. But it has been held in California that a misdescription of an administrator as *' executor" in the summons and entry of default, in an action to enforce a street assessment against the property of a decedent, will not render void a judgment enforcing the assessment upon such property, as against the admin- istrator of the estate, if the complaint charges him as administrator, and the affidavit of service of summons shows that he was served as administrator. ^ <^ 180. NoNRESiDEXT DEFENDANT. "Wc havc already dis- cussed the service of process, within the state, on the officer or agent of a foreign corporation, such officer or agent being casually or temporarily within the state, and the corporation not being engaged in business within the state ;^ it remains to discuss here, in a limited way, the service of process upon a natural person who is a non- resident of the state. It may be premised that if such nonresident is found within the state, in the absence of fraud- or personal privilege exempting him from the ser- vice of process,^ — a subject which can not be discussed in this place,^ — personal service of process will give the court jurisdiction of the person of the defendant, and a judgment in personam will be binding.^ But if such non- resident can not be found within the state, and has no property within the state, can the court acquire jurisdic- tion through service by publication or substituted service? The question is one upon which the numerous decisions 2 Lyons v. Roach, 84 Cal. 27, 23 in 4 Cent. Dig. Cal. 2686, §§140- Pac. 1026. 154; 16 Decen. Dig., p. 1442, §§ 112- 1 See, ante, § 172. ^26. 5 See Anderson v. Schloesser, 2 See, post, § 213; McLain v. Par- ^53 ^ai. 223, 94 Pac. 885, holding ker, 88 Kan. 873. 129 Pac. 1140, 131 ^^^, ^^^^^ ^^^ ^^^^^^ ^^^^^^ Par 153 ■ sonal service upon a nonresident 3 See Kerr's Wharton on Crim- defendant it was presumed to have Inal Procedure, vol. I, §§ 10-20. been a personal service within the 4 See authorities on this subject state. I Code PI. and Pr.— 15 225 §180 CODE PLEADING AND PRACTICE. [Pt.I, are not harmonious. Statutes providing for sucli service upon nonresident defendants are found in most of the jurisdictions.^ Such statutes are valid and binding within the state, according to many of the decisions, but by the great preponderance of authority service of process in that manner and judgment thereon is without binding force or effect in any other jurisdiction, in a suit upon a judgment rendered on such service of process."^ Some of the cases hold that the court can acquire jurisdiction over a nonresident defendant in those cases only in which such defendant has property within the state which is at- tached,^ in which case the proceedings and the judgment 6 As to California provision, see, post, §§186, 193 etseq. 7 Among the numerous cases on the various angles of this question, see: ALA. — Long v. Claris, 78 So. 832. ARK. — Kimball v. Merrick, 20 Ark. 12; Silver v. Lucke, 43 Ark. 298. CAL.— Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73. COLO.— Denny v. Ashley, 12 Colo. 165, 20 Pac. 331. CONN.— Aldrich v. K.inney, 4 Conn. 380, 10 Am. Dec. 151. IND.— Quari v. Ab- bett, 102 Ind. 233, 52 Am. Rep. 662, 1 N. E. 476; Meyer v. Bucks, 2 Ind. App. 571, 50 Am. St. Rep. 251, 16 L. R. A. 231, 28 N. E. 992; Beckett v. State, 4 Ind. App. 137, 30 N. E. 536. KY.— Rogers v. Coleman, 3 Ky. (1 Hard.) 418, 3 Am. Dec. 729. ME. — McVicker v. Bedy, 31 Me. 314, 50 Am. Dec. 666. MASS.— Ewer v. Coffin, 55 Mass. (1 Cush.) 23, 48 Am. Dec. 587; National Tele- phone Mfg. Co. V. Du Bois, 165 Mass. 117, 52 Am. St. Rep. 503, 30 L. R. A. 628, 42 N. E. 510. MO.— Chamberlain v. Faris, 1 Mo. 517, 44 Am. Dec. 304; Abbott v. Sheppard, 44 Mo. 273. MONT. — Silver Camp Min. Co. V. Dickert, 31 Mont. 398, 3 Ann. Gas. 1000, 67 L. R. A. 944, 78 Pac. 967. N. H.— Downer v. Shaw, 22 N. H. 277. OHIO— Arndt V. Arndt, 15 Ohio 33; Cross v. Arm- strong, 44 Ohio St. 613, 10 N. E. 160. PA.— Scott V. Noble, 72 Pa. St. 115, 13 Am. Rep. 663. S. C— Miller v. Miller, 1 Bail. L. 242. TENN. — Earthman v. Jones, 10 Tenn. (2 Yerg.) 484. TEX.— York V. State, 73 Tex. 751, 11 S. W. 869; Kimmarle v. Houston & T. C. R. Co., 76 Tex. 686, 12 S. W. 698; Martin v. Cobb, 77 Tex. 544, 14 S. W. 162. VT.— Price v. Hickok, 39 Vt. 292; People's Nat. Bank v. Hall, 76 Vt. 283, 56 Atl. 1012. WIS. — Renier v. Hulburt, 81 Wis. 24, 29 Am. St. Rep. 850, 14 L. R. A. 562, 50 N. W. 783; Cox v. Northern Wis- consin Lumber Co., 82 Wis. 145, 51 N. W. 1130. See notes 16 L. R. A. 231, 50 L. R. A. 578. 8 Impounding property in hands of receiver, court may acquire jur- isdiction to subject the property to satisfaction of any judgment it may render on service of process by publication, the same as by attachment of the property. — Mur- 22( Ch. X,] MODE AND SUFFICIENCY OF SERVICE. § 181 rendered are in rem and not in personam, and binds only the property of the defendant within the state which has been attached, and that other property of the defendant within the state, which was not attached, can not be reached on execution under the judgment. '^ And it has been held that a statute providing that, in a personal action against a nonresident of the state carrying on business within the state, process may be served upon an agent of the defendant who is in charge of the business within the state, without the seizure of property, is un- constitutional.^" 4. Mode of Service of Process and Sufficiency Thereof. § 181. In general. The mode of service of process upon a defendant, different from the course of the com- mon law, depends upon the provisions and requirements of the statute of the particular jurisdiction in which the service is made or attempted. The usual modes of service of process are: (1) Personal service,^ which in some juris- dictions may be made by telegraph f and (2) constructive service, which may be (a) by substituted service,^ or (b) by publication.* All of these methods of service will be discussed in the sections which follow. According to the course of the common law, and independent of statute, the method of service of process is by showing the original summons or process under the seal of the court, and delivering to the defendant a copy thereof.^ Where a service is attempted to be made in a manner different ry V. Murray, 115 Cal. 266, 56 Am. l See, post, §§ 182-186 St. Rep. 97, 37 L. R. A. 626, 47 Pac. ^s to what constitutes a suf- 37; Rhoades v. Rhoades, 78 Neb. fj^jent service of a summons see 498, 126 Am. St. Rep. 611, 111 Heatherly v. Hadley, 2 Ore 269 N. W. 122. „ . o 1^ mu T^ /^ 2 See, post, § 1S5. 9 Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 444, 58 L. R. A. ^ ^^®' P^^*' §§ 187-191, 173, 67 S. W. 856. -i See, post, §§ 193-206. lOCabanne v. Graf, 87 Minn. 5 Edmondson v. Mason, 16 Cal. 5(0, 94 Am. St. Rep. 722, 59 L. R. A. 386. 7.35, 92 N. W. 461. 227 §§182,183 CODE PLEADING AND PRACTICE, [Pt. I, from tlie course of the common law, in making such ser- vice and in the return thereof the statute under which it is made or attempted must be strictly pursued in order to give the court jurisdiction.^ To be duly served' with a summons implies that the defendant has been properly served with a summons notifying him to appear and answer in the court where the judgment is sought to be procured.* Actual service directed to be made personally, without designating a mode of service, must be made by citation.^ § 182. Personal service — In general. In California, where a defendant sued resides within the state, service of process is to be made by the delivery to him, within the state, of a copy of the summons and a copy of the com- plaint;^ except in those cases where (1) he has departed from the state, or (2) can not, after due diligence, be found within the state, or (3) conceals himself to avoid the service of summons, — in either of which cases it is provided that he may be served by publication of the summons. - § 183. How MADE — By delivery. Service of proc- ess by delivery by the sheriff, or by other person ap- pointed to make the service, of a copy of the summons to the defendant personally, is sufficient ;^ but a delivery of a copy of the summons to an agent of the defendant does not constitute a valid personal service.- Where the ser- vice of process is made by delivery of a copy of the sum- mons to the defendant personally by a person authorized by indorsement by the sheriff or other proper party, as 6 Jordan v. Giblin, 12 Cal. 100; i Kerr's Cyc. Cal. Code Civ. People V. De Bernal, 43 Cal. 385. Proc, 2d ed., § 411; Biennial Supp. See, also, post, §§ 193-206. 1915, p. 3058. T As to due service, see, ante, 2 Id., §412; Consolidated Supp. § 149. 1906-1913, p. 1438. s Smith V. Ellendale Mill Co., 4 i Brown v, Lawson, 51 Cal. 615; Ore. 70. Carter v. Daizy, 42 Miss. 501. 9 Spencer v. Houghton, 08 Cal. 2 Davidson v. Clark, 7 Mont. 100, 82, 87, 8 Pac. 679. 14 Pac. 663. 228 til- X.] PERSONAL SERVICE, HOW MADE. § 183 authorized by law, the service will be sufficient, altliouo-h the copy delivered was not certified and did not contain a copy of the indorsement of authorization to make the ser- vice." But the act of delivery of the copy of the summons must be with the avowed purpose of ser\dng the same; merely putting the defendant into unknowTi possession of a copy of the summons disguised and enveloped, does not constitute a valid service of process by delivery of a copy.-' Where a defendant served by delivery to him of a copy of the summons and a copy of the complaint returns them to the officer or person making the service without being informed that he is entitled to keep them, is an insufficient service.^ In those cases in which the person sought to be served refuses to receive the- copy of the summons presented for service from the sheriff or person appointed to serve the process, such officer or person may deposit the copy in any convenient place in the possession of the party sought to be served, doing so in his presence, w^here it will be most likely to come into his possession, and this will constitute a good and sufficient personal service.^ But forcibly thrusting it upon him is improper.' "Where, however, a defendant refused to receive a process, it was held that laying it on his shoulder was good ser- ^dce.^ If a copy of the summons, and a certified copy of the complaint, are personally delivered to the defendant, and issued from a court of general jurisdiction, the court thereby acquired jurisdiction of the person of the defen- dant.^ 3 Dresser v. Wood, 15 Kan. 344 Wis. 374, 23 N. W. 573; North v. (under Civil Code, § 64). Meader, 4 Sawy. 603, Fed. Cas. No. 4 Drake v. Duvenick, 45 Cal. 455; 10351; affirmed, 78 U. S. (11 WaH.) Bulkley v. Bulkley, 6 Abb. Pr. ^^2- ^^ ^- ^^- 1^4. (N Y ) 307 ■ ^ Davison v. Baker, 24 How. Pr. ' * , * (N. Y.) 30, 39. 5Beekman v. Cutler, 2 N. Y. „ n/, x. „ „ „ , _, „ ^, ^,., ' ^ sMartinv. Raffin,2Misc. (N.Y.) Code Rep. 51; Niles v. Vanderzee, ^^8, 23 N. Y. Civ. Proc 59 21 N Y 14 How. Pr. (N. Y.) 547. gupp. 1043; Bell v. Vincent, 7 Dow.' fi Davison v. Baker, 24 How. Pr. & Ry. 233. (N. Y.) 39; Borden v. Borden, 63 o Peck v. Strauss, 33 Cal. 678. 229 § 184 CODE PLEADING AND PRACTICE. [Pt. I, Mere irregularity in delivery of the copy of the sum- mons to the defendant served does not affect the juris- diction of the court over the person of such defendant ; it simply furnishes a ground for application by the defen- dant to the court to quash^'' the summons.^ ^ <§! 184. By READING. In the absence of statu- tory provision, personal service of process is required to be made, by the officer or person serving the same, by reading the summons to the defendant,^ and this alone is sufficient;- by service by leaving a copy of the summons with the defendant is insufficient.^ The reading may be by a special deputy ;^ but the whole of the summons must be read to the defendant in order to constitute a valid service, it not being sufficient to simply state to the defen- dant the important parts of the summons.^ It has been said that the reading must be to the defendant person- ally f but, on the other hand, it has been said that reading the summons to another by mistake, in the presence and hearing of the defendant, is sufficient, on the ground that what is read in the presence and hearing of several per- sons is read to all, even though the officer addresses only one of them especially.'^ In those cases in which, on the officer or person appointed to serve a process commencing to read the summons, the defendant refuses to hear its contents and walks away, a return shomng these facts has been said to constitute a sufficient service.^ 10 As to quashing summons, see, 3 Matthews v. Blosson, 15 Me. post, §§ 227 et seq. 400. 11 Peck V. Strauss, 33 Cal. 678. 4 Noleman v. Weil, 72 III. 502. 1 Ball V. Shattuck, 16 111. 290; 5 Crary v. Barber, 1 Colo. 172. Law V. Grommes, 158 111. 492, 41 6 Hynck v. Englest, 11 Iowa 210. N. E. 1080, reversing 55 111. App. ~ Metzger v. Huntington, 51 111. 312; Matthews v. Blosson. 15 Me. App. 3-77. 400. ^ Story v. Ware, 35 Miss. 399. 72 2 Klecker v. Lehigh County, 6 Am. Dec, 125; Staght v. Robbins, Whart. (Pa.) 66. 13 X. J. L. (1 Gr.) 340. 230 ell. X.] SERVICE BY TELEGRAPH. §§ 185, 186 Statute requiring delivery of copy^ to tlie defendant or leaving it at his residence or usual place of abode, service of process by reading the summons merely, is insuf- ficient;^" and where the statute pro\ddes that service of process shall be made (1) by reading to the defendant a copy of the complaint and a copy of the summons, or (2) by delivery to the defendant of a copy of each, service of a process by delivering a copy of the complaint to the defendant and reading to him a copy of the smumons, is an insufficient service.^ ^ §185. By telegraph. The California code provides that any summons requiring personal ser\dce, may be telegraphed for service in any place, and the telegraphic copy of such summons so transmitted may be served by the officer or person to whom it is sent for that purpose, and returned in the same manner, and with the same force and effect in all respects, as the original thereof might be if delivered to him, and the officer or person serving such telegraphic summons has the same authority, and is subject to the same liabilities, as if the copy were the original. The original summons must be filed in the court from which it was issued, and a certified copy thereof must be preserved in the telegraph-office from which it was sent. In sending such telegraphic copy the seal of the court is indicated by the word ''seal" or the letters ''L. S."^ § 186. Out of jurisdiction. The California code provides that where a defendant, on w^hom process is to be '■» As to service by delivery of (1) by producing the original writ copy, see, ante, § 183. and making known the contents 3 Newlove v. Woodward, 9 Neb. thereof, and (2) by leaving a copy; 502, 4 N. W. 237; Robbins v. Clem- where service is by making known mens, 41 Ohio St. 285; McCoy's it is not necessary to leave a copy. Heirs v. Crawford, 9 Tex. 353. — Skilton v. Mason, 24 Leg. Int. 11 Waddingham v. St. Louis, City (Pa.) 228. of, 14 Mo. 190. 1 Kerr's Cyc. Cal. Code Civ. Alternative service provides for Proc, § 1017. 231 § 186 CODE PLEADING AND PRACTICE. [Pt. I, served, resides out of the state, and that fact is made to appear by affidavit to the satisfaction of the court, or of a judge thereof; and it further appears from such affidavit, or from a verified complaint on file, that a cause of action exists against such defendant, or that he is a necessary or proper party to the action; or when it appears from such affidavit, or such verified complaint, that the action relates to or the subject of which is real or personal property within the state, in which such nonresident defendant has or claims a lien or interest, actual or contingent, therein, or when the relief demanded in the action consists wholly or in part in excluding such nonresident defendant from any interest therein, the court or judge may make an order directing that service of process be made upon such defendant by publication ;^ and that when publication of summons is ordered, the personal service of a copy of the summons and a copy of the complaint upon such defen- dant out of the state shall be equivalent to a publication of the summons and deposit of such publication in the post office.^ In Kansas, an early case^ holds that in making personal ser\dce of the summons out of the state it is not essential that a copy of the complaint or petition filed in the case should be served with the summons.'* Oklahoma has a statute^ somewhat similar to the Cali- fornia statute, under which it has been held to be essen- tial that the necessary affidavit shall be filed, summons issued, served, and due proof of such service made.^ 1 Kerr's Cyc. Cal. Code Civ. folk & C. Canal Co., 114 N. C. 8, Proc, 2d ed., §412; Consolidated 19 S. E. 106. Supp. 1906-1913, p. 1438. 3 xjnder laws 1871, ch. 113, § 1. 2 Kerr's Cyc. Cal. Code Civ. ^ ^ t, ., , 01 t^ oaa „ ,,„ i Case V. Bartholow, 21 Kan. 300. Proc, § 413. Attachment and publication void, ^ Comp. Laws 1909, § 5616. optional mode of serving by mail 6 State Bank of Addington v. will be invalid also. — Millen v. Nor- Lattimer (Okla.), 149 Pac. 1099. 232 ell. X.] CONSTRUCTIVE SERVICE. §§ 187, 188 § 187. Constructive or substituted service — In gen- eral. Constructive or substituted service of process is used in contradistinction from actual personal service.^ As thus used, constructive or substituted service includes (1) service of process by leaving a copy of the summons, and a copy of the complaint where that also is required, (a) at the residence or usual place of abode, or at the usual place of business of the defendant, and (b) leaving a copy of the summons with a person of suitable age and discretion f and also (2) service of process by publication, whether on resident or nonresident defendant,^ and (3) service of process by mailing copy of summons.^ It has been said, however, that when a copy of a summons regu- larly issued by the clerk of the court in a suit against a resident defendant, is left by the officer or person charged- with the service of process at the then abode of such defendant, this constitutes, not a constructive service, but an actual service of the process.^ In order to acquire jurisdiction by constructive service, the statute providing for such service must be strictly followed, and the mailing of the published summons therein prescribed is indis- pensable to the jurisdiction of the court.*^ <§! 188. 1. By leaving copy — Kansas. Under the Kansas statute/ service of process by leaving a copy of the summons at the usual place of residence of the defen- dant, is sufficient, being a personal service within the meaning of the law.- But in a case in which a man has left the state without an intention of ever again returning there to reside, service of process upon him by delivering 1 As to personal service, see, Commissioners v. Challiss, 65 Kan. ante, §§ 182-186. 179, 69 Pac. 173. 2 See, post, §§ 188 et seq. ^ Yarbrough v. Pugh, 63 V^ash. , , . ,. ^.. ,. 140, 33 L. R. A. (N. S.) 351, 114 3 As to service by publication, p q^o see, post, §§193-206. ,1. \ .,„„. , „„„ ., 1 Kan. Laws 1901, ch. 392, § 1. 4 See, post, § 192. 2 Atchison County Commission- r> Sturgis v. Fay, 16 Ind. 429, 79 ers v. Challiss, 65 Kan. 179, 69 Pac. Am. Dec. 440; Atchison County 173. 233 §§ 189, 190 CODE PLEADING AND PRACTICE. [Pt. I, a copy of tlie summons to liis wife, at his last place of residence within the state, is an insufficient service, be- cause after his removal from the state the defendant has no ''usual place of residence" within the state.* And the service of a process on a defendant by leaving a copy of the summons at a house in which he had household goods stored, but at which neither he nor his wife resided, though his wife had once temporarily lived there, is not a sufficient service, but void, under a statute permitting service of process by leaving a copy of the suimnons at defendant's residence, ''residence," as applying to ser- \ice of process, meaning "usual place of residence."* §189. Oregon. Under the Oregon statute providing that service of process should be made by delivering a copy of the summons to the defendant per- sonally, or if he could not be found, to some white person of the family, above the age of fourteen years, at the dwelling house or place of abode of the defendant, a return to a service "by delivering a copy to B, a white person, over the age of fourteen years, at the dwelling house of the defendant," shows an insufficient service because it does not appear from such return that the defendant could not be found for a personal service.^ § 190. Utah. Under the Utah laws,^ provid- ing that process may be served upon a defendant resident within the state (1) by serving personally on the defen- dant a copy of the summons, or (2) by leaving at his usual place of abode a certified copy of the summons, with some 3 Amsbaugh v. Exchange Bank, 519, 74 Pac. 327; Settlemier v. 33 Kan. 100, 5 Pac. 384. Sullivan, 97 U, S. 447, 24 L. Ed. 4 O'Neil V. Eppler, 90 Kan. 314, 111; Mickey v. Stratton, 5 Sawy. 133 Pac. 705. 475, Fed. Cas. No. 9530; Swift 1 Trullenger v. Todd, 5 Ore. 36; v. Meyers, 13 Sawy. 583, 27 Fed. Hass V. Sedlack, 9 Ore. 462, 464-6; 42. Hall V. Stevenson, 19 Ore. 157, i Utah Laws 1884, pp. 201, 202, 20 Am. St. Rep. 803, 23 Pac. 889; §268, subd. 8; Comp. Laws 1907, McFarlane v. Cornelius, 43 Ore. § 2984, subd. 8. 234 cIl. X.] CONSTRUCTIVE SERVICE. § 101 suitable person of at least fourteen years of age;- tlie term ''usual place of residence," as used in this statute, means the place where the defendant dwells or lives or abides at the time of the service, his then residence, the term not being synonymous with "domicile"; hence a service of process made upon a defendant by leaving a copy of the summons with his wife, at a house erected by her after he had left the state, with money provided by her husband, and which house was occupied by her alone as her residence and dwelling house and place of abode, her husband still being absent from the state, and never having resided in the house, is not a sufficient service under the statute to give the court jurisdiction of the person of the defendant.^ §191. Washington. Under the Washington statute,^ permitting an alternative service of process by leaving a copy of the summons and a copy of the com- plaint at the house of usual abode of the defendant, with a person of suitable age and discretion then residing therein, service of process on the defendant by delivery of a copy of the summons and a copy of the complaint to the defendant's clerk, at his place of business, is an insufficient service.- Service of process by delivery of copies of the summons and complaint to the defendant's wife, she being a person of suitable age and discretion, the delivery being made at the place of her residence, this will be a sufficient service, as it will be presumed that the wife resides with her husband, and that her residence was his residence,^ because a married man's ''house of usual abode," for the purposes of serving a summons, is the 2 Alternative writ of proliibition Stats., § 4875, Pierce's Code, §§ 332, may be so served. — People v. 333. House, 4 Utah 382, sub nom. Jones 2 Hoffman v. Spokane Jobbers' V. House, 4 Utah 382, 10 Pac. 843. Assoc, 54 Wash. 179, 102 Pac. 3 Grant v. Lawrence, 37 Utah 1045. 450, Ann. Cas. 1912C, 280, 108 Pac. 3 Powell v. Nolan, 27 Wash. 318, 931. 67 Pac. 712. 1 See Ballinger's Ann. Codes & In Oregon the return must show 235 § 192 CODE PLEADING AND PRACTICE. [Pt. I, house wherein his wife and family reside.* Where proc- ess was served upon a married woman by leaving copies of the summons and complaint with her husband, at a point about thirty feet from his residence, he announcing that the defendant-wife was not at home, was held to be a sufficient service.^ Service of process by a person other than the sheriff,^ upon a defendant who was absent from the county, by delivery of copies of the summons and complaint to the stepmother of the defendant, and re- questing that she deliver the same to the defendant on his return, was held to be a sufficient service, although the defendant did not return to the county and his home until after default judgment had been taken, and had no notice of the pendency of the action until such return.'^ The ground upon which this decision is based is the fact that the person serving the process, while the agent of the plaintiff for the purpose of making that service only, was without authority to vary the written terms and com- mands of the summons, unless such authority was specif- ically given. * § 192. 2. By mail, registered or otherwise. Where the statute^ provides for the service of process within the state by mail, persons resorting to that method of service vdW be held to a strict compliance with the pro- visions of the statute, and all abuses ^dll be carefully guarded against by the courts.- Where a process is served by mail, under the provisions of statute, the time of ser\dce begins to run from the day of depositing in the that the husband could not be 6 2 Ballinger's Ann. Codes & found.— See, ante, § 189. Stats., § 4874. ^Northwestern & Pac. Hy- " Washington Mill Co. v. Marks, potheek Bank v. Ridpath, 29 27 Wash. 170, 67 Pac. 565. Wash. 687, 70 Pac. 139. s Id; 5 State ex rel. Pacific Loan & i As Iowa Code 1854, § 2497. Invest. Co. v. Superior Court, 84 2 Smith v. Smith, 4 G. Greene Wash. 392, 146 Pac. 834. (Iowa) 266. 236 Ch. X.] SERVICE BY PUBLICATION, § 193 post office, not from the date of its receipt.^ Proceedings inaugurated by attachment and order of publication being void, service by the optional mode of mailing \vi\\ be invalid.^ Service of process by mail being provided for by the Oregon statute^ in those cases where the person for whom and on whom such service is made reside in different places within the state, between which places there is communication by mail, such a service of process will be insufficient where deposited in the mail at the place of residence of the person on whom the service is made.^ Under the Washington statute" providing that the sec- tions of the code authorizing the service of notices by mail shall not apply to original process, personal service of a summons can not be made by mail.^ Nonresident defendant being beyond the jurisdiction of the process of the court and of the laws of the state, it is beyond the power of the legislature to provide that there may be rendered a personal judgment against a nonresident defendant upon whom no personal service has been made within the state f hence an act providing for the service of summons upon nonresident defendants by registered mail, does not confer upon a court of the state jurisdiction, upon the ser\dce of process in such manner, to enter a personal judgment on a money demand. ^° § 193. 3. By publication — In general. There are statutes in all of the jurisdictions providing for the constructive service of process by publication in desig- nated cases, and in the manner pointed out in such stat- 3 Van Home v. Montgomery, 5 7 As 2 Ballinger's Ann. Codes How. Pr. (N. YJ 238. & Stats., § 4S93. 4 Mullen V. Norfolk & C. Canal ^ Bennett v. Supreme Tent of Co., 114 N C 8, 19 S E 106 Knights of Maccabees of the World, 40 Wash. 431, 2 L. R. A 5 Hills Ann. Laws of Ore., §§ 528, (^ s ) 389 82 Pac 744 529 9 See, ante, § 180. 237 fiFisk V. Hunt, 33 Ore. 424, 54 lo Long v. Clark (Ala.), 78 So. Pac. 660. 832 § 193 CODE PLEADING AND PRACTICE. [Ft. I, "utes. These statutes, being in contravention of the common law, must be strictly pursued,^ and their re- quirements scrupulously complied with,- in order to confer jurisdiction on the court over the person of a defendant residing -within the state. Nonresident defendant can be constructively served with process by publication in those cases in which a judgment is sought affecting his status, only; a statute attempting to confer upon a court jurisdiction over the person of a nonresident defendant, and power to enter a judgment in personam, by such a service of process is unconstitutional.^ Where the object of the action is to subject the property of the defendant within the state to execution issued on a judgment against him, such prop- erty must be attached at the inception of the proceeding. After attachment, and a publication of summons in the manner provided by statute, the action becomes, in effect, a proceeding in rem against the property attached, and the judgment is in rem against such property, and not in personam against the defendant, and is valid as to the 1 CAL.— Jorda»n v. Giblin, 12 Cal. 1 Pac. 221. MONT.— Alderson v. 100 •. People V. Huber, 20 Cal. 81; Marshall, 7 Mont. 288, 296, 16 Pac. Curran v. Shattuck, 24 Cal. 427, 576; Palmer v. McMaster, 8 Mont. 434; Ricketson v. Richardson, 26 186, 192, 19 Pac. 585. NEV.-Little Cal. 149. 87 Am. Dec. 164; Mc- ^- Carrie, 5 Nev. 90. 92; Roy v. 0-7 r. 1 oAA o^A Whitford, 9 Nev. 370, 373; Coffin Minn v. Whalen. 27 Cal. 300. 314; ' .oo \oa \o a „_ V. Bell, 22 Nev. 183, 184, 58 Am. Early v. Seaman, 30 Cal. 610, 617; ^^^ ^^^^ ^^^^ ^^^^ ^^ p^^ 241. Forbes v. Hyde, 31 Cal. 342, 351, uTAH— Park v. Higbee, 6 Utah ;356; Cohn v. Kemper. 47 Cal. 145; 45^4^ ^-^^^ £4 Pac. 524. FED.— Tracey, In re, 136 Cal. 385, 390, Galpin v. Page, 3 Sawy. 93. Fed. 69 Pac. 20; Columbia Screw Co. Cas. No. 5205. 85 U. S. (18 Wall.) V. Warner Lock Co.. 138 Cal. 445. 350, 369, 21 L. Ed. 959; Gray v. 71 Pac. 498; Livermore v. Ratti. Larrimore, 2 Abb. U. S. 542, 550, 150 Cal. 458, 465, 89 Pac. 327, 328; 4 Sawy. 638, 645, Fed. Cas. No. Hancock, Estate of, 156 Cal. 804, 5721. 810, 134 Am. St. Rep. 177.. 106 2 Yarbrough v. Pugh, 63 Wash. Pac. 58; Harris v. Morris, 3 Cal. 140, 33 L. R. A. (N. S.) 351, 114 App. 154. 84 Pac. 679. COLO.— Pac. 918. Isreal v. Arthur, 7 Colo. 5, 1 Pac. 3 See discussion and authorities, 438; Brown v. Tucker, 7 Colo. 30, ante, §§180, 191. 238 eh. X.] SERVICE BY PUBLICATION. §193 property actually seized, only ;* it is a nullity as to any personal claim f and when the attachment is in an action sounding in tort there can be no judgment.® A judgment rendered against a defendant not personally served with process, and whose property had not been attached, would be void for want of due process of law."^ This important doctrine has been established by the Supreme Court of the United States,'' and it is, of course, binding on all state courts, not\Adthstanding the statutes of many states, as in California, attempting to authorize a judgment against a person not served upon a mere publication of summons.* 4 Belcher v. Chambers, 53 Cal. 635; First Nat. Bank v. Eastman, 144 Cal. 487, 491, 103 Am. St. Rep. 95, 1 Ann. Cas. 626, 77 Pac. 1043. "j Belcher v. Chambers, 53 Cal. 635, 643; Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34, 13 Pac. 73; Loaiza v. Superior Court, 85 Cal. n, 28, 20 Am. St. Rep. 197, 206, 9 L. R. A. 376, 24 Pac. 707; Smith V. Supreme Lodge A. O. U. W., 12 (';■!. App. 190, 106 Pac. 1103. !■' Mudge V. Steinhart, 78 Cal. 34, 39, 12 Am. St. Rep. 17, 21, 20 Pa:^. 147. 7 As to "due process of law," see, supra, § 157. s Pennoyer v. Neff, 95 TJ. S. 714, 728, 24 L. Ed. 565, 571-2; Hart V. Samson, 110 U. S. 151, 28 L. Ed. 101, 3 Sup. Ct. Rep. 586; Bigelow V. Old Dominion Copper Min. & Smelt. Co., 225 U. S. 136, 56 L. Ed. 1025, Ann. Cas. 1913E, 875, 32 Sup. Ct. Rep. 641; Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 193, 194, 59 L. Ed. 912, 35 Sup. Ct. Rep. 579; New York Life Ins. Co. V. Dunlevy, 241 U. S. 521, 60 L. Ed. 1143, 36 Sup. Ct. Rep. 613. 9 See authorities, footnote 5, this section; also: Jas. Joseph & Bros. Co. V. Hoffman, 173 Ala. 573, Ann. Cas. 1914A, 718, 38 L. R. A. (N. S.) 924, 56 So. 218; Denny v. Ashley, 12 Colo. 165, 20 Pac. 331; Kerns v. McAulay, 9 Idaho 565, 69 Pac. 540; Smith v. Montoya, 3 N. M. 13, 1 Pac. 175; McKinney V. Collins, 88 N. Y. 216. See numerous cases cited in Rose's Notes to U. S. Reps., vol. 9, pp. 1102-1113. Provision for proceedings in personam contained in California Code Civil Procedure, § 412, relat- ing to publication of summons against nonresident, does not ren- der the section invalid as to pro- ceedings in rem. — P e r k i n s v. Wakeham, 86 Cal. 5S0, 21 Am. St. Rep. 67, 25 Pac. 51. Foreclosure of mortgage is in its nature a proceeding in rem against the mortgaged rroperty, and summons may be served on a nonresident by publication. — La Fetra v. Gleason, 101 Cal. 246, 36 Pac. 765. But deficiency judgment against mortgagor can not be rendered when service of process by pub- lication. — Rlumberg v. Birch, 99 Cal. 417, 37 Am. St. Rep. 08. !39 § 194 CODE PLEADING AND PRACTICE. [Pt. I, § 194. In Califoknia — In general. Under the California statute providing for the service of process by the publication of summons, this method of service of process may be resorted to in five classes of cases, as fol- lows: (1) When the person upon whom the service is to be made resides out of the state ; or residing within the state (2) has departed from the state, or (3) can not, after due diligence, be found within the state, or (4) con- ceals himself to avoid the service of summons, or (5) is a foreign corporation having no managing or business agent, cashier or secretary, or other officer upon whom service of process may be made who, after due diligence, can not be found within the state.^ The existence of any one of these conditions is not alone sufficient; it must be made to appear by affidavit to the satisfaction of the court, or of the judge thereof.^ In addition thereto, it must also appear by affidavit, or by the verified com- plaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action.^ There is no provision that a judge may order a summons to issue ; his only power is to order a summons, which has already issued, to be served in a particular manner.* No presumption in favor of jurisdiction acquired by pub- lication of summons will be indulged.^ The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to 1 Kerr's Cyc. Cal. Code Civ. 5 McMinn v. Whalen, 27 Cal. Proc, 2d ed., §412; Consolidated 309; Wortman v. Wortman, 17 Supp. 1906-1913, p. 1438. Abb. Pr. (N. Y.) 66; Fiske v. An- Section not invalid because in- derson, 33 Barb. (N. Y.) 71, 12 eluding provisions regarding pro- Abb. Pr. 8; Cook v. Farren, 34 ceedings purely in personam. — Barb. (N. Y.) 95, 12 Abb. Pr. 359, Perkins v. Wakeham, 86 Cal. 580, 21 How. Pr. 286, affirming 11 Abb. 21 Am. St. Rep. 67, 25 Pac. 51. Pr. 40; Hallett v. Rigbters, 13 2 § 412, cited footnote 1, this sec- How. Pr. (N. Y.) 43; Kendall v. tion. Washburn, 14 How. Pr. (N. Y.) 3 Id. 380; Titus v. Relyea, 16 How. Pr. 4 People V. Huber, 20 Cal. 81. (N. Y.) 371. 210 oil. X.] AFFIDAVIT FOR PUBLICATION. §195 be served, and for such length of time as may be deemed reasonable, at least once a week ; but publication against a defendant residing out of the state or absent therefrom must not be less than for two months. If the place of resi- dence of a nonresident or absent defendant is known, the order must direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the state is equivalent to publication and deposit in the post-office, and in either case the service of the summons is complete at the expira- tion of the time prescribed by the order for publication.^ The court having jurisdiction of the subject-matter of the action, it has authority to pass upon the question whether it has acquired jurisdiction over the person or the res by the service of process by publication.'^ § 195. Affidavit for order of publica- tion — Necessity for. Before an order for the service of process upon a defendant by publication of the summons can be made, it must appear to the satisfaction of the court or of the judge thereof, by affidavit, that one or more of the occasions on which service of process by pub- lication may be made, as set out in the preceding section, exists ;^ and in addition thereto it must also appear from 6 Kerr's Cyc. Cal. Code Civ. Coldren, 51 Colo. 115, 117 Pac. Proc, § 413. 1005; McKnight v. Grant, 13 Idaho 7 Mines D'Or de Quartz Moun- 640, 121 Am. St. Rep. 287, 92 Pac. tain Societe Anonyme v. Superior 991; Harris v. Claflin, 36 Kan. Court, 91 Cal. 101, 27 Pac. 532. 543, 13 Pac. 830; Grouch v. Martin. 1 Kerr's Cyc. Cal. Code Civ. 47 Kan. 313, 27 Pac. 985; Ballew Proc, 2d ed., §412; Consolidated v. Young, 24 01§ 220. Persons who may object. It is usually re- garded that a defect in an original process, or a defect or irregularity in the service thereof, is a matter purely personal to the party aggrieved thereby, and that a stranger can not be heard to object because thereof;^ and that when there is an improper or an insufficient service on one of the parties to an action, any other party to the action will not be heard to object because thereof.- Thus, it has been said that where the sheriff's return shows due personal service, and is regular on its face, a codefendant may not raise the question of the sufficiency of the sher- iff's return.^ But, on the other hand, it has been held that objection for want of due publication against an absent defendant may be made by other defendants who may be affected adversely by any judgment or decree against him.* § 221. Necessity for objection. In those cases in which there is a defect or irregularity, or other infirmity, in either the process or in the service of the summons, timely objection must be made^ in the proper manner,- otherwise there will be a waiver^ of the defect, irregular- ity or other infirmity."* Thus, a return to service of proc- ess can not be attacked for fraud or mistake, unless the 7 Waters v. Waters, 7 Misc. 77 Pac. 712; Bank of Tennessee v. (N. Y.) 519, 27 N. Y. Supp. 1004. Anderson, 35 Tenn. (3 Sneed) 669. 3 B. F. Salzer Lumber Co. v. Lindenmeier, 54 Colo. 491, 131 Pac. 442. 1 Return by deputy in own name 4 McCoy's Ex'r v. McCoy's De- instead of in the name of the of- visees 9 W Va 443 ficer for whom he acts in making j ^g ^^ ^j^g ^hen objection to a personal service of process, ob- j^g taken, see, post, § 225 jection on ground of the irregu- . ^^g to mode and sufficiency of larity can not be made by a stran- objection, see, post, §§ 222-224. ger to the judgment rendered.— . ^s to waiver, see, post, § 239. Hill V. Gordon, 45 Fed. 276. 4 Pennington v. Gillaspie. 63 W. 2 Adams v. Hopkins, 144 Cal. 19. Va. 551, 61 S. E. 416. 277 As to jurisdictional defects, see, ante, § 38. § 222 CODE PLEADING AND PRACTICE, [Pt. I, fraud or mistake is pleaded f and where a party is sued by a wrong name,® and fails to appear and plead the misnomer, he is concluded, and in all the further proceed- ings he may be connected wdth the judgment by proper averments.^ <^ 222. Mode op objecting and sufficiency theeeof — In general. An objection to the form sufficiency and regularity of a process, or of the service or the return of service, must be made in the proper manner as well as at the proper time.^ A service of process may be suf- ficient to give the court jurisdiction and yet be open to attack on other jurisdictional grounds ;2 as where the affidavit for service of process by publication of the sum- mons is made by an agent of the plaintiff and states (1) that the defendant is a nonresident of the state and (2) that his place of residence is unknown to the affiant, where the place of residence of the defendant could have been learned by reasonable diligence.^ Under the old practice, a defect or irregiilarity in a writ of process, or in the service thereof, which w^as amendable, could not be taken advantage of by general demurrer,^ and under the New York Code of Procedure 5 Everett v. Ragan, 1 Ky. L. Rep. 4 Marcus v. Rovinsky, 95 Me. 421. 106, 49 Atl. 420; Cooke v. Gibbs, 3 6 As to misnomer and proceed- Mass. 193; Smith v. Dexter, 121 ings therefor, see, post, § 658. Mass. 597, T Vogel V. Brown 112 Ind 292, 2 ^ ^ Philadelphia Co., Am. St, Rep 187, 14 N. E..^ ^^ ^^^ ^^ ^^ . As to t.me -'^-"J>^^1^°" Rep, 941, 943, 1 Ann, Gas, 225. 63 should be made, see, post, §225. V, a cqa ^c q t5^ -rr See, also, footnote 10, this sec- L. R. A. 896, 46 S. E. o66. ^Qj^ Variance between complaint and •2 Leibhardt v. Lawrence. 40 process in that the summons does Utah 243, 120 Pac. 215; Cohn v. not describe the defendant as a Lawrence, 40 Utah 264, 120 Pac. corporation, advantage thereof can 223. be taken by plea in abatement 3 Leibhardt v. Lawrence, 40 only, not by demurrer.— See, post, Utah, 243, 120 Pac. 215. § 223. 278 ch. XI.] MODE OF OBJECTING. § 222 can not be by an answer to tlie merits.^ It was required to be by plea in abatement,^ unless the defect was appar- ent upon the face of the record,' in which latter case it was required to be by motion to quash or set aside the summons or the service thereof, as the case might be.* The pleas in abatement and in bar were required to follow each other.^ Legality and sufficiency of an affidavit for service, under the California Practice Act, could be called in question only by a motion made in the action, or by appeal supported by a statement.^'^ Under procedural codes it is generally required that the objections shall be raised by demurrer or answer; and we shall see, when we come to treat of the pleadings, that but one answer is contemplated by such codes, and that the defendant is required to set up all his defenses, or all the defenses he elects to rely upon, in that one answer. Matters in abatement are regarded as much a defense as matters in bar. A plea to the merits no longer waives the objections formerly taken by plea and motion, provided these matters are properly pleaded in the answer. This is the doctrine early laid down in the cases in New York,^^ Indiana,^- Wisconsin, ^^ and perhaps else- where, and by statute in lowa.^^ Thus, in a recent New York case it is held that an objection because of want in the court of jurisdiction over the subject-matter of the 5 Nellis V. Rowles, 41 Misc. affirming 10 How. Pr. 40; Gardner (N. Y.) 313, 84 N. Y. Supp. 753. v. Clark, 21 N. Y. 399; Bridge v. t! As to plea in abatement, see, Payson, 7 N. Y. Super. Ct. Rep. (5 post, §223. Sandf.) 210; Gardiner v. Clark, 6 7 Cooke V. Gibbs, 3 Mass. 193; How. Pr. (N. Y.) 449; King v. Van- Smith V. Dexter, 121 Mass. 597. derbilt. 7 How. Pr. (N. Y.) 38'). s As to motion to quash or set iJ Thompson v. Greenwood, 28 aside summons or the service Ind. 327; I3ond v. Wagner. 28 Iiid. thereof, see, post, § 224. 462. ■J Stephen's Pleading, p. 430. i3 Freeman v. Carpenter, 17 Wis. 10 Sharp v. Daugherty, 33 Cal. 126; Dutcher v. Butcher, 39 Wis. 505. 651. 11 Sweet V. Tuttle, 14 N. Y. 405, i4 Iowa Code 1873, § 2732. 279 ^223 CODE PLEADING AND PRACTICE. [Ft. I, action, must be raised by demurrer or answer and not by motion to quash or set aside the summons. ^^ In Alaska, Missouri and Oregon, however, a differ- ent doctrine obtains. In Missouri the common-law rule that defenses in abatement are waived by pleading to the merits is enforced ;'^*^ and in Oregon, an answer in the nature of a plea in abatement, is required to be pleaded separately from, and disposed of before, a plea in bar or answering to the merits,^' and if not pressed before either of the latter is presented, is regarded as being waived.^^ The Oregon rule seems to have been adopted in Alaska. ^^ § 223. By plea. It was formerly the rule, which seems to have been still retained in some jurisdictions, that a plea in abatement was the proper method in which to raise objection to the legality of the issuing of, or of the ser\dce of, a process,^ although it might also be raised by a motion to quash or set aside.- The return of process 15 Mabon v. Ongley Electric Co., 24 App. Div. 50, 48 N. Y. Supp. 973; judgment reversed on another point, 156 N. Y. 196, 5 N. Y. Ann. Cas. 398, 50 N. E. 805. le Rippstein v. St. Louis Mut. L. Ins. Co., 57 Mo. 86, and Fordyce v. Hathorn, 57 Mo. 120, following Cannon v. ^McManus, 17 Mo. 345. 1" Hopwood V. Patterson, 2 Ore. 49, 51; Oregon Cent. R. Co. v. Waite, 3 Ore. 91, 95-6; Oregon Cent. R. Co. v. Scoggin, 3 Ore. 161; Derkeny v. Belfils, 4 Ore. 259; Bridal Veil Lumber Co. v. Johnson, 25 Ore. 108, 34 Pac. 1027; Cham- berlin v. Hibbard, 26 Ore. 433, 38 Pac. 438; Morgan's Estate, In re, 46 Ore. 242, 78 Pac. 1030; Curtze X. Iron Dyke Copper Min. Co., 46 Ore. 607, 81 Pac. 815, 817; McClung V. McPherson, 47 Ore. 86, 82 Pac. 13; Lassas v. McCarty, 47 Ore. 447, 84 Pac. 78; Wythe v. Myers, 3 Sawy. 595, 600, Fed. Cas. No. 18119; Oregon R. Co. v. Oregon R. & Nav. Co., 10 Sawy. 464, 469, 22 Fed. 248. Matter in abatement not pleaded is waived. — Derkeny v. Belfils, 4 Ore. 258; Bump v. Cooper, 20 Ore. 529, 26 Pac. 489; Bridal Veil Lum- ber Co. V. Johnson, 25 Ore. 108, 34 Pac. 1027; Morgan's Estate, In re, 46 Ore. 242, 78 Pac. 1030; McClung V. McPherson, 47 Ore. 86, 82 Pac. 13. 18 Oregon Cent. R. Co. v. Waite, 3 Ore. 91, 95-6; Bridal Veil Lumber Co. V. Johnson, 25 Ore. 108, 34 Pac. 1027; Oregon R. Co. v. Ore- gon R. & Nav. Co., 10 Sawy. 464, 22 Fed. 248. 10 See Elliott v. Kuzek, 2 Alaska 589. 1 Lane Bros. & Co. v. Bauser- man, 103 Va. 146, 106 Am. St. Rep. 872, 48 S. E. 857. 2 Id. See, also, post, § 224. 280 ch. XI.] OBJECTION — BY MOTIOX. §224 being void on its face, objection was required to be by plea;^ but the return could not be falsified by such plea."* The objection being founded upon extrinsic facts, it had to be taken by plea;^ but when facts on which objection based appeared in face of record, proper method was by motion to dismiss,^ and not by plea in abatement." Vari- ance between process and complaint could be taken by plea in abatement only, and at the proper time, anj a failure to insert the names of all the parties.^'* Addressed to sound discretion of court, are all motions to quash or vacate a process, or a service of process; a refusal of the motion will not be disturbed on appeal in the absence of an abuse of discretion,^^ but where denied, 5 Necessity of motion to quash App. Div. (N. Y.) 617, 76 N, Y. -where the proceedings quasi in Supp. 102. rem, and not service sufficient to lo Earth v. Marcus, Howell N. P. confer jurisdiction on the court. — (Mich.) 11. Mosher v. Banking House of Bar- ii Motion to set aside service, tholow, Lewis & Co., 6 Mo. App. and not motion to dismiss the 599. cause, proper remedy. — Cooper v. G Parltner v. Wardner, 2 Idaho Wyman, 122 N. C. 784, 65 Am. St. (Hash.) 285, 13 Pac. 172. Rep. 731, 29 S. E. 947. 7 Foster V. Markland, 37 Kan. 32, i^ Farrington v. Muchmore, 30 14 Pac. 452. Misc. (N. Y.) 218, 62 N. Y. Sup. Must be timely, too late after 165. K'^ judgment or decree; then the 1 3 Farrington v. Muchmore, judgment or decree itself must be App. Div. (N. Y.) 247, 65 N. Y. attacked directly. — Baldwin v. Supp. 8. Burt, 54 Neb. 287, 74 N. W. 594. i-* Jerauld County v. Williams, 7 s Levy v. Pilger, 59 Neb. 561, 81 S. D. 196, 63 N. W. 905. N. W. 507. 15 Kennedy v. Mulligan, 136 Cal. 9 Boyle & Everts Co. v. Fox, 72 556, 69 Pac. 291; Teinolat v. S. J. 282 eh. XI.] OBJECTION — TIME OF TAKING. § 225 defendant may answer to the merits without waiving the benefit of his exception to the order denying the motion ;^^ but it has been held otherwise in Colorado/^ Oregon/^ and Wisconsin. ^^ § 225. Time when objection to be taken. It is the general rule in all jurisdictions, alike under the old prac- tice and under the procedural codes, that timely objection must be made to a process defective, irregular or insuf- ficient, or to a service of a summons which is defective or insufficient or illegal, but remediable, — that is, upon the first opportunity,^ otherwise the defect will be deemed Held Co., 17 Misc. (N. Y.) 556, 4 N. Y. Supp. 692. ic Lyman v. Hamilton, 44 Cal. 630; Kent v. West, 50 Cal. 185, 186; Arroya Ditch & Water Co. V. Superior Court, 92 Cal. 47, 52, 27 Am. St. Rep. 94, 28 Pac. 54; McDonald v. Agnew, 122 Cal. 448, 450, 15 Pac. 125; Black v. Clen- denin, 3 Mont. 44, 49; Miner v. Francis, 3 N. D. 549, 553, 58 N. W. 343; Kinkade v. Myers, 17 Ore. 470, 472, 21 Pac. 557; Benedict v. .lohnson, 4 S. D. 387, 392, 57 N. W. 66; Fisher v. Crowley, 57 W. Va. 319, 4 Ann. Cas. 2S2, 50 S. E. 424; Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Lung Chung v. Northern Pac. R. Co., 10 Sawy. 17, 20, 19 Fed. 254, 256. Compare: Clark, In re, 125 Cal. 388, 392, 58 Pac. 22. IT Union Pac. R. Co. v. De Busk, 12 Colo. 294, 297, 13 Am, St. Rep. 223, 20 Pac. 752. IS I n Oregon, discussing the question, and holding adversely to the doctrine laid down in the text. Lord, J., writing the opinion, says: "I am not entirely satisfied that an answer to the merits waives an objection duly made to an illegal service of a summons which is questioned by a special appear- ance; but it is thought by the court that the better reason is with those authorities which hold that a party waives his objections to a defective summons, or a de- fective service of a legal sum- mons, whether overruled or not, when he subsequently appears generally and defends the action." — Sealy v. California Lumber Co., 19 Ore. 94, 96, 24 Pac. 197, 198. 19 Corbett v. Physicians' Cas- ualty Assoc, 135 Wis. 505, 513, 16 L. R. A. (N. S.) 177, 115 N. W. 365, holding that where party goes to trial on the merits after objection to service of process, he thereby waives objection of the defects, and can not afterwards question the jurisdiction of the court. 1 Pittman v. .Jones, 53 Ga. 134; Reynolds v. Atlantic Nat. B. & L. Assoc, 104 Ga. 703. 30 S. C. 942; Grand Lodge, Brotherhood of Locomotive Engineers, v. Cramer, 60 111. App. 212; Miller v. Green, 1 Rlackf. (Md.) 469; Stevens v. Getchell, 11 Me. 443; Whiting v. Hoilister, 2 Mass. 102; Gilbert v. Nantucket Bank, 5 Mass. 97; C:r- 28^ §226 CODE PLEADING AND PRACTICE. [Pt.I, to have been waived;- such objection can not be raised after trial.^ Where the objection is to a defect that is jurisdictional,^ it may be made at any time ; e. g., where there was no copy of the process accompanying the ser- vice of the copy of the complaint f where the process was without the seal of the court;'' where it appears from the record that the process was served in territory to which it did not run,^ and the like. <^ 226. Quashing or setting aside process or service THEREOF — In general. Iu the practice under procedural codes, as well as under the old practice, a defective or irregular or insufficient process, or a defective or insuf- ficient or illegal service thereof, may be quashed or set aside. A motion to quash applies to existing writs of process and not to mere applications therefor;^ and it has been said that where a plea in abatement has been penter v. Aldrich, 44 Mass. (3 Mete.) 58; Foote v. Knowles, 45 Mass. (4 Mete.) 386; Brewer v. Sibley, 54 Mass. (13 Mete.) 175; Stilson V. Greeley, 2 Mich. N. P. 222; Wooten v. Wingate, 14 Miss. (6 Smed. & M.) 271; Baldwin v. Burt, 54 Neb. 287, 74 N. W. 594; Avogardo v. Bull, 4 E. D. Smith (N. Y.) 384; Jlunter v. Lester, 10 Abb. Pr. (N. Y.) 260, 18 How. Pr. 347; Pollard v. Union Pac. R. Co., 7 Abb. Proe. N. S. (N. Y.) 70; Willet V. Stewart, 43 Barb. (N. Y.) 98; Ahner v. New York, N. H. & H. R. Co., 20 N. Y. Civ. Proe. Rep. 318, 14 N. Y. Supp. 365; Penning- ton V. Gillaspie, 63 W. Va. 551, 61 S. E. 416. 2 As to waiver, see, post, § 239. 3 Patmore v. Rambauer, 41 Kan. 295, 21 Pac. 284; Sanders v. Cir- cuit Court, 3 Ky. (1 Hardin) 17; McLeod V. Harper, 43 Miss. 42; Baldwin v. Burt, 54 Neb. 287, 74 N. W. 594; M.vers v. Overton, 4 E. D. Smith (N. Y.) 428, 2 Abb. Pr. 344; Hunter v. Lester, 10 Abb. Pr. (N. Y.) 260, 18 How. Pr. 347; Pennington v. Gillaspie, 63 W. Va. 551, 61 S. E. 416. After decree entered and sale made, motion to quash by person made a party but not served with process, is not the proper remedy; the decree should be attacked directly. — Baldwin v. Burt, 54 Neb. 287, 74 N. W. 594. 4 As to jurisdictional defects, see, ante, § 38. 5 Brady v. Hardeman, 17 Ga. 67, 6 Tibbetts v. Shaw, 19 Me. 204. 7 Turrill v. Walker, 4 Mich. 177. 1 People V. New York C. & H. River R. Co., 28 Hun (N. Y.) 543, 2 N. Y. Civ. Proe. Rep. (McCarty) 345, 3 N. Y. Civ. Proe. 11, reversing 2 Civ. Proe. Rep. (Browne) 82, 63 How. Pr. 291; People v. New York, L. E. & W. R. Co., 2 N. Y. Civ. Proe. (McCarty) 345. 284 ell. XL] SETTIXG ASIDE SERVICE. § 226 held to be insufficient on demurrer, a motion to quash, based on the same grounds, will not be entertained.^ The merits of the plaintiff's cause are not involved on a mo- tion to quash a process or the service thereof," conse- quently a final judgment against the plaintiff on quashing the process, or its service, is error. ^ The fact that a de facto clerk issuing a process has no title to the office, is not ground for quashing the same.^ A mere clerical error in the process, consisting in stating that the complaint was filed on March twentieth instead of on February twentieth, where the process was issued and served on the twentieth day of February, is not ground for quashing the process or the service thereof.^ The process served by a person not having authority under the law to do so, the court acquires no jurisdiction, and the summons and service thereof will be set aside on motion." On motion to quash or set aside an alias summons, the defendant is entitled to show, by affidavit, that the cause had been dismissed because of a failure of the plaintiff to use due diligence in causing the writ of process to be issued.^ Common counts being held to be permissible under some of the procedural codes, by reason of unwarranted 2 Grand Lodge of Brotherhood ville & N. R. Co. v. Greenbrier of Locomotive Firemen v. Cramer, Distillery Co., 170 Ky. 775, 187 164 111. 9, 45 N. E. 165. S. W. 296. 3 Montgomery v. Boyd, 65 App. 4 Burnett v. Manifee, 4 Ark. (4 Div. (N. Y.) 128, 10 N. Y. Ann. Cas, Pike) 140. 279, 72 N. Y. Supp. 611; Meaney 5 Harbaugh v. Winsor, 38 Mo. V. Way, 108 App. Div. (N. Y.) 290, 327. 95 N. Y. Supp. 745; Thorburn v. 6 Western Union Tel. Co. v. Gates, 171 N. Y, Supp. 568; Em- Johnson, 16 Tex. Civ. App. 546, 41 bree v. McLennan, 18 Wash. 657, S. W. 367. See Alford v. Hoag, 8 52 Pac. 241. Kan. App. 141, 54 Pac. 1105. See, also, post, § 228, footnote See, also, post, § 228, footnote 4. 4. "> Winterroth v. Minschlag, 68 Misjoinder of action and mis- App. Div. (N. Y.) 324, 74 N. Y. joinder of parties, are not defects Supp. 124. which can be raised on motion to 8 Parsons v. Hill, 15 App. D. C. quash service of summons. — Louis- 532. §227 CODE PLEADING AND PRACTICE. [Ft. 1, construction of the court,'-* it is thought that in such juris- dictions, where there are two or more defendants, and the cause of action is on a contract upon which one of the defendants is not liable under the statute, — e. g., a mar- ried woman on her note, — and the complaint also contains the common counts, that the summons should not be quashed.^" Objection to sustaining motion to quash must be timely taken, ^^ or right to a rehearing of the motion will be lost.'- §227. The process. It has been said that wiiere the process is irregular, or defective, the remedy, if any, is by application to the trial court to quash or set aside the summons.^ The clerk of the court being without authority or power under the statute- to issue process until the complaint is filed in his office, a summons issued and served before the complaint is filed will be quashed on motion.^ A failure of the process to state all the relief demanded in the complaint wdll not be a ground for quashing the summons in those cases in which a copy of the complaint is served with the copy of the summons.* 9 See, ante, § 26. 10 See Harvard Pub. Co. v. Ben- jamin, 84 Md. 333, 57 Am. St. Rep. 402, 35 Atl. 930. 11 As to timely objection gen- erally, see, ante, § 225. ii! Cannon v. Binney, 6 Kan. •App. 188, 51 Pac. 298. 1 Parke v. Wardner, 2 Idaho 263, 13 Pac. 172. See Behlow v. Shorb, 91 Cal. 141, 145, 27 Pac. 546. See, also, cases cited in foot- note 14, this section. Initials of Ciiristian name, only, given of plaintiff's name, defen-. clant on motion to quash or set aside the process should make a showing of plaintiff's true name. — Newton v. Magee, 31 S. D. 210, 140 N. W. 252. Under Colorado practice, it is not sufficient ground to quash a summons that it was signed by the attorneys of the plaintiff, and was not under the seal of the court. — Comet Consol. Min. Co. v. Frost, 15 Colo. 310, 25 Pac. 506; Rand v. Pantagraph Co., 1 Colo. App. 270, 28 Pac. 661. 2 As under Okla. Comp. Laws 1909, §§ 5591, 5593. 3 Atchison, T. & S. F. R. Co. v. Lambert, 31 Okla. 300, Ann. Cas. 1913E, 329, 121 Pac. 654. 4 Sage Inv. Co. v. Haley, 59 Colo. 504, 149 Pac. 437. See Higley V. Pollock, 21 Nev. 19S, 27 Pac. 895. 286 ell. XI.] QUASHING PROCESS. § 227 The fact that tlie process is addressed to the sheriff, in an action in wliich he is a party, but delivered to the coroner for service and served by him, under a statute providing that when the sheriff is a party to the action process shall be served by the coroner,-^' has been said to be irregular, and that the summons will be set aside on motion.^ Wliere the defendant is shown to have been and still is a resident of the state, an affidavit for service of process by publication of summons will be quashed." Fraud and deceit employed^ to inveigle a defendant within the jurisdiction of the court for the purpose of instituting suit and securing service of process on him within such jurisdiction, the summons will be quashed or set aside.® Variance behveen process and complaint is a defect which can not be reached by a motion to quash the sum- mons.^*^ Thus, where the process varied from the com- plaint in respect to the demand of the plaintiff,^^ the process setting out that the plaintiff claimed a specified amount as due under a contract of employment, specify- ing the terms of such contract, and the complaint set up a contract of employment, and the loss of wages through wrongful discharge, and alleging a refusal to pay ''said wages," but demanded a sum in excess of the \vages under the contract for the time described, and in excess of the sum stated in the summons, the court held that, under a statute^^ requiring defects in pleading and pro- ceeding, not affecting substantial rights, to be disre- 5 As Kan. Code Civ. Proc, § 701. Mfg. Co., 37 Kan. 523, 15 Pac. 6 Pelham v. Edwards, 45 Kan. 562. 547, 26 Pac. 41. See, ante, § 213, footnote 7. 7 Talbert v. Paden, 30 Olda. 403, lo Jones v. Cox, 7 Mo. 173; Fi-ee- 121 Pac. 212. man v. Camden, 7 Mo. 298. 8 As to fraud in procuring ser- n As to the demand to be stated vice of process, see, ante, § 213. in summons, see, ante, § 137. Van Horn v. Great Western i-'Colo. Civ, Code, §§78, 443, 287 §228 CODE PLEADING AND PRACTICE. [Pt. I, garded, the summons could not be quashed or set aside because of the variance.^* Stay of proceedings not worked by notice of motion to quash summons, nor an extension of the time in which to appear and answer specified in the summons,^* and under a statute providing that if the defendant fails to appear and answer, the clerk of the court may, on request, enter default, and where the demand is for a money judgment, may enter judgment against the defendant, the clerk of the court may enter judgment notwithstanding the pen- dency of a motion to quash the summons. ^^ §228. The ser\t:ce or summons — Personal serv- ice. The process may be in all respects regular and suf- ficient, but the service thereof may be irregular or insufficient or illegal, or there may be jurisdictional de- fects ,^ in either of which cases, it seems, objection may be taken by motion to quash or set aside the service of the summons, where the objection is timely taken. ^ Thus, 13 Rich V. Collins, 12 Colo. App. 511, 56 Pac. 207. In Nevada, under a similar statute, the same rule is applied. — See Higley v. Pollock, 21 Nev. 198, 27 Pac. 895. 14 Shinn v. Cummins, 65 Cal. 97, G8. 3 Pac. 133; McDonald v. Sweet, 76 Cal. 258, 18 Pac. 324; California Imp. Co. V. Baroteau, 116 Cal. 136, 138, 47 Pac. 1018; Mantle v. Casey, 31 Mont. 414, 78 Pac. 593; Higley V. Pollock, 21 Nev. 198, 27 Pac. 895; Garvie v. Greene, 9 S. D. 608, 609, 70 N. W. 847. 15 Higley v. Pollock, 21 Nev. 198, 27 Pac. 895. 1 As to jurisdictional defects, Bee, ante, § 38. 2 Karosas v. Susquehanna Coal " Co., 172 App. Div. (N. Y.) 873, 158 N. Y. Supp. 1021. California doctrine is that a de- fendant wishing to test the suf- ficiency of the service of process must appear and make the appro- priate motion at the trial. — Drake V. Duvenick, 45 Cal. 455; Brum V. Ivins, 154 Cal. 17, 129 Am. St. Rep. 137, 96 Pac. 876; McGinn v. Rees, 33 Cal. App. 291, 294, 165 Pac. 52. — Motion to quash service of process and not motion to dismiss the cause is the proper remedy. — Roberts v. Superior Court, 30 Cal. App. 714, 159 Pac. 465. Clerk without authority to issue summons, its service will be quashed on motion. — Atchison, T. & S. F. R. Co. v. Lambert, 31 Okla. 300, Ann. Cas. 1913E, 329, 121 Pac. 654. Plaintiff's right of action barred by limitation of statute if service of summons upon defendant set 288 ch. XI.] QUASHING SERVICE. § 228 where suit is instituted in the wrong county under statu- tory provision, — e. g., suit for divorce, in Oregon, — the proper method to raise the objection is by motion to quash, supported by affidavit.^ But the sufficiency of the complaint can not be questioned on a motion to quash or set aside service of summons.^ It is the irregularity or insufficiency or illegality of the service of process that is raised by a motion to quash such service, and the duty rests upon the defendant to point out the irregularity or insufficiency or illegality which renders the service void- able.^ The fact that the process designates the defen- dants by supposed names, their real names being un- known, is not ground for quashing the service of the summons,® the remedy for the defect is a plea of mis- nomer; and a return to a process shomng service upon the defendant by the initials of his Christian name, merely, will not be quashed or set aside unless it is made to appear that such initials are not defendant's full iiame.'^ However, an officer's return to process may be (|uestioned by motion to quash the service, supported by affidavit;^ but where the return of the sheriff showed that a copy of the complaint was served with a copy of the summons, on a motion to quash the service, on the alleged aside, court should be satisfied 5 Smith v. Delane, 74 Neb. 594, service was clearly insufficient be- 104 N. W. 1054. fore granting the motion. — Wolski Defects not pointed out in V. Booth, 93 Misc. (N. Y.) 651, 157 motion to quash service of sum- N. Y. Supp. 294. mons, properly denied on the Time to appear being in excess ground that it presents nothing on of that required by statute, motion which to rule. — Bankers' Security to quash or dismiss the process Co. v. Holly, Town of, 134 C. C. A. for this irregularity properly 536, 219 Fed. 96. denied. — Armstrong v. May, 50 6 Davis v. Jennings, 78 Neb. 462, Okla. 539, 155 Pac. 238. Ill N. W. 128. 3 Hubner v. Hubner, 67 Ore. 557, 7 German Ins. Co. v. Fredericks, 136 Pac. 667. 57 Neb. 538, 77 N. W. 1106. See 4 Whittier v. Woods, 57 Ore. 432, Newton v. Magee, 31 S. D. 216, 112 Pac. 408. 140 N. W. 252. See, also, supra, § 226, footnote 8 Wall v. Chesapeake & O. R. 3. Co., 37 C. C. A. 129, 95 Fed. 398. I Code PI. and Pr.— 19 289 § 228 CODE PLEADING AND PRACTICE. [Pt. I, ground that no copy of the complaint was served with the copy of the summons, supported by affidavit, and it ap- pearing on the hearing that a paper purporting to be a copy of the complaint was served with the copy of the summons, on refusal of the defendant to produce the ])aper thus served, in compliance with the order of the court, the motion to quash will properly be denied." Where the sheriff's return to a process is susceptible of two constructions, which are equally rational, the service of the summons will be quashed for the irregularity.^*' The return being that the sheriff served the process "by leaving a copy thereof at the usual place of residence of the defendant," it being made to appear that the defen- dant is, and was at the time of service, a nonresident of the state, the service will be quashed.^^ Service not set aside on the ground that the name of the person served is not the name inserted in the summons as the name of the defendant in the action, where the plaintiff insists that the person served is the person de- sired;^- and in Oklahoma will not be set aside because all the plaintiffs are not named in the process. ^^ Under a statute providing that defects in the pleadings and pro- ceedings, not affecting substantial rights, shall be disre- garded,^^ service of summons will not be set aside merely because the plaintiff's Christian name is therein desig- nated as "Sam," when it should have been "Samuel," the plaintiff being identified in other recitals of the sum- 9 Forsman v. Bright, 8 Colo. 467, isKuykendall v. Lambert 69 Pac. 473. (Okla.). 173 Pac. 657. 10 Regent Realty Co. v. Armour ^^ As Colorado Sess. Laws 1891. Packing Co., 112 Mo. App. 271. 86 P- ^^' bill's Ann. Colo. Code, S. W. 880. §38a. In California service of sum- 11 Bond V. Wilson, 8 Kan. 228, ^^^^ ^jj^ ^^^ ^^ ^^^ ^^.^^ ^^j^gg 12 Ann. Rep. 466. defendant's substantial rights are i:2Lederer Amusement Co. v. affected. — Fraser v. Oakdale Land Pollard, 71 App. Div. (N. Y.) 35, & W. Co., 73 Cal. 187, 14 Pac. 829; 10 N. Y. Ann. Cas. 481, 75 N. Y. McGinn v. Rees, 33 Cal. App. 291, Supp. 619. 294, 165 Pac. 52. 290 Ch. XI.] FRAUDULENTLY SECURING PRESENCE. §220 nions, and the complaint on file giving liis name as Samuel.^^ A variance between the date of the original process and the copy of the summons served, has been said not to be ground for quashing the service.^*' Fraudulently inveigling into jurisdiction of court,^' for the purpose of securing service of process upon the per- son within that jurisdiction, the service of the summons will be set aside ;^'* but on motion to quash ser\'ice on this ground, issue being joined as to whether fraud was com- mitted, a full hearing given to the motion before trial, there being testimony for and against the contention of fraud in procuring the presence of defendant for the purpose of securing service of process, and the motion being denied, it was held not to be error to refuse to reopen the issue and allow the testimony in favor of the motion to be submitted to the jury.^'* §229. Service by publication. Where the service of process is made by publication of the summons against a nonresident defendant, the affidavit for order of publication, the order of publication, and the publica- tion of the sunomons, may all be attacked by a motion to quash or set aside. The procedure required by the stat- ic; Rich V. Collins, 12 Colo. App. Summons served on husband 511, 56 Pac. 207. while attending court in another 10 George v. Fitzpatrick, 25 N. ^^^^ between himself and his wife. Y. Civ. Proc. Rep. 383, 41 N. Y. ^*^"^<^ ^'^^^ assume defendant had Supp. 211. 17 As to effect of fraud in ser abandoned his wife and was liv- ing in another state, on motion to quash or set aside service on vice of summons, see, ante, § 213 ^^^xxnA of privilege. — Lemberger and § 226, footnote 9. v. Lemberger, 164 N. Y. Supp. 555. IS Van Horn v. Great Western lo Conrath v. Johnston, 36 Okla. Mfg. Co., 37 Kan. 523, 15 Pac. 562; 425, 128 Pac. 1088. Reed v. Williams, 29 N. J. L. (5 Sending to referee to take fur- Dutch) 385; Carpenter v. Spooner, ther proof where question in- 4 N. Y. Super. Ct. Rep. (2 Sandf.) volved fully presented by 717; Graves v. Graham, 19 Misc. affidavits, held to be error. — (N. Y.) 618, 44 N. Y. Supp. 415, Bucholtz v. Florida East Coast R. affirming 18 Misc. 752, 43 N. Y. Co.. 59 App. Div. (N. Y.) 566, 69 Supp. 510. N. Y. Supp. 682, 291 § 230 CODE PLEADING AND PRACTICE. [Pt. 1, ute for service by publication must be strictly pursued, being in derogation of the common law/ and where the method prescribed is not followed in the publication of the summons, the service will be set aside on motion ;- but where the order of publication was duly and regularly procured, it will not be disturbed on setting aside a defective publication.^ An affidavit for service of process by publication will be quashed where it is shown that the defendant is a resident of the state ;^ but where the plain- tiff was entitled to service of process by publication on a ground incidentally mentioned in the affidavit for the order of publication, but not sufficiently specified as to the facts, a motion to quash the service was denied in Oklahoma.^ But where the affidavit for order of service by publication of summons against a nonresident defen- dant contained no reference to the defendant whom it was attempted to so serve, the service was set aside.® The length of time for appearance and answer contained in the summons published being greater than the time speci- fied in the statute, will not furnish ground for quashing the service."^ The fact that the complaint in an action in which the service is made upon a nonresident defendant by publication joins claims purely personal with claims affecting real property, will furnish ground, where the objection is timely taken, ^ for setting aside the service.^ § 230. Amendment of defects — In pkocess. A juris- dictional process, commencing an action, can not be 1 See, supra, §193. 93 U. S. 163, 167, 23 L. Ed. 858; 2 Whiton V. Morning Journal Chamberlain v. Bittershon, 48 Fed. Assoc, 23 Misc. (N. Y.) 229, 27 1^; Stone v. Speare, 175 Fed. 586. N Y. Civ. Proc Rep. 224, 50 N. Y. ^ Rawson v. Sherwood, 59 Kan. Supp. 899. '^'^6, 53 Pac. 69. 7 Calkins v. Miller, 55 Neb. 601, ^ ^^- ■ 75 N. W. 1108. 4 Tolbert v. State B a n k. 30 g As to when objection must be Okla. 403. 121 Pac. 212. taken, see, ante. § 225. 5 Richardson v. Howard, 51 Okla. 9 Zimmerman v. Barnes, 56 Kan. 240. 151 Pac. 887, Tilton v. Cofield, 419, 43 Pac. 764. 292 ell. XI.] AMENDING DEFECTS IN PROCESS. § 230 amended in any substantial particular, without a statute of amendments especially authorizing it.^ We have al- ready seen that in California, by statutory pro\Hsion,- the process of the court is within its power and may be amended at any time pending service, where there is an otherwise valid process to amend f and where the process of the court is amendable it will be accorded the same effect, in so far as acts done in serving it are concerned, as though it had been amended.^ Under a statute^ con- ferring on the courts control over their process, and power to amend the same to conform to law and justice, after service and return of a summons, the court may order the writ of process to be amended so as to conform with the requirements of the statute,^ and may order the process as thus amended to be withdrawn from the files and reserved f and it has been held that the trial court may permit the process and the complaint to be so amended as to show that the defendant is sued in his individual instead of in his representative capacity,^ or 1 Fisher v. Crowley, 57 W. Va. Idaho 472, 478, 125 Am. St. Rep. 312, 4 Ann. Cas. 282, 50 S. E. 422. 175, 179, 94 Pac. 827; Hancock v. 2 See Kerr's Cyc. Cal. Code Civ. Preuss, 40 Cal. 572; Richmond & Proc, § 128, par 8. D. R. Co. v. Benson, 86 Ga. 203, 3 See, ante, § 143. ^2 Am. St. Rep. 446, 12 S. E. 357; Passumpsic Sav. Bank v. Manlick, 60 Nev. 469, 83 Am. St. Rep. 539, 83 N. W. 672; Coffin v. Bell, 22 5 As California Code Civ. Proc, ^ev. 169, 58 Am. St. Rep. 738, 37 §128, par. 8; Idaho Rev. Stats, pac. 240; Simmons v. Norfolk & 1887, §3862; New York Code Civ. g. Steamboat Co., 113 N. C. 147, Proc, § 722, and similar statutes. 37 ^m. St. Rep. 614, 22 L. R. A. 6 Empire Mill Co. v. District 677, 18 S. E. 117; Miller v. Zeigler, Court, 27 Idaho 383, 149 Pac 499; 44 w. Va. 484, 67 Am. St. Rep. 777, Empire Mill Co. v. District Court, 29 S. E. 981. 27 Idaho 400, 149 Pac. 505. s Boyd v. United States Mort- May be amended on notice after gage & T. Co., 187 N. Y. 262, 116 service and after defendant's de- Am. St. Rep. 599, 10 Ann. Cas. fault— Sage Inv. Co. v. Haley, 59 146, 9 L. R. A. (N. S.) 399, 20 N. Y. Colo. 504, 149 Pac. 437; Gensler Ann. Cas. 1, 38 N. Y. Civ. Proc. V. Nicholas, 151 Mich. 529, 14 Ann. Rep. 1, 79 N. E. 999. Cas. 452, 115 N. W. 458. See, also, notes, 116 Am. St. 7 Ridenbaugh v. Sandlin, 14 Rep. 609; 10 Ann. Cas. 150. 293 4 Brann v. Blum, 138 Cal. 644 72 Pac. 168. §230 CODE PLEADING AND PRACTICE. IPt.I, an amendment by eliminating one plaintiff where there are two distinct causes of action set forth in favor of different plaintiffs against the same defendant," — e. g., where a husband and wife are joined in an action in a personal injury case, one cause of action setting out the rights of the husband to recover and the other setting out the right of the wife to recover for the same injury; but a void jurisdictional process can not be amended by an order of the trial court.^^ Thus, a writ of process without the seal of the court attached is utterly void, and can not be amended, the seal being a constitutional requisite ;^^ but whether a summons, served without the clerk's signa- ture being attached to the process, can be amended or not is a question ujDon which the decisions are not harmon- ious, and the practitioner will have to adhere to the rule announced by the courts in his particular jurisdiction. Some of the decisions maintain that a summons without the signature of the clerk of the court^- is absolutely void and unamendable,^^ while in other jurisdictions a sum- mons otherwise regular in form and sufficient in matter, not signed by the clerk, is not void and the defect may be corrected by amendment after service and return thereon. ^^ 9 Georgia Railroad & Banking Co. V. Tice, 124 Ga. 459, 4 Ann. Cas. 200, 52 S. E. 916. 10 Durham v. Heaton, 28 III. 264, 81 Am. Dec. 275; Sharman V. Huot, 20 Mont. 555, 63 Am. St. Rep. 645, 52 Pac. 558. See, also, supra, § 143. 11 Gordon v. Bodwell, 59 Kan. 51, 68 Am. St. Rep. 346, 51 Pac. 906. See, ante, § 143. 12 As to signature by clerk, see, ante, § 127. 13 Sharman v. Huot, 20 Mont. 555, 63 Am. St. Rep. 645, 52 Pac. 558. See: Stone v. Harris, 1 20 Minor (Ala.) 32; Rattan v. Stone, 4 111. (3 Scam.) 540; Dwight v. Merritt, 18 Blatchf. 305, 4 Fed. 614; Seurer v. Horst, 31 Minn. 479, 18 N. W. 283; Gammon v. Perrine, 9 N. J. L. (4 Halst.) 253; Roberts v. Allman, 106 N. C. 391, 11 S. E. 424; Williamson v. Mc- Cormick, 126 Pa. St. 274, 17 Atl. 591; Hickman v. Larckey, 6 Gratt. (Va.) 210; Laidley v. Bright, 17 W. Va. 779, 791-2; Fisher v. Crow- ley, 57 W. Va. 312, 4 Ann. Cas. 282, 50 S. E. 422. See, also, ante, § 143. liAultman & Taylor Mach. Co. V. Wier, 67 Kan. 674, 74 Pac. 227, 1 ch. XI.] AMENDING RETURN OF SERVICE. §231 A mere clerical error, apparent from tlie face of the record, such as a mistake in the date of the return-day,^-' for the sheriff, or the answer-day for the defendant, may be corrected by amendment by the court at any time,^" even though an objection to the jurisdiction of the court, based on the defect, has been taken and is at the time pending for hearing.''^ But where a defendant is served under a wrong name, an amendment of the summons, after service and return, by substituting his correct name, will not confer jurisdiction on the court over the person of the defendant. ^^ ^231. To RETURN OF SERVICE OF PROCESS In GEN- ERAL. To support a judgment by default against a per- son named as a defendant who has not appeared and answered, there must have been not only a legal and sufficient service of process upon such defendant,^ but a approving and following Furman V. Easterly, 36 Kan. 539, 13 Pac. 824. See: Taylor v. Buck, 61 Kan. 694, 78 Am. St. Rep. 346, 60 Pac. 736; Austin v. Lamar Fire Ins. Co., 108 Mass. 338; Pepoon v. Jenkins, 1 Colm. Cas. (N. Y.) 55, 1 Colm. & C. Cas. 60; Ambler v. Leach, 15 W. Va. 677. 15 Return-day for sheriff thirty days too long. — Alford v. Hoag, 8 Kan. App. 141, 54 Pac. 1105. ic Alford V. Hoag, 8 Kan. App. 141, 54 Pac. 1105; Barker Co. v. Western Inv. Co., 75 Neb. 43, 105 N. W. 985. 17 "When the mistake in the date was called to the attention of the court by the motion to amend, the objection to the juris- diction being still pending before the court, it was within the power and discretion of the court to permit the amendment to be made." — Barker Co. v. Western Inv. Co., 75 Neb. 43, 105 N. W. 985, citing Fisher v. Collins, 25 Ark. 97; Richmond & D. R. Co. v. Benson, 86 Ga. 203, 22 Am. St. Rep. 446, 12 S. E. 357; Hamilton V. Ingraham, 121 Mass. 562; Kidd V. Dougherty, 50 Mich. 24, 26 N. W. 510; Kelly v. Harrison, 69 Miss. 856, 12 So. 261. • IS Union Pac, D. & G. R. Co. V. Perkins, 7 Colo. App. 184, 42 Pac. 1047. 1 Stubbs V. McGillis, 44 Colo. 138, 130 Am. St. Rep. 116, IS L. R. A. (N. S.) 405, 96 Pac. 1005: Albright-Pryor Co. v. Pacific Sell- ing Co., 126 Ga. 498, 115 Am. St. Rep. 108, 55 S. E. 251. See: Great Western Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 Pac. 908; Du Bois v. Clark, 12 Colo. App. 220, 55 Pac. 750; Smith V. Morrill, 12 Colo. App. 233, 55 Pac. 824; Kelly v. East Side Imp. Co., 16 Colo. App. 365, 65 Pac. 456. 295 §231 CODE PLEADING AND PRACTICE. [Ft. 1, legal and sufficient return of service of process as well.- A return to a service of process is presumed to speak the truth as to the facts as they existed at the time of making the same,^ relative to the acts of the officer serving the process, and whenever, by reason of clerical error or mistake or inadvertence, the return, as made, is erroneous as to the facts, it may be amended or corrected (1) by the officer before filing, A^dthout leave of the court, because until the return is actually filed in court it is under the absolute control of the officer making the service,* and (2) after filing of the return, by leave of court first ob- tained, on application of the officer,^ even though applica- 2 Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498, 115 Am. St. Rep. 108, 55 S. E. 251. See Wood V. Galloway, 49 Ga. 801, 47 S. E. 178, and cases cited. 3 Return presumed to be true, until the falsity of it be proved. — Purington v. Loring, 7 Mass. 388. Presumption of service of pro- cess on foreign corporation does not arise from personal service of process within the state upon the president of the corporation, where such corporation confines its operations to the state creat- ing it. — Knapp v. Wallace, 50 Ore. 348, 126 Am. St. Rep. 742, 92 Pac. 1054. Presumption does not apply to supply jurisdictional facts which the return of process must show. —Shenandoah Valley R. Co. v. Ashby's Trustees, 86 Va. 232, 19 Am. St. Rep. 898, 9 S. E. 1003. 4 Nelson v. Cook, 19 111. 440; Wilcox V. Moudy, 89 Ind. 232, 234; Welsh v. Joy, 30 Mass. (13 Pick.) 477; Watson v. Toms, 42 Mich. 561; Cochrane v. Johnson, 95 Mich. 67, 54 N. W. 707; Dixon V. White Sewing Mach. Co., 128 Pa. St. 397, 407, 15 Am. St. Rep. 683, 18 Atl. 502; Miller v. Alex- ander, 13 Tex. 497, 65 Am. Dec. 78. 5 Allison V. Thomas, 72 Cal. 562, 564, 1 Am. St. Rep. 89, 14 Pac. 318; Newman, In re, 75 Cal. 213, 220, 7 Am. St. Rep. 150, 16 Pac. 887 (amendment of afiidavit of service by publication) ; Jones v. Gunn, 149 Cal. 687, 693, 87 Pac. 577, 579; Golden Paper Co. v. Clark, 3 Colo. 321; Jeffries v. Rudloff, 73 Iowa 60, 5 Am. St. Rep. 654, 34 N. W. 756; Kirkwood v. Reedy, 10 Kan. 453; Wilkins v. Tourtelbott, 28 Kan. 825; Jordan v. Johnson, 1 Kan. App. 656, 42 Pac. 415; Hutchins v. Carver, 16 Minn. 13; Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134; Elder v. Frevert, 18 Nev. 278, 3 Pac. 237; Green v. Cole, 55 N. C. (13 Ired. L.) 425; Mills v. Rowland, 2 N. D. 30, 49 N. W. 413; Weaver v. Southern Oregon Co., 30 Ore. 348, 48 Pac 171; Tilton v. Cofield, 93 U. S. 163, 167, 23 L. Ed. 858. Amendment without leave of court, four months after decree based on service by publication wherein the afiidavit of mailing was insufficient to confer jurisdic- 296 ell. XL] AMENDING RETURN OF SERVICE. §231 tion is made after the officer has gone out of office,^ where the acts done by the officer and the service of the process were sufficient to give the court jurisdiction of the person of the defendant/ Applications to the trial court for leave to amend the return to the service of process, in order that such return may conform to the requirements of the law or to the facts in the case, are usually treated with liberality, so as to make the return correspond to the true state of facts, ^ although such amendments rest in the tion on the court, the amendment consisting of a new affidavit of mailing, there being on file no affidavit showing facts upon which to base an order for amendment, such amended return is insuf- ficient to confer jurisdiction on the court and validate the decree. — Knapp v. Wallace, 50 Ore. 348, 126 Am. St. Rep. 742, 92 Pac. 1054. 6 Pacific Postal Tel. Cable Co. V. Fleischner, 66 Fed. 899, 905. See, also, post, § 235, footnotes 19 et seq. and text. 7 Allison V. Thomas, 72 Cal. 562, I Am. St. Rep. 89, 14 Pac. 318; Call V. Rocky Mountain Bell Tel. Co., 16 Idaho 556, 133 Am. St. Rep. 135, 102 Pac. 146. 8 See: CAL.— Borland v. O'Neal, 22 Cal. 504; Gavitt v. Doub, 23 Cal. 78, 81; Rousset v. Boyle, 45 Cal. 64; Hewell v. Lane, 53 Cal. 217; Allison v. Thomas, 72 Cal. 562, 1 Am. St. Rep. 189, 14 Pac. 309; People v. Goldenson, 76 Cal. 328, 345, 19 Pac. 161. COLO.— Golden Paper Co. v. Clark, 3 Colo. 321; McClure v. Smith, 14 Colo. 297, 301, 23 Pac. 786. IOWA— Irons V. Keystone Mfg. Co., 61 Iowa 406 408, 16 N. W. 349. KAN.— Stet son V. FVeeman, 35 Kan. 528, 531 II Pac. 431. MD.— Berry v. Grif fith, 1 Harris & G. 337, IS Am Dec. 309. MO. — Crocker v. Mann, 3 Mo. 472, 26 Am. Dec. 684. N E B.— Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134; Witts- truck V. Temple, 58 Neb. 18, 78 N. W. 456. N. H. — Parker v. Barker, 43 N. H. 35, 80 Am, Dec. 130. N. C— Stealman v. Green- wood, 113 N. C. 355, 18 S. E. 503. N. D.— Mills v. Rowland, 2 N. D. 30, 49 N. W. 413. ORE.— Weaver V. Southern Oregon Co., 33 Ore. 348, 48 Pac. 171. PA.— Com. v. Chauncey, 2 Ashm. 99; Dewar v. Spencer, 2 Whart. 211, 30 Am. Dec. 241; Rudy v. Com., 35 Pa. St. 166, 78 Am. Dec. 330. VA.— Shenan- doah Valley R. Co. v. Ashby's Trustees, 86 Va. 232, 19 Am. St. Rep. 891, 9 S. E. 1003. W. VA.— McCormick v. Southern Ex. Co., 93 S. E. 1048. FED.— Rickards V. Ladd, 6 Sawy. 40, 46, Fed. Cas. No. 11804. Amendment to material fact in return, allowed when satisfac- torily proved that the proposed recital in the amended return was a fact. — Chase v. Merrimac Bank, 36 Mass. (19 Pick.) 564, 31 Am. Dec. 163. Sheriff's duty to correct return so that it shall speak the truth.— Berry v. Griffith, 1 Harris & G. (Md.) 337, 18 Am. Dec. 309. 29' §231 CODE PLEADING AND PRACTICE. [Pt. 1, sound judicial discretion of the trial court, and may be allowed or disallowed as may best tend to the furtherance of justice,'^ and will be denied where the proposed amend- ment will work injury.^" Thus, in a recent case in Cali- fornia it was held that where an action is brought against fictitious persons, or against actual persons in fictitious names, service of process made on persons not named in the process or in the complaint, and judgment is entered, by default, against the persons served, without amend- ment, it is the duty of the trial court, on motion of the plaintiff, to thereafter permit the return to the process to be so amended as to show that the persons served were the persons sued under the fictitious names. ^^ But an amendment to a return to the service of process that may affect injuriously the rights of third persons, can be allowed only in those cases where there is something in the record by which the amendment or correction can be made.^- An officer can not be permitted to so amend a Return by deputy-sheriff, not signed in sheriff's name is void- able, not void, and is amendable. — Dewar v. Spencer, 2 Whart. (Pa.) 211, 30 Am. Dec. 241; Com. V. Chauncey, 2 Ashm. (Pa.) 99; Rudy V. Com., 35 Pa. St. 166, 168, 78 Am. Dec. 330. 9 Jackson v. Esten, 83 Me. 162, 23 Am. St. Rep. 765, 21 Atl. 830. See, also, cases in next footnote. 10 Freeman v. Paul, 3 Me. (3 Greenl.) 260, 14 Am. Dec. 237; Thatcher v. Miller, 13 Mass. 270; Kahn v. Mercantile Town Mut. Ins. Co., 228 Mo. 585, 137 Am. St. Rep. 665, 128 S. W. 995; West Mountain Lime & Stone Co. v. Danley, 38 Utah 218, 111 Pac. 647. Denial of amendment of return as to the name of the person served, is not an abuse of judicial discretion. — Stubbs v. McGillis, 44 Cal. 138, 130 Am. St. Rep. 116, 18 L. R. A. (N. S.) 405, 96 Pac. 1005. No rights of third persons hav- ing intervened, amendment may be allowed. — West Mountain Lime & Stone Co. v. Danley, 38 Utah 218, 111 Pac. 647. 11 McGinn v. Rees, 33 Cal. App. 291, 165 Pac. 52, citing Herman V. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 Pac. 509; Morrissey V. Gray, 160 Cal. 390, 117 Pac. 438. Criticism of doctrine, post, § 233, footnote 12. Criticism of iVIorrissey v. Gray, post, § 234. 12 Fairfield v. Paine, 23 Me. 498, 41 Am. Dec. 357. As to limitation on rule as to amendments where intervening rights of third persons are ad- versely affected, see, post, § 232. IVIust appear upon face of writ or return that the proposed amend- 29S i I ell. XI. J AMENDMENT .J IMnSDKTlON Al. DKKECTS. § 2 51 return to service of a process as to reiuler it contrary to his former return on record/^ or to contradict or invali- date such former return under oath J* An amendment to a return of process has reference to the state of facts at the time of service/^ and relates back to and becomes a part of the original return, and may. lor that reason, give validity to a judgment which, but for such amendment, would be treated as void,^*' Defects jurisdictional,^'^ the court acquires no jurisdic- tion over the person of the defendant, and the return can not be amended, even by permission and with the consent of the trial court, ^^ because the court, not having acquired jurisdiction of the defendant, has no power to entertain or act on the application to amend, ^'^ further than to deny the application ; and also for the further fact that there is nothing to amend, because the service of a process juris- dictionally defective, — e. g., where made out of the juris- diction of the officer serving, — is void.-" ment would be proper. — Parker v. Barker, 43 N. H. 35, 80 Am. Dec. 130. 13 Wyer v. Andrews, 13 Me. 168, 29 Am. Dec. 497. 14 Id. isMalone v. Samuel, 10 Ky. (3 A. K. Marsh.) 350, 13 Am. Dec. 172. i« Woodward v. Harbin, 4 Ala. 534, 37 Am. Dec. 753; Kahn v. Mer- cantile Town Mut. Ins. Co., 228 Mo. 585, 137 Am. St. Rep. 665, 128 S. W. 995; Dorr v. Rohr, 82 Va. 359, 3 Am. St. Rep. 106; Shenan- doah Valley R. Co. v. Ashby's Trustees, 86 Va. 232, 19 Am. St. Rep. 898, 9 S. E. 1003; McClure- Mahie Lumber Co. v. Brooks, 46 W. Va. 732, 34 S. E. 921. See, also, note, 13 Am. Dec. 180, 181. As to amendment after judg- ment, see, post, § 235. 1" As to jurisdictioial defects, see, ante, § 38. Deputy's return in own name and not in name of sheriff by him, is a nullity. — Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. Signature to return without official title or designation, and not sworn to is a nullity, and can not be validated by proving that the person signing the return was a deputy-sheriff. — R ei n h a r t v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089. IS See, in this connection, dis- cussion in § 143, ante. 10 See, ante, §§ 39, 118. 20 There must be something in the record to amend by. — Bernard V. Stevens, 2 Aik. (Vt.) 429, 10 Am. Dec. 733. 299 §§ 232, 233 CODE pleading and practice. [Pt. I, <§i 232. Limitation on rule. In most juris- dictions there is a limitation placed upon the general rule as to allowance of amendments to return of process, con- fining such amendments to the original parties to the action, and denying amendment in those cases in which the intervening interests of innocent third parties would be adversely affected.^ Thus, it is held in California that after the lapse of the period for redemption, the court has no jurisdiction to permit the sheriff to so amend his return to the writ of process as to validate a sale other- wise invalid.- On the other hand there are cases to the effect that the courts have power to amend their process and records, notwithstanding the fact that existing rights may be affected.^ § 233. Character and scope of amendment. Amendments may be allowed which are necessary to make the return conform to the true state of facts at the time of the return and necessary to show the acts and things actually done by the officer making the ser\ice of the process,^ where the intervening rights of third per- sons will not be adversely affected,- and manifest injustice will not be done thereby.^ Such amendment must con- form to the true state of facts, and show the whole truth.^ The amendment must be confined to things wdthin the 1 Newhall v. Provost, 6 Cal. 85; v. Edwards, 5 Sawy. 266, 274, Fed. Johnson v. Wilmington & N. C. Cas. No. 5098; Rickards v. Ladd, Electric R. Co., 1 Penn. (Del.) 87, 6 Sawy. 40, 45, Fed. Cas. No. 39 Atl. 777; Tewalt v. Irwin, 164 11804. 111. 592, 46 N. E. 13; Glidden v. 2 McGrath v. Wallace, 116 Cal. Philbrick, 56 Me. 222; Milliken v. 548, 553, 48 Pac. 719. Bailey, 61 Me. 316; Bessey v. Vose, 3 Tilton v. Cofleld, 93 U. S. 163, 73 Me. 217; Berry V. Spear, 75 Me. 23 L. Ed. 858. See Jackson v. 35; Main v. Lynch, 54 Md. 664; Esten, 83 Me. 162, 23 Am. St, Rep. Emerson v. Upton, 26 Mass. (9 765, 21 Atl. 830. Pick.) 157; Howard v. Priestley, i See, ante, §231. 58 Miss. 21; Ohio Life Ins. Co. v. 2 See, ante, § 232. Urbana Ins. Co., 13 Ohio 227 ; 3 Clayton v. State, 24 Ark. 16. Harry v. Hovey, 30 Ohio St. 344; 4 Wolcott v. Ely, 84 Mass. (2 Hass V. Sedlak, 9 Ore. 462; Ftench Allen) 338. 300 Ch. XI.] AMENDMENT — CHARACTER AND SCOPE. § 233 personal knowledge of the officer,^ and to acts done by him at the time and in the capacity in which he was acting. Thus, where an officer occupying a dual capacity or posi- tion, — e. g., special constable, with restricted powers, and town marshall, with general powers, — he can not be per- mitted to amend a return made in a capacity in which he had no power to make the service of the process, to the capacity in which he had power to make it.^ Among the particulars in which amendments may be made to show the true state of facts are : Method of service, where not sufficiently shown by the return, the return may be amended according to the fact, where the process w^as in fact served ;''' as by showing that a substituted service of a summons was made on the defendant, by leaving a copy thereof at his usual place of residence, with a member of his family.^ Date on which service of process made inadvertently omitted,^ or inaccurately stated, on leave of the trial court first obtained, the return may be amended, or corrected, by showing the date of the service, or the correct date of the service.^*^ 5 See, post, § 236. lo F^rst Nat. Bank v. Ellis, 27 6 See: Anthanissen v. Bruns- Okla. 699, Ann. Cas. 1912C, 687, wick & S. A. Steam Towing & 114 Pac. 620; Lee v. State, 47 Okla. Wrecking Co., 92 Ga. 409, 17 S. 738, 150 Pac. 665. See: Furr v. E. 951; Mitchell v. Shaw, 53 Mo. Bank of Fairmount, 139 Ga. 815. App. 652. 78 S. E. 181; Under v. Crawford, 7 Allison V. Thomas, 72 Cal. 562, 95 111. App. 183; Cobb v. New- 1 Am. St Rep. 89, 14 Pac. 309; comb, 7 Iowa 43; O'Hara v. Inde- Golden Paper Co. v. Clark, 3 Colo, pendence Lumber «6; Imp. Co., 42 321; Jackson v. Ohio & M. R. Co., La. Ann. 226, 7 So. 533; Haven 15 Ind. 192; Armond v. Adams, 25 v. Snow, 31 Mass. (14 Pick.) 28; Ind. 455; Wilkins v. Tourtellot, 28 Johnson v. Day, 34 Mass. (17 Kan. 825; Howard v. Priestley, 58 Pick.) 106; Heymes v. Champlin, Miss. 21; Crocker v. Mann, 3 Mo. 52 Mich. 25, 17 N. W. 226; Snyder 472, 26 Am. Dec. 684; Northrup v. v. Schram, 59 How. Pr. (N. Y.) Shephard, 23 Wis. 513. 404; Williams v. Weaver, 101 N. s Crocker v. Mann, 3 Mo. 472, C 1, 7 S. E. 565; Payne v. Long- 26 Am. Dec. 684. Bell Lumber Co., 9 Okla. 683, 60 oLee V. State, 47 Okla. 738, 150 Pac. 235; Osborne v. Hughey, 14 Pac. 665. Okla. 29, 76 Pac. 146; White v. 301 §233 CODE PLEADING AND PRACTICE. [Pt. 1, Time of return being wrong, — e. g., when made during vacation of the court, — the process being properly and regularly issued and duly and legally served, an amend- ment may be allowed nunc pro tunc at the ensuing ses- sion of the court.^^ Identity of defendant sued mth the person served, where defendant sued in a fictitious name, may be shown by an amendment to the return of service of process, has recently been held in California,^^ but this doctrine is open to serious doubt. Name of defendant served incorrectly given,^^ or where the return fails properly to show the person upon whom sel'^dce was made, upon leave of court first duly obtained, the return may be amended to show the true name,^^ in accordance \\dth the actual facts ;^^ but the officer making service of process may not be permitted, by amendment of the return, to substitute one person for another person, as the party on whom the service was made,^^ notmth- standing a holding in California to the contrary, permit- ting deputy sheriff, by oath, to change the defendant served from individual to representative capacity.^'^ Ladd, 34 Ore. 422, 56 Pac. 515; Foster v. Crawford, 57 S. C. 551, 36 S. E. 5. 11 Johnson v. Wilmington & N. Electric R. Co., 1 Penn. (Del.) 87, 39 Atl. 777. 12 See, ante, § 231, footnote 11, and text going therewith. The soundness of this doctrine may well be questioned. Where the attorney for the plaintiff does not know the name of the person whom he is suing and has to sue him by a fictitious name, how can a ministerial officer serving the process be presumed to have any more definite knowledge of iden- tity? i." Marsh v. Phillips, 77 Ga. 436; Alford v. Hoag, 8 Kan. App. 141, 54 Pac. 1105; Frost v. Paine, 12 Me. 111. 14 Cleveland v. Pollard, 37 Ala. 556; McKane v. Democratic Com- mittee, 21 Abb. Pr. N. C. 89, 14 N. Y. Civ. Proc. Rep. 126, 1 N. Y. Supp. 580. 15 Gaff V. Spellmeyer, 13 111. App. 294; affirmed, 112 m. 29, 1 N. E. 170; Wilkins v. Tourtellot, 28 Kan. 825; Louisville, H. & St. L. R. Co. V. Com., 104 Ky. 35, 46 S. W. 207; Phillips V. Evans, 64 Mo. 17. 16 Union Pac, D. & G. R. Co. v. Perkins, 7 Colo. App. 184, 42 Pac. 1047. 17 Morrissey v. Gray, discussed, post, § 234. 302 ch. XI.] DEFECTS IN RETURN — AMENDING. §233 Return made hy deputy in his o^\ti name instead of in the name of the sheriff, his principal,^ ^ on leave of the court, the return may be amended by making the return in the name of the sheriff, by such deputy.^^ Retiiru not sif/iied is a mere irregularity-^ which does not render the return ipso facto void,-^ and where there are memoranda made on the writ of process at the time of service by means of which it can be perfected, the return may be amended by the officer signing such re- turn,22 even after a lapse of six years,-=^ and when the sheriff, or other officer serving the process, is out of office.^* Failure to make any return to the service of a writ of process has been said not to be fatal to the jurisdiction of the court, to be a defect of form merely and not of substance, and that the court, at the trial, should allow IS First Nat. Bank v. Ellis, 27 Olda. 699, Ann. Cas. 1912C, 687, 114 Pac. 620. "In the absence of any statute fixing the fornn of return, or of any showing of prejudice to the defendant or party served, a re- turn made by a deputy-sheriff in his own name on a summons would not be void, so as to re- quire the reversal of a judgment, but that, if it were otherwise, it would be subject to amendment. A number of courts, where the question has been presented, have so held." — Id., citing Bean v. Haf- fendorfer, 84 Ky. 685, 2 S. W. 556, 3 S. W. 138; Calender v. Olcott, 1 Mich. 344; Wheeler v. Wilkins, 19 Mich. 78; Stole v. Padley, 98 Mich. 13, 56 N. W. 1042; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Ford v. De Villers, 2 McC. L. (S. C.) 144; Miller v. Alexander, 13 Tex. 497, 65 Am. Dec. 73; Eastman v. Curtis, 4 Vt. 616. See, also, authorities in foot- note 10, this section. Mere irregularity where a deputy-sheriff returns service in his own name (Hill v. Gordon, 45 Fed. 276), not affecting the juris- diction of the court over the per- son of the person served. — Kelly v. Harrison, 69 Miss. 856, 12 So. 261. 19 See authorities in footnote 10, this section. 20 Dewar v. Spencer, 2 Whart. (Pa.) 211, 30 Am. Dec. 241. 21 See: Com. v. Chauncey, 2 Ashm. (Pa.) 99; Dewar v. Spencer, 2 Whart. (Pa.) 211, 30 Am, Dec. 241; Rudy v. Com., 35 Pa. St. 166, 78 Am. Dec. 330. i;-' Adams v. Robinson, 18 Mass. (1 Pick.) 461. See, ante, § 231, footnote 5. •J'! Thatcher v. Miller, 11 Mass. 413, 13 Mass. 270. 24 Adams v. Robinson, IS Mass. (1 Pick.) 461. 303 § 234 CODE PLEADING AND PEACTICE. [Pt. I, the return to be made.^^ This doctrine is based upon the assumption that a due and legal service was in fact made. <§. 234. Jurisdiction can not be con- ferred BY AMENDMENT. The sole object of allomng amendments to returns of service of process is to cure irregularities and omissions in such returns, to record correctly the actual state of facts at the time of the return, not to introduce new conditions or a differ- ent state of facts. "We have already seen that a pre- requisite to an amendment is the existence of a legal and valid service of process.^ An amendment can not cure .iurisdictional defects^ and nullities ; and where the court acquires no jurisdiction over the person of the defendant by reason of infirmities in the service of process, no amendment to the return can confer jurisdiction upon the court, because no after-proceedings can infuse validity into that which was a mere nullity f that is, the record, in its existing condition, must show jurisdiction in the court ^^ithout the amendment, otherwise the amendment can not confer jurisdiction on the court."^ There are some cases, however, which do not seem to grasp this fundamental principle,^ and among them two California cases. 25 Williamson v. Farrow, 1 Bail. Min. Co. v. Marsano, 10 Nev. 370; L. (S. C.) 611, 21 Am. Dec. 492. Victor Mill & Min. Co. v. Justice 1 See, ante, § 230, footnote 3. Court, 18 Nev. 21, 24, 1 Pac. 831; Hallett V. Righters, 13 How. Pr. 2 As to jurisdictional defects, ^^ y.) 43; Thatcher v. Powell, see, ante, § 38. ^g ^ g ^g ^^^^rt.) 119, 127, 5 3 Kendall v. Washburn, 14 How. l. Ed. 221, 223; Galpin v. Page, Pr. (N. Y.) 380. See: Clapp v. §5 xj. S. (18 Wall.) 350, 21 L. Ed. Graves, 26 N. Y. 418, 420; Talcott 959; Pennoyer v. Neff. 95 U. S. V. Rosenberg, 3 Daly (N. Y.) 203, 714^ 24 L. Ed. 565; Settlemier v. 8 Abb. Pr. N. S. 287; Hallett v. Sullivan, 97 U. S. 444, 24 L. Ed. Righters, 13 How. Pr. (N. Y.) 43; mo. Settlemier v. Sullivan, 97 U. S. 5 see, among other cases, Mason 444, 24 L. Ed. 1110. v. Messenger, 17 Iowa 261; Fore- 4 See, among other cases, Mc- man v. Carter, 9 Kan. 674; Kirk- Gahen V. Carr, 6 Iowa 331, 71 Am. wood v. Reedy, 10 Kan. 453; Dec. 421; Hunter v. Eddy, 11 Mont. Rickards v. Ladd, 6 Sawy. 40, Fed. 264, 28 Pac. 300; Scorpion Silver Cas. No. 11804. 304 ch. XI.] AMENDMENT OF RETURN — CRITICISM. § 234 Morrissey v. Gray^ is an instance in which the doctrine announced is peculiarly open to criticism, — in the interest of those jurisdictions which look to Californa for prece- dents in matters of practice, — because of the flagrant vio- lation by the trial court of settled legal principles, the prominent earmarks of fraud, manifest perjury for the purpose of conferring jurisdiction, after return of an insufficient service, where no jurisdiction existed, — all standing out so plainly as not only to warrant, but the ends of justice plainly demanding, a reversal. The facts in the case, — those sufficient for this discussion, — are these : In an action to foreclose a mortgage executed by a decedent, his wife, in her personal capacity, and as admin- istratrix, and the heirs of decedent, were made parties defendant in the complaint. The process was served and the return shows unmistakably the character of the ser- vice, the person upon whom, and the capacity in which served, as well as the reasons for its method of service, the return reading : * * I hereby certify that I received the within summons on the seventeenth day of April, A. D. 1893, and personally served the same on April nineteenth, A. D. 1893, by delivering to Johanna Morrissey a copy of the said summons attached to a copy of the complaint personally in the county of Butte, and that by order of the plaintiff's attorney none of the other defendants w^ere served. Dated this nineteenth day of April, 1893. ' ' There was no service upon the administratrix, and no service which could confer upon the court jurisdiction to enter default judgment and a decree of foreclosure against the estate of the decedent, and it was not within the judicial discretion of the trial judge, after sale of the property, and after he had taken an assignment of the property, to authorize, procure or allow an amendment by the sheriff which contradicted and gave the lie to his original return.^ 6 Morrissey v. Gray, 160 Cal. " See, ante, § 231, footnotes 12- 390, 117 Pac. 438; Morrissey v. 14, and text going therewith. Gray, 162 Cal. 638, 124 Pac. 246. I Code PI. and Pr.— 20 305 § 235 CODE PLEADING AND PRACTICE [Pt. I, There were no memoranda upon the writ of process from which the amendment could be allowed, and the court in causing or allowing him to impeach his original return by his oath plainly and wilfully violated the law for the advantage of the judge's title to the land. The original return not only recites that the service was made upon Johanna Morrissey, but further recited that ''by order of the plaintiff's attorney" service of the process was not made ujDon any of the other defendants, — and the plain record of the court, before and at the time of the amend- ment, showed, by the return of the officer serving the process, that Johanna Morrissey, as administratrix, was not served ''by order of plaintiff's attorney." The admin- istratrix, as the personal representative of decedent, not having been served, the trial court never acquired juris- diction in the cause to enter a default against decedent's estate and to decree foreclosure and sale of the property, and no amendment to the return could rightfully be made whicli could confer jurisdiction. The service was juris- dictionally defective and could not be amended.^ And even if the return could have been amended, it could not be amended by the deputy sheriff making the service by substituting Johanna Morrissey in her representative capacity for Johanna Morrissey in her individual capac- ity — two separate and distinct individuals, as much as though the personal representative had been another indi- vidual than Johanna Morrissey.'^ § 235. Time within which amendment may BE ]made. There is no specific time within which the re- turn to the service of process must be amended,^ and for that reason the amendment may be made at any time, the rights of third persons not being adversely affected 8 See, ante, § 231, footnotes 16- i Kabn v. Mercantile Town Mut. 19, and text. Ins. Co., 228 Mo. 585, 137 Am. St. 9 See, ante, § 233, footnote 16, Rep. 665, 128 S. W. 995. and text going therewith. 306 eh. XI.] AMENDING RETURN IN WHAT TIME. §235 thereby ;- but the lapse of time should be taken into con- sideration by the court in determining upon the propriety of allowing or disallowing the proposed amendment.^ Such an amendment is generally allowed in those cases in which the purpose of the amendment is not to confer jurisdiction on the court, but merely to perfect the proof of the jurisdiction which the court had pre\dously ac- quired.^ Thus, in a case of service of the summons with- out making a return thereof, an amendment by making the proper return, it has been said, should be allow^ed on the trial f and where memoranda were made on the writ of process at the time of service thereof, an amendment in accordance with such memoranda was allowed after six years.'' It is not practical, even if desirable, to give here all the instances as to the time w^hen amendments to re- turn of process Avere allowed ; it is sufficient to designate the following: After judgment by default, where the cause of justice is subserved by making the return conform to the true state of facts by showing that the process w^as properly and legally served upon the defendant before the judg- ment was directed to be or was entered,'^ where no inter- 2 Barnard v. Stevens, 2 Ark. 4 Shenandoah Valley R. Co. v. (Vt.) 429, 16 Am. Dec. 733. Ashby's Trustees, 86 Va. 232, 19 3 See: Woodward v. Harbin, 4 Am. St. Rep. 898, 9 S. E. 1003. Ala. 534, 37 Am. Dec. 753; Gaff v. 5 Williamson v. Farrow, 1 Bail. Spellmeyer, 13 111. App. 294; af- L. (S. C.) 611, 21 Am. Dec. 492. firmed, 112 111. 29, 1 N. E. 170; 6 Thatcher v. Miller, 11 Mans. Jeffries v. Rudloff, 73 Iowa 60, 5 413, 13 Mass. 270. Am. St. Rep. 654, 34 N. W. 756; 7 See: ALA.— Hafflin v. McMinn, Kirkwood v. Reedy, 10 Kan. 453; 2 Stew. 492, 20 Am. Dec. 58. CAL. Wilton Mfg. Co. V. Butler, 34 Me. — Newman, In re, 75 Cal. 213,7 Am. 432; Scruggs v. Scruggs, 46 Mo. St. Rep. 146, 16 Pac. 887; Allison v. 271; O'Brien v. Gaslin, 20 Neb. Thomas, 72 Cal. 562. 1 Am. St. Rep. 347, 30 N. W. 274; Northwood v. 189, 14 Pac. 309; Herman v. San- Barrington, 9 N. H. 369; Avery tee, 103 Cal. 519, 42 Am. St. Rep. V. Bowman, 39 N. H. 393; Shenan- 145, 37 Pac. 509; McGinn v. Rees, doah Valley R. Co. v. Ashbys ?,Z Cal. App. 291, 165 Pac. 52. Trustees, 86 Va. 232, 19 Am. St. GA.— Freeman v. Cahart, 17 Ga. Rep, 898, 9 S. E. 1003. 349. ILL.— Johnson v. Donnell, 15 COT §235 CODE PLEADING AND PRACTICE. [Pt. I, veiling rights are injuriously affected f but such amend- ment must be in affirmance of the judgment.® After appeal,^^ or pending writ of error/^ the return to the service of the process has been allowed to be amended, such aniendment in the trial court being sIiowti in the appellate court by a supplemental record.^- 111. 97; Durham v. Heaton, 28 HI. 264. 81 Am. Dec. 275 (after sale); Toledo, P. & W. R. Co. v. Butler. 53 111. 323; Chicago Planing Mill Co. V. Merchants' Nat. Bank, 86 111. 587; La Salle County v. Milll- gan, 143 111. 321, 32 N. E. 196. KAN.— Kirkwood v. Reedy, 10 Kan. 453. KY. — Mason v. Ander- son, 19 Ky. (3 T. B. Mon.) 294; Thompson v. Moore, 91 Ky. 80, 15 S. W. 6. MINN.— Burr v. Seymour, 43 Minn. 401, 19 Am. St. Rep. 245, 45 N. W. 715. MO.— Kitchen v. Reinsky, 42 Mo. 427; McClure v. Wells, 46 Mo. 311. N. Y.— Sny- der V. Schram, 59 How. Pr. 404. PA. — Dewar v. Spencer, 2 Whart. 211, 30 Am. Dec. 241 (re- turn of process not signed). VA. — Stotz V. Collins, 83 Va. 423, 2 S. E. 737; Shenandoah Valley R. Co. V. Ashby's Trustees, 86 Va. 232, 19 Am. St. Rep. 891, 9 S. E. 1003; Commercial Union Assur. Co. v. Everhart's Admr., 88 Va. 952, 14 S. E. 836. WASH.— Cunningham v. Spokane Hydraulic Min. Co., 20 Wash. 450, 72 Am. St. Rep. 113, 55 Pac. 756. W. VA.— Capehart v. Cunningham, 12 W. Va. 750. WIS. — Bacon v. Bassett, 19 Wis. 45; Fisk V. Reigelman, 75 Wis. 499, 17 Am. St. Rep. 198, 43 N. W. 1117, 44 N. W. 766. See, also, ante, § 231, footnotes 11 and 16. s Allison V. Thomas, 72 Cal. 562, 564, 1 Am. St. Rep. 89, 14 Pac. 318. 9 Chicago Planing Mill Co. v. Merchants' Nat. Bank, 97 111. 294, 300; Wilcox v. Sweet, 24 Mich. 355; Montgomery v. Merrill, 36 Mich. 97; Stewart v. Stringer, 45 Mo. 116; Magrew v. Foster, 54 Mo. 258; Dunham v. Wilfong, 69 Mo. 355; Gasper v. Adams, 24 Barb. (N. Y.) 287; Mills v. Howland, 2 N. D. 30, 49 N. W. 413; Moyer v. Cook, 12 Wis. 335. Doctrine carried to unwarranted length in a case where the service of process was not sufficient to give the court jurisdiction, and after judgment the trial court per- mitted sheriff to amend return to service of process by substitutins; an entirely different party as the person on whom the process was served. — Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438; Morrissey V. Gray, 162 Cal. 638, 124 Pac. 246. See criticism of these cases, ante, § 234. 10 See Loveland v. Sears, 1 Colo. 433; Jenkins v. Crofton's Admr, 10 Ky. L. Rep. 456, 9 S. W. 406; Snyder v. Schram, 59 How. Pr. (N. Y.) 404; Thomas v. Goodman, 25 Tex. Supp. 446; Hopkins v. Bal- timore & O. R. Co., 42 W. Va. 535, 26 S. E. 187; Gauley Coal Land Assoc. V. Spies, 61 W. Va. 19, 55 S. E. 903. 11 Hefflin v. McMinn, 2 . Stew. (Ala.) 492, 20 Am. Dec. 58. 12 See Brown v. Hill, 5 Ark. 78; Bizzell V. Stone, 8 Ark. 478; Love- 308 ch. XL] AMENDING RETURN — IN WHAT TIME. §235 After suit brought against sheriff for a false return/' to enforce his liability therefor, the trial court may permit the officer to amend the return in those cases where jus- tice requires that this should be done ;^^ but such amend- ment rests purely in the sound judicial discretions^ of the court ;S^ and it has been said that an amendment can not be allowed where the liability is fixed on the sheriff by the original return,^ ' or after judgment against the officer for a false return.^^ After expiration of term of office of the sheriff or other officer serving the process, the trial court, in its sound judicial discretion, may allow an amendment to be made to the return by the officer serving the process, in those cases in which the ends of justice require such an amend- ment, and there is matter in the record from which such amendment can be made,^^ because the making of such an land V. Sears, 1 Colo. 433; Hawes V. Hawes, 33 111. 286; Toledo, P. & W. Co. V. Butler, 53 111. 323; Terry V. Eureka College, 70 111. 236; Ten- nent-Stribbling Shoe Co. v. Har- gardin-McKlttrick Dry Goods Co., 58 111. App. 368; Irvine v. Scobee, 15 Ky. (5 Lit.) 70; Shamburg v. Noble, 80 Pa. St. 160; Gauley Coal Land Assoc, v. Spies, 61 W. Va. 19, 55 S. E. 903. 13 In Arkansas at any time be- fore action against officer for false return has been sustained. — Brink- ley V. Mooney, 9 Ark. 445; Clayton V. State, 24 Ark. 16. 14 ALA. — Hodges v. Laird, 10 Ala. 678; Governor v. Bancroft, 16 Ala. 614; Niolin v. Hamner, 22 Ala. 578. IOWA— Jeffries v. Rud- loff, 73 Iowa 60, 5 Am. St. Rep. 654, 34 N. W. 756. ME.— Wilton Mfg. Co. v. Butler, 34 Me. 432. MISS. — Trotter v. Parker, 38 Miss. 473. MO. — Corby v. Burnes, 36 Mo. 194. N. H. — Northwood v. Barrington, 9 N. H. 369. N. Y.— People V. Ames, 35 N. Y. 482, 91 Am. Dec. 64. N. C. — Stealman v. Greenwood, 113 N. C. 355, 18 S. E. 503; Swain v. Burden, 124 N. C. 16, 32 S. E. 319. PA.— Whitman v. Higby, 24 Pa. Co. Ct. Rep. 236, 10 Pa. Dist. Rep. 39. TENN.— Hill v. Hinton, 39 Tenn. (2 Head.) 124. TEX. — Thomas v. Browder, 33 Tex. 783. VT. — Barnard v. Stev- ens, 2 Aik. 429, 16 Am. Dec. 733. 15 As to discretion of court, see, ante, § 231, footnote 9. iG Campbell v. Smith, 115 N. C. 498, 20 S. E. 723. IT Governor v. Bancroft, 16 Ala. 605. isMullins V. Johnson, 22 Tenn. (3 Humph.) 396; Carr v. Meade, 77 Va. 142. 19 G A.— Wilson v. Ray, T. U. P. Charlt. 109; Beutell v. Oliver, 89 Ga. 246, 15 S. E. 307. ILL.— John- son V. Donnell, 15 111. 97; La Salle County V. Milligan, 143 111. 321, 32 309 § 236 CODE PLEADING AND PRACTICE. [Ft. I, amendment is not the doing of an official act, but merely perfecting the evidence relative to an act already regu- larly and legally done.-" Thus, where memoranda were made upon the writ of process at the time of service, but the return was unsigned, the sheriff was permitted to complete the return by signing, although his term of office had expired.-^ After removal of cause from a state court to a federal court, the sheriff can not be permitted to amend, in the state court, the return on the service of process, for the reason that the removal of the cause divests the state court of all jurisdiction in the cause ;-- but there may be an amendment to the return in the federal court to which the cause is removed.-^ § 236. Who may amend. An amendment to the return on ser^dce of a writ of process can properly be made only by the officer who made the service of the proc- ess, or in accordance with memoranda made by such serv- ing officer, which memoranda state the facts omitted from, or incorrectly stated in, the return made to the writ.' N. E. 196. IND. — Dwiggins v. Cook, 20 Morris v. Schools, 15 111. 266: 71 Ind. 579. IOWA — Jeffries v. Armstrong v. Easton, 40 Ky. (1 B. RudlofE, 73 Iowa 60, 5 Am. St. Rep. Hon.) 68. 654, 34 N. W. 756. KAN.— Alford 21 Adams v. Robinson, 18 Mass. V. Hoag, 8 Kan. App. 141, 54 Pac. (1 Pick.) 461. 1105. KY. — Gay v. Caldwell, 3 Ky. 22 Hall v. Stevenson, 19 Ore. 153, (1 Hard.) 68; Burnie v. Over- 20 Am. St. Rep. 803, 23 Pac. 887. street, 47 Ky. (8 B. Men.) 302; See State v. Rayburn, 31 Mo. App. Newton v. Prather, 62 Ky. (1 385; Tallman v. Baltimore & O. R. Duv.) 100; Louisville, H. & St. L. Co., 45 Fed. 156; Hawkins v. Price, R. Co. V. Com., 20 Ky. L. Rep. 371, 79 Fed. 452. 46 S. W. 207. ME. — Keen v. Briggs, 23 See, among other cases, Rich- 46 Me. 467. MASS. — Adams v. mond v. Brookings, 48 Fed. 241, Robinson, 18 Mass. (1 Pick.) 461. 242; Stalker v. Pullman's Palace- MO.— Miles V. Davis, 19 Mo. 408. Car Co., 81 Fed. 989, 990. N. H. — Avery v. Bowman, 39- N. H. 1 Knapp v. Wallace, 50 Ore. 348, 393. VA.— Shenandoah Valley R. 126 Am. St. Rep. 742, 92 Pac. 1054. Co. V. Ashby's Trustee.5, 86 Va. See O'Conner v. Wilson, 57 111. 232, 19 Am. St. Rep. 898, 9 S. E. 226; La Salle County v. Milligan, 1003. 143 111. 321, 32 N. E. 196; Gaff v. 310 ell. XI.] AMENDING RETURN WHO MAY. § 236 A sheriff can not amend a return made by his deputy- for the reason that a sheriff can not be presumed to have personal knowledge as to what was done by his deputy in making a service of process ; and if the facts can be established from memoranda made upon the original writ at the time by such deputy, it must be on proof to the court.^ Thus, it has been hekl that a sheriff' after expira- tion of his office, can not amend a return to a service of process by his deputy, not as to matters of form, but as to matters of fact relating to the service ;^ and where the sheriff' was incompetent to serve the process, service by his deputy, being service by him, will be invalid, and the sheriff" will not be permitted to amend a return on such process by his deputy f but where the sheriff was compe- tent to serve the process he may amend the return of his deputy, even after the expiration of his term of office," and the decease of the deputy, where such deputy made memoranda on the original process at the time of service from which such amendment can be made,'^ but in the absence of such memoranda the sheriff can not be per- mitted to amend the return.'^ Spellmeyer, 13 111. App. 294; af- By sheriff in some jurisdictions, firmed, 112 111. 29, 1 N. E. 170; —See footnotes 7 and 8, this sec- Carroll County Bank v. Goodall, 41 tion. N. H. 81. 4 Knapp v. Wallace, 50 Ore. 348, Officer must have interest in the 126 Am. St. Rep. 742, 92 Pac. 1054. amendment before it can be made, 5 O'Conner v. Wilson, 57 111. 234. under some statutes.— See Lowen- „ as to amendment after expira- stein V. Krell, 162 Pa. St. 267, 29 tion of term of office, see, ante. Atl. 878. § 235^ footnotes 18-21. and text 2 O'Conner v. Wilson, 57 111. 226, going therewith. 234. 7 See Insersoll v. Sawyer. If) .'! Knapp V. Wallace, 50 Ore. 318, Mass. (2 Pick.) 276; Aveiy v. p.ow- 126 Am. St. Rep. 742, 92 Pac. 1054. man, 39 N. H. 393. See Smith v. Martin, 20 Kan. 572; In Washington letuin must be Bayley, In re, 132 Mass. 457; Fisk amended on proof to the court. — V. Huiit, 33 Ore. 424, 54 Pac. 660; See footnote 3, this section. Vv^hite V. Ladd, 34 Ore. 422, 56 Pac. ^ See O'Conner v. Wilson, 57 111. Cli. 226. 311 § 237 CODE PLEADING AND PRACTICE. [Pt. I, Deputy-sheriff may amend, in the name of the sheriff by him, where the sheriff was competent to make service of the process, a return to a service of process made by him," although the right to so amend is limited to his term of office as deputy in some jurisdictions,^^ and if he is de- ceased, amendment must be by the sheriff, where the deputy made memoranda on the process at the time from which such amendment can be made.^^ But after the sheriff has become guarantor of the title of property sold by him under an execution on a judgment obtained in the proceeding, the deputy-sheriff serving the process has been held to be incompetent to amend an erroneous re- turn.^2 § 237. Method of amendment. The usual manner in which an amendment to a return of service of process is made, after the return has been filed, is by application made by the officer serving the process to the court for permission to make the proposed amendment;' and while the allowing or disallowing of the proposed amendment is a matter of sound judicial discretion, ^ we have already seen that such applications are treated with liberality, and are allowed whenever the interests of jus- tice demand that the amendment shall be made in order to make the record conform to the facts in the case.^ But an amendment to a return of service of process may be allowed or directed and compelled upon the application of a party to the suit, or by a purchaser under an execu- 9 stone V. Wilson, 10 Gratt. (Va.) a specified amendment to the re- 533. turn of service of process may be 10 See Shores v. Witworth, 76 made, is not equivalent to amend- 'T'enn. (8 Lea.) 662. ment; until the amendment grant- ed is made the record is in the same condition it was before ap- plication for leave to amend was made. — Bee Wittstruck v. Temple, 58 Neb. 16, 78 N. W. 456. 1 See, ante, § 231, footnote 5. o See, ante, § 231, footnotes 8 et 11 See footnotes 7 and 8, this section. 12 0'Conner v. Wilson, 57 111. 226. Actual amendment necessary, seq. mere permission of the court that 3 id. 312 ch. XI.] AMENDING RETURN — ON NOTICE, § 238 tion on a judgment obtained in the proceedings under the service of the process, as well as upon application of the officer serving the process for leave to amend.^ On such an application, however, the court can compel an amend- ment of the return in such a manner as to complete an imperfect or insufficient return, only, — i. e., require a return that is appropriate to the writ as a matter of law,^ — not as to facts not shown by memoranda made by the officer upon the original writ at the time.^ While the court can direct and compel the officer to make the ap- propriate formal return the writ requires in law, con- formable to the facts in the case,^ the court can not direct the officer serving the process as to what the return shall be,^ or compel the amendment of a return, regular and sufficient at law, as to matters of fact.^ § 238. On notice. In one line of cases it is held that the return of the officer serving a process may be amended as a matter of course, and that notice of the application to the parties interested is not neces- sary, in the absence of a statute requiring it;^ that, 4 Johnson v. Wilmington & N. C. Rousset v. Boyle, 45 Cal. 64 ; Peo- Electric R. Co., 1 Penn. (Del.) 87, pie v. Murback, 64 Cal. 369, 30 39 Atl. 777; Beutell v. Oliver, 89 Pac. 618; People v. Goldenson, 76 Ga. 246, 15 S. E. 307; Stetson v. Cal. 328, 345, 19 Pac. 161. Freeman, 35 Kan. 523, 531, 11 Pac. s Vastine v. Fury, 2 Serg. & R. 431; Youngstown Bridge Co. v. (Pa.) 426; Maris v. Schermerhorn, White's Adm'r, 105 Ky. 273, 49 3 Whart. (Pa.) 13; Dixon v. White S. W. 36. Sewing-Machine Co., 128 Pa. St. 5 Dixon V. White Sewing Ma- 397, 407, 15 Am. St. Rep. 683, 5 chine Co., 128 Pa. St. 397, 407, 15 L. R. A. 659, 18 Atl. 502. Am. St. Rep. 683, 5 L. R. A. 659, 9 Flynn v. Kalamazoo District 18 Atl. 502; Washington Mill Co. Court, 138 Mich. 127, 101 N. W. V. Kinnear, 1 Wash. Tr. 99. 222; Washington Mill Co. v. Kin- 6 Hewell V. Lane, 53 Cal. 213, near, 1 Wash. Tr. 99; Smith v. 217; People v. Goldenson, 76 Cal. Gaines, 93 U. S. 341, 343, 23 L. Ed. 328, 345, 19 Pac. 161. See Humph- 901. ries V. Lawson, 7 Ark. 341; Wilcox i Herman v. Santee, 103 Cal. V. Moudy, 89 Ind. 232; Sawyer v. 519, 42 Am. St. Rep. 145, :57 Pac. Curtis, 2 Ashm. (Pa.) 127. 509; Woodward v. Brown, 119 7 See Gavitt v. Doub, 23 Cal. 81; Cal. 283, 299, 63 Am. St. Rep. lOS, Howell V. Lane, 53 Cal. 213. 217: 51 Pac. 542: Morrissey v. Gray, §238 CODE PLEADING AND PRACTICE. [Ft. T, strictly speaking, the proceeding is one between the officer and the court, is ex parte in its nature, and that, in con- templation of the law, the amended return is made under the same sanction and responsilnlity as the erroneous or mistaken one,- But the better doctrine, supported by the better reason if not also by the weight of the adjudicated cases, is to the effect that such an amendment should not be allowed except upon due notice to the parties inter- ested and wdiose rights may be adversely affected by the proposed amendment;^ and particularly is this true in those cases in which the proposed amendment is not based upon data in the record, — e. g,, memoranda made upon the writ at the time of serving by the officer, — but depends upon extraneous matters,^ or where a long time has elapsed after the original return was made, and new interest may have supervened, or a defendant's interests may be adversely affected.^ Where the proposed amend- 160 Cal. 390, 117 Pac. 438; Morris- sey V. Gray, 1G2 Cal. 638, 124 Pac. 246; McGinn v. Rees, 33 Cal. App. 291, 165 Pac. 52; Rickards v. Ladd, 6 Sawy. 40, Fed. Cas. No. 11804. See: Brown v. Hill, 5 Ark. 78; Lungren v. Harris, 6 Ark. 474; Bizzell V. Stone, 8 Ark. 478; Moore V. Purple, 8 111. (3 Gilm.) 149; Morris v. Schools, 15 111. 266, 269; Kitchen v. Reinsky, 42 Mo. 427. Notice to defendant is not a prerequisite to permitting sheriff to amend his return. — Kahn v. Mercantile Town Mut. Ins. Co., 228 Mo. 585, 137 Am. St. Rep. 665, 128 S. W. 995. 2 Rickards v. Ladd, 6 Sawy. 40. Fed. Cas. No. 11804. See: Morris V. Schools, 15 111. 266, 269; Dunn V. Rogers, 43 111. 260; Jeffries v. Rudloff, 73 Iowa 60, 5 Am. St. Rep. 654, 34 N. W. 756; Stetson v. Free- man, 35 Kan. 523, 11 Pac. 431; Green v. Kindy, 43 Mich. 280, 5 N. W. 297; Kitchen v. Reinsky, 42 Mo. 427; Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134; Phoenix Ins. Co. V. King, 52 Neb. 562, 72 N. W. 855; White's Appeal, 25 Pa. St. 373. 3 Green v. Kindy, 43 Mich. 279, 5 N. W. 297; Shufeldt v. Barlass, 33 Neb. 785, 5 N. W. 134; Phoenix Ins. Co. V. King, 52 Neb. 562, 72 N. W. 855; Wittstruck v. Temple, 58 Neb. 16, 78 N. W. 456; Mills V. Howland, 2 N. D. 30, 49 N. W. 413; Stalker v. Pullman's Palace- Car Co., 81 Fed. 989. 4 Hovey v. Waite, 34 Mass. (17 Pick.) 197; Merrill v. Montgomery. 25 Mich. 72; Montgomery v. Mer- rill, 36 Mich. 97: Green v. Kindy, 43 Mich. 279, 5 N. W. 297; Coch- rane V. Johnson, 95 Mich. 67, 54 N. W. 707; Dobynes v. United States, 7 U. S. (3 Cr.) 241, 2 L. Ed. 427. 5 O'Conner v. Wilson, 57 111. 226; 314 ell. XI. j WAIVER OP DEFECTS, ETC. § 239 ment is as to matters touclaing the jurisdiction of the court over the person of the defendant, an amendment can never be properly allowed without due notice to the defen- dant affected.^ Waiver of objection for ivant of notice by neglecting to ask to have the order allowing the amendment set aside and vacated, or by controverting the facts in such amended return, where subsequent notice comes to the party claiming to. have been injured by such amendment, and who could have so moved or controverted the amend- ment, but failed to do soJ § 239. Waiver of defects and objections. Any objec- tion which might be taken to a writ of process, or the sufficiency and legality of the service thereof, or to the return to the service, is waived by acceptance of ser\^ce of complaint and consenting to go to trial ;^ by general appearance- and requesting an adjournment;^ by carry- ing up cause on demurrer ;^ by failure to attack defect by Thatcher v. Miller, 13 Mass. 271: made by the court which tried the Hovey v Waite, 34 Mass. (17 cause, and upon notice to the op- Pick.) 197; Williams v. Doe ex posite party." — King v. Bates, 80 dem. Oppelt, 9 Miss. (1 Smed. & Mich. 367, 20 Am. St. Rep. 518, 45 M.) 559; Coopwood v. Morgan, 34 N. W. 147. Miss. 3G8. "^ Woodward v. Brown, 119 Cal. "If much time has elapsed since 283, 300, 63 Am. St. Rep. 108, 51 the first return, or if new rights Pac. 542. have likely intervened, it is neces- i Ward v. Manly, 113 Ala. 631, sary and proper that notice to 21 So. 307. those interests should he given." 2 R o g u e River M i n. Co. v. —Stetson V. Freeman, 35 Kan. Walker, 1 Ore. 341; White v. 523, 11 Pac. 431. Northwestern Stage Co., 5 Ore. oDenison v. Smith, 33Mich.l55; 102; Keyser v. Pollock, 20 Utah Haynes v. Knowles, 39 Mich. 407; 371, 376, 59 Pac. 87. Green v. Kindy, 43 Mich. 279, 5 As to appearance, see, post, N. W. 297; Clark v. McGregor, 55 g§ 255 et seq. Mich. 412, 21 N. W. 866; King v. a Doughty v. Jones, 3 N. J. U Bates, 80 Mich. 367, 20 Am. St. (2 Pen.) 653. Rep. 518, 45 N. W. 147. i Eaton v. Whitaker, 23 Mass. "Amendments without which (6 Pick.) 465. the court acquires no jurisdic- Compare: Colt v. Partridge, 48 tion to try the case can only be Mass. (7 Mete.) 570. 315 §239 CODE PLEADING AND PRACTICE, [Pt. I, motion,^ special demurrer or special answer;^ by failure to except to a failure or refusal of the court to act on a motion to quasli process -^ by filing a general demurrer f by general objection to admission of judgment as evi- dence;^ by going to trial on merits without ruling on motion to dismiss process ;^^ by motion to quash process because of bar of statute ;^^ by pleading to the merits or otherwise joining issue ;^- by procuring rule for security for costs ;^^ and by waiver of process. ^^ But a special appearance for the specific purpose of objecting to the sufficiency of the process, or to the regularity and legality of the service thereof, or to the sufficiency of the return, does not constitute a waiver in some jurisdictions.^^ Thus 5 W^oodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 2, 542. 6 Salt Lake City v. Salt Lake Inv. Co., 43 Utah 181, 134 Pac. 603. 7 Trimble v. Shaffer, 3 W^. Va. 614. See, also, footnote 10, this sec- tion. 8 Sanders v. Farwell, 1 Mont. 599. Special demurrer on ground court has no jurisdiction of the person or of the subject-matter of the action, constitutes a waiver. — Olcese V. Justices' Court, 156 Cal. 82, 103 Pac. 317. !> Tewalt V. Irwin, 164 111. 592, 46 N. E. 13. 10 Webster v. Wheeler, 119 Mich. 601, 78 N. W. 456. See, also, footnote 7, this sec- tion. 11 Lane Bros. & Co. v. Bauser- man, 103 Va. 146, 106 Am. St. Rep. 872, 48 S. E. 857. 12 Hayes v. Shattuck, 21 Cal. 51; Shay V. Superior Court, 57 Cal. 542; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547 (after unsuccess- ful motion to vacate service of process); First Nat. Bank v. Washington County, 17 Idaho 306, 317, 105 Pac. 1056; Maxwell v. Deens, 46 Mich. 35, 8 N. W. 561; Dunlap V. Byers, 110 Mich. 109, 114, 67 N. W. 1067; Improved- Match Co. v. Michigan Mut. Fire Ins. Co., 122 Mich. 256, 80 N. W. 1088 (although motion to quash summons and service previously overruled) ; Pearce v. Bogert, 10 Daly (N. Y.) 277 (objection to ser- vice of process being overruled) ; Rogue River Min. Co. v. Walker, 1 Ore. 341. 13 Squires v. Broom Common Pleas, 10 Wend. (N. Y.) 600. 14 Penn Tobacco Co. v. Leman, 109 Ga. 428, 34 S. E. 679. 15 See: Eldridge v. Kay, 45 Cal. 49; Lander v. Flemming, 47 Cal. 614; Olcese v. Justices' Court, 156 Cal. 82, 103 Pac. 317; Kinkade v. Myers, 17 Ore. 471, 21 Pac. 558. Any other relief asked will con- stitute a waiver. — Olcese v. Jus- tices' Court, 156 Cal. 82, 103 Pac. 317. 316 ch. XL] CURE BY SUBSEQUENT PROCEEDINGS. § 240 it has been said that an immaterial cross-examination of the person serving the process as to his nationality and occupation, by an attorney specially appearing for the purpose of objecting to the sufficiency of the service of process on the ground that the person serving the same was a minor and not competent to make the service, does not constitute a waiver of the latter objection.^® And it has been said to be no waiver of defects in a summons to confess judgment on an inter-plea of a third party, after motion to quash the summons has been overruled.^'^ § 240, Cure by subsequent peoceedings — Defects WHICH MAY be CURED. Subscqucut proceedings may or may not cure defects and irregularities in the original writ of process, or in the service or return of service of process, depending upon the character of the defect com- plained of and the nature of the subsequent proceedings. Thus, an alias summons and a personal service thereof cures, — or rather, renders immaterial, — a defect in an affidavit for an order for service of process by publication of summons ;^ defective return to the service of process is cured by a subsequent sufficient return ;- judgment cures irregularities in the summons, or in the service thereof, not objected to, where the court has jurisdiction of the subject-matter of the action,^ — e. g., the omission of the Christian name of an infant defendant, there being but one infant defendant, and he having been properly served ;"* nunc pro tunc amendment cures a mere irregu- larity in the service of a process f recitals in judgment 16 Gilson V. Kuenert, 15 S. D. 3 Artope v. Macon & B. R. Co., 291, 89 N. W. 472. 110 Ga. 346, 35 S. E. 657. 17 State V. Parks, 34 Okla. 335, 4 Gravelle v. Canadian & Amer- 126 Pac. 242. j^^^ Mortgage & T. Co., 42 Wash. iMcKlbben v. McKibben. 139 ^^ ^^ ^^^ ^^ Cal. 448, 73 Pac. 143. 2 Norton v. Meader. 4 Sawy. 5 Baumeister v. Demuth, 84 App. 603, Fed. Cas. No. 10351; affirmed, Div. (N. Y.) 394, 82 N. Y. Supp. 78 U. S. (11 Wall.) 442, 20 L. Ed. 831 ; affirmed. 178 N. Y. 630. 71 184. N. E. 1128; Fink v. Wallach, 109 317 §2-41 CODE PLEADING AND PRACTICE. [Pt. I. being held sufficient to show service upon defendant,'' it has been further held that <*; recital in a judgment recov- ered in a proceeding that "default of defendant was duly entered," cured irregularities' and technical defects in a return to the service of the process,'' — e. g., caused by tlie failure of the person serving the process to state in his affida\at of service, attached to the return, that at tlie time of making the service he was an adult citizen.'^ Soundness of doctrine last announced is open to very serious doubt, for the reason that the statement as to age and citizenship is a statutory requirement and necessai-y to show capacity, under the statute, to make the service of the process, and a failure of the affidavit to the return of service to show this statutory requisite is not a "tecli- nical," but a jurisdictional, defect, because without au thority on the part of the person serving the process the court acquires no jurisdiction for any purpose. Recitals in a judgment can not be allowed to contradict the plain statements in the return of service, or to help out i\n otherwise jurisdictionally-defective return. § 241. Defects which are not cured. There av<' many defects and irregularities in process and the service or return thereof which are not cured by subsequent pro- ceedings, among which are : The court acquiring no juris- App. Div. (N. Y.) 718, 96 N. Y. cess is merely ground for motion Siipp. 543. to set aside the summons. — Pec!< Jurisdiction defect, rule is v. Strauss, 33 Cal. 678; Sodini v. otherwise.— See, post, § 241, foot- Sodini, 94 Minn. 303, 110 Am. St. note 3. Rep. 371, 102 N. W. 862. uAlderson v. Bell, 9 Cal. 315; s Peck v. Strauss, 33 Cal. 678; Lick V. Stockdale, 18 Cal. 219, 223; Burke v. Interstate Savings & Meredith v. Santa Clara Mining L. Assoc, 25 Mont. 315, 321, 322, Assoc, 60 Cal. 617, 622; Lyons v. 324, 87 Am. St. Rep. 416, 64 Pac. Roach, 84 Cal. 27, 29, 23 Pac. 1026; 879. Kahn v. Matthai, 115 Cal. 689, 692, 9 Peck v. Strauss, 33 Cal. 678; 47 Pac. 698; Galpin v. Page, 1 Burke v. Interstate Savings & Sawy. 309, 325, 327, Fed. Cas. No. L. Assoc, 25 Mont. 315, 321, 322, 5205. 324, 87 Am. St. Rep. 416, 64 Pac. 7 Irregularity in service of pro- 879. 318 ell. XL] DEFECTS NOT CURED. , § 241 diction over a nonresident defendant because of a defec- tive or illegal service of the process, the proper service of a notice of appeal upon such defendant will not cure the defect in the service of the original process, or confer upon the appellate court jurisdiction over such defen- dant.^ A judgment rendered in the proceeding does not cure the defect or irregularity in the service of the process by the plaintiff himself.- A nunc pro tunc order will not cure a jurisdictional defect.^ A personal action com- menced against a nonresident, but no effective service of process secured, because personal service was made out of the jurisdiction of the court and out of the bailiwick of the officer making the service, a subsequent amendment of the complaint converting the personal action into a real action, does not cure the defect in the service of the original process by relation, or in any other way.^ Recital in a judgment which is rendered after an insufficient ser- vice of process by publication, that proof has been made that the summons had been legally served upon the defen- dant, and that his time for answering had expired, does not cure the defective service or conclude the defendant ;"' and a recital that due service of process was made, where the return purports to set out the manner in which the service was made, and the mode set out is insufficient, such recital in the judgment or decree wdll not aid the return.'' Substituted service of summons which is insufficient to confer jurisdiction on the court over the person of the 1 Johnson v. Brafford, 114 Ky. 4 Huff v. Shepard, 58 Mo. 242. 96, 70 S. W. 193. 5 Yolo County v. Knight, 70 Cal. ■2 Toenniges v. Drake, 7 Colo. 430, 11 Pac. 662. 471, 4 Pac. 790. « See: Trimble v. Longworth, 13 :i Fink v. Wallach, 47 Misc. Ohio 431; Heatherly v. Hadley, 4 (N. Y.) 247, 95 N. Y. Supp. 247; de- Ore. 1, 15; Xorthcut v. Lemery, cision reversed on another point, 8 Ore. 322; Knapp v. Wallace, 50 109 App. Div. (N. Y.) 718, 96 N. Ore. 348, 354, 126 Am. St. Rep. Y. Supp. 543. 742, 92 Pac. 1057; Fishburn v. A mere irregularity, the rule is Landershausen, 50 Ore. 368, 373, otherwise.— See, ante, § 240, foot- 15 Ann. Cas. 975, 14 L. R. A. (N. note 5. S.) 1234, 92 Pac. 1064. § 241 CODE PLEADING AND PRACTICE. [Ft. I, defendant, because of jurisdictional defects in the return, a subsequent personal service upon the defendant of notice of an application for leave to amend the declara- tion, does not cure the defective service and confer juris- diction on the court.'^ 7 King V. Davis, 137 Fed. 222; affirmed, in Blankenship v. King, 85 C. C. A. 348, 157 Fed. 676. 320 CHAPTER XII. TROCEEDINGS TO PROCURE JURISDICTION ACCEPTANCE AND WAIVER OF SERVICE. § 242. Acceptance or acknowledgment of service — In general. § 243. Collusive acceptance. § 244. Place of acceptance. § 245. Time of acceptance. § 246. Must be in writing. § 247. Nonresident defendant. § 248. Proof of genuineness of signature. § 249. Who may accept service. § 250. Waiver of process or of service thereof — In general. § 251. What constitutes a waiver. § 252. What does not constitute a waiver. § 25G. Who may waive. § 254. Who may not waive. § 242. Acceptance or acknowledgment of service — In general. In many of the jurisdictions there are stat- utes regulating the acceptance or acknowledgment of service of process; and where these statutes exist they must be strictly pursued in order to confer jurisdiction upon the court over the person of the defendant.^ An acceptance or acknowledgment of service endorsed upon the process and signed by the defendant is usually a suf- ficient service of process,^ or sufficient proof of service of process,^ where the signature of the defendant is prop- erly proved.^ Acceptance or acknowledgment of service 1 Court seeking to acquire juris- 2 Earhu v. Ware, 9 Port. (Ala.) diction by a course specially 291; Houghton v. Spear, 4 Ala. pointed out by statute, strict com- 257; Lewis v. State Bank, 4 Ark. pliance necessary. — Heatherly v. 257; Banks v. Banks, 31 111. 161. Hadley, 4 Ore. 1, 14; Northcut v, 3 Culmer v. Cline, 22 Utah 216, Lemery, 8 Ore. 323. See Kelley v. 61 Pac. 1008. Kelley, 161 Mass. Ill, 118, 42 Am. 4 As to proving signature of de-» St. Rep. 389, 25 L. R. A. 806, 36 N. fendant, see, post, § 248. E. 837. I Code PI. and Pr.— 21 321 §§243,244 CODE PLEADING AND PRACTICE. [Pt. I, does not affect tlie question of jurisdiction of the court/' — fdtliough it has been said to estop the defendant to deny the jurisdiction of the court,''' — it does away with the necessity of service of the process merely/ leaving all other questions open, simply being equivalent to a ser^dce by the officer to whom the process is directed made in his bailiwick,* and does not deprive of the right to defend'* or make any technical objection. Admission of service of a copy instead of the original, has been said to be imma- terial.^'' § 243. Collusive acceptance. An acceptance or acknowledgment of service of process must be made by the defendant to be bound, or by an agent specially au- thorized in this particular.^ A collusive acceptance by a person not authorized will of course be a nullity. Thus, in proceedings for the condemnation of land by a railroad company, service of the process was made upon a person who was in no way connected with the defendant, and whom representatives of the railroad company had pro- cured to go upon the premises for the purpose of having service made upon him so as to bind the defendant. The court say: **The service was clearly illegal, and knowm to be so by the representatives of the railroad who pro- cured his action, and there was no jurisdiction" acquired by the court. - ^ 244. Place of acceptance. Some of the statutes regulating the acceptance of service of process require that the place of acceptance shall be given, and where there 5 Washington v. Barnes, 41 Ga. 9 Ochus v. Sheldon, 12 Fla. 138. ?,07. 10 Maples v. Mackey, 15 Hun <; Franklin v. Conrad-Stanford (N. Y.) 533. Co., 70 C. C. A. 171, 137 Fed. 737. i As to who may accept or " Washington v. Barnes", 41 Ga. acknowledge service of process, 307; Donlevy v. Cooper, 2 Nott. & see, post, § 249. McC. L. (S. C.) 548. 2 Dunlap v. Toledo, A. A. & G. s Cheney v. Harding, 21 Neb. 65, Trunk R. Co., 46 Mich. 190, 9 N. 31 N. W. 255. W. 249. 322 eh. XII.] ACCEPTANCE — TIME OP. § 245 is such a provision it must be strictly complied with ;^ but in the absence of statutory requirement the place of accep- tance need not be given.- The object of designating the place of acceptance of service, where such designation is required, is to determine the time when answer must be filed and the period when a default may be taken. ^ Accep- tance out of the jurisdiction of the court and out of the bailiwick of the officer to whom the process is directed, — e. g. in another state, — is sufficient to confer jurisdiction on the court.^ When the place where the writ is served is not stated, the court should assume that it was served within the jurisdiction of the officer to whom it was directed.^ § 245. Time of acceptance. Under statute so re- quiring the time of the acceptance or acknowledgment of service of process must be given.^ Where defendant's attorneys accepted service^ of summons, but attached no date thereto, the date of the return by the sheriff was held to be the true date of the service.^ Acceptance or acknowledgment of service of process may be made before the action is commenced by filing the complaint or other- wise,^ in the absence of prohibitive statutory provisions ;'' where there are prohibitive statutory provisions, accept- ance before commencement of suit confers no jurisdic- tion," but the presumption wall be that the acceptance was 1 Heatherly v. Hadley, 4 Ore. 1. r. Crane v. Brannan, 3 Cal. 192. See, also, ante, § 242, footnote 1. i Heatherly v. Hadley, 4 Ore. 1. -• Alderson v. Bell, 9 Cal. 315; See, also, ante, §242, footnote 1. Maples V. Mackey, 15 Hun (N. Y.) u As to acceptance by attorney 533; Nicholson v. Cox, 83 N. C. of service of process, see, post, 44, 35 Am. Rep. 556; Stoddard §249. Mfg. Co. V. Mattice, 10 S. D. 253, :« Crane v. Brannan, 3 Cal. 192. 72 N. W. 891. 4 James v. Edward Thompson ••! Alderson v. Bell, 9 Cal. 315. Co., 17 Ga. App. 578, 87 S. E. 842. 4 Allurd V. Voller, 107 Mich. 476, r, Logan v. Robertson (Tex. Civ. 65 N. W. 285. App.), 83 S. W. 395. As to acceptance by nonresident « McAnelly v. Ward, 72 Tex. 342, in another state, see, post, § 247. 12 S. W. 206. 323 § 246 CODE PLEADING AND PRACTICE. [Pt. 1, after action was commenced/ Where process was issued and attached to the complaint, but was not served before the return day, and thereafter it was indorsed and signed by the defendant: '^ Service of foregoing complaint ac- knowledged," this was held to be a good acceptance and to confer jurisdiction on the court,^ being a waiver of the issuance of a new process f but acceptance after appear- ance time is not acknowledgment that the complaint and process were legally served before appearance day.^" An acceptance or acknowledgment of service of process after judgment is not equivalent to personal service.^^ § 246. Must be in writing. An acknowledgment of service of summons is only sufficient when reduced to writing and subscribed by the party ;^ a verbal acknowl- edgment is not sufficient;- neither is an endorsement of acceptance made on the process by the sheriff.^ The stat- ute requiring an acceptance or acknowledgment of ser\dce to be endorsed by defendant on the process, dated, signed and witnessed, service by writing a letter to defendant, informing him of the pendency of the suit, and requesting him to accept service, which he did over his own signa- ture, on the same sheet as the letter, and returned it to plaintiff, this was held to be a good service, where the defendant appeared ;^ but it would not have been, within the provision of the statute, if the defendant had not appeared. When a defendant living in another county waives the issuance of a second original process, his T Philadelphia Underw r i t e r s' i Montgomery v. Tutt, 11 Cal. Agency, etc., v. Neurenberg (Tex. 307; Godwin v. Monds, 106 N. C. Civ. App.), 144 S. W. 357. 448, 10 S. E. 1004. 8 McConnell v. McConnell, 135 Compare: Borton v. Nix, 20 Tex. Ga. 828, 70 S. E. 647. 39. Id. 2 Montgomery v. Tutt, 11 Cal. As to waiver, see, post, §§ 250 307. et seq. 3 Vaumeter v. Durham, 31 111. 10 Bell V, Verdel, 140 Ga. 768, 237. 79 S. E. 849. 4 Phillips v. Corey, 1 Ind. Tr. 11 State V. Cohen, 13 S. C. 198. 567, 45 S. W. 119. 324 ell. XII.] ACCEPTANCE NONRESIDENT. §§247,248 acceptance of service may be written on a separate piece of paper and attached to the complaint.'^ §247. NoNKESiDENT DEFENDANT. Under a statute requiring service of process and return of service on a non-resident defendant in order to confer jurisdiction on the court, an endorsement of acceptance of service by a nonresident, made out of the state, has been said to be insufficient under such statute to confer jurisdiction ;^ but the general rule is that acceptance made out of the state by a nonresident is equivalent to personal service out of the state after an order for service by publication, and confers jurisdiction on the court,- although the process is not strictly formal f but such acceptance will not be bind- ing on the defendant unless there was an order for service of process by publication of summons.^ In some juris- dictions, however, such an acceptance is treated as an order for service by publication duly made.^ § 248. Proof of genuineness of signature. Where a defendant accepts service, but does not appear, his sig- nature does not prove itself, but the service must be proved by proving the genuineness of the signature, or it will be insufficient to confer jurisdiction on the court ;^ an endorsement of acceptance or acknowledgment of serv- ice and signature in the handwriting of the sheriff serving 5 James v. Edward Thompson Alderson v. Bell, 9 Cal. 315; Gate- Co., 17 Ga. App. 578, 87 S. E. 842. wood v. Rucker, 17 Ky. (1 T. B. 1 Chickering v. Farlis, 26 111. Mon.) 21; South v. Carr, 23 Ky. 507. (7 T. B. Mon.) 419; Jackson v. 2 AUurd V. Voller, 107 Mich. 476, Speed, 26 Ky. (3 J. J. Marsh.) 56; 65 N. W. 285; Cheney v. Harding, Kendrick v. Kendrick, 27 Ky. (4 21 Neb. 68, 32 N. W. 64. J. J. Marsh.) 241; Lyne v. Bank 3 Gay V. Grant, 101 N. C. 206, of Kentucky, 28 Ky. (5 J. J. 8 S. E. 99, 106. Marsh.) 545; Johnson v. Del- 4Ricker v. Vaughan, 23 S. C. bridge, 35 Mich. 436; Bozman v. 187. Brower, 7 Miss. (6 How.) 43; 5 Smith V. Chilton, 77 Va. 535. Litchfield v. Burwell, 1 N. Y. Code 1 Welch V. Walker, 4 Port. (Ala.) Rep. N. S. 42, 5 How. Pr. 341; 120; Norwood v. Riddle, 1 Ala. Moffitt v. McGrath, 25 Ore. 478, 195; Gibson, ex parte, 10 Ark. 572; 480, 36 Pac. 578. 325 §249 CODE PLEADING AND PRACTICE. [I't. I, the process is not sufficient.- It has been said that courts take judicial notice of the signatures of their offices as such,^ but where an attorney, though an ** officer of the court," accepts service for his client, his signature must be proved.^ When, therefore, the proof of service of process consists of the written admissions of defendants, such admissions, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the parties ; in the absence of such evi- dence, the court can not notice them.^ § 249. Who may accept service. We have already seen that acceptance or acknowledgment of service of process must be by the party affected, or by some one acting for him thereunto duly authorized.^ An attorney of the court, accepting service for his client, is presumed to be duly authorized, in the absence of a showing to the contrary,- and is usually sufficient^ to give the court juris- diction.^ However, it has been said that acceptance by an attorney not of record will not be sufficient, in the absence of appearance of the defendant.'' The attorney for the plaintiff can never accept service for the defend- ant.® A clerk in an attorney 's office, authorized to serve papers and accept service of papers in cases in which the attorney is retained, has no authority to accept service of process in an action against the attorney.^ A curator ad hoc may not accept service of process;^ and a general 2 Norwood V. Riddle, 9 Port. 3 Marling v. Robrecht, 13 W. Va. (Ala.) 425. 440. sAlderson v. Bell, 9 Cal. 315; 4 Hendrix v. Cawthorn, 71 Ga. Fenton v. American Jewelry Co., 742 51 Neb. 395. 396. 70 N. W. 931. /g^^^^^ ^ g^^^^^ ^^ ^^ ^^ 4 Masterson v. Le Claire, 4 Mmn. •1 Sleeper v. Sleeper, 1 Hand. (Ohio) 530. 163. sAlderson v. Bell, 9 Cal. 315; Moffitt V. McGrath, 25 Ore. 478, '^ Lower v. Wilson, 9 S. D. 252, 480, 36 Pac. 578. 62 Am. St. Rep. 865, 68 N. W. 545. 1 See, ante, § 243. s Mitchell & Ramelsburg Furni- 2 Purcell V. Bennett, 68 N. J. L. ture Co. v. Sampson, 40 Fed. 805. 519. 53 Atl. 235. 326 ell. XII.] WHO MAY ACCEPT — WAIVER, § 250 ag-ent can not accept service of process, unless specially authorized f nor can a general guardian accept service on an infant.^** A sheriff may accept service of a petition for an injunction to restrain him from selling exempt property, in the absence of statutory prohibition." A son, not a member of the family and not duly authorized thereto, can not accept service of process for his father. ^- Statutory agent of a foreign corporation, designated as the person upon whom service of process may be made, can not admit service of process or waive summons ;'^ and where no such statutory agent has been designated, an agent or officer of the foreign corporation can not accept service.^* Yet under a statute pro\T:ding that service of process against a foreign corporation, doing business within the state, may be made upon its agent, it was held that such agent may accept service of process;'"' but this decision is thought to be too broad, for the reason that the authority of the agent to accept service was not in question, and the point as thus decided not being involved, the holding is pure dictum. § 250. Waiver of process or of service thereof — In GENERAL,. A waivcr of the service of a process by indorse- ment on the original writ, over the signature of the de- 9 Leblanc v. Perroux, 21 La. New River Mineral Co. v. Ann. 26. Seeley, 56 C. C. A. 505, 120 Fed. 10 Clark v. Thompson, 47 111. 25, 193. 95 fi^fy^ Qec. 457. Power of attorney authorizing acceptance of process as well as service thereof, the rule of course is otherwise. — See South Pub. Co. n Tinney v. Vittur, 134 La. 549. ^ ^.^^ ^^^^^^ g^ ^^^ ^^ Y., 41, 64 So. 407. jjg^ 21 N. Y. Supp. 675, 1056; af- i:: Finney v. Clark, 86 Va. 354, firmed, 137 N. Y. 610, 33 S. E. 10 S. E. 569. 744. 13 Bennett v. Supreme Tent i4 New River Mineral Co. v. Knishts of Maccabees of the Seeley, 56 C. C. A. 505, 102 Fed. World, 40 Wash. 431, 2 L. R. A. 193. (N. S.) 389, 82 Pac. 744. See i5 Atlantic & G. R. Co. v. Jack- Farmer V. National Life Assoc, sonville, P. & M. R. Co., 51 Ga. 50 Fed. 829. 458. 327 As to service on infant of pro- cess, see, ante, § 198. § 251 CODE PLEADING AND PRACTICE. [Pt. I, fendant, is equivalent to service,^ and is good even when dated before the conunencement of the action by the filing of a complaint, in the absence of a prohibitive statute.- A copy required to be served in order to constitute a good service, it may be waived by parol f and a waiver of the reading of the summons, where reading is required to constitute a sufficient service, does not affect the validity of the ser\T.ce.^ Agreement to receive notice of a legal proceeding is a waiver of a formal service of process, and binding upon the party.^ Appeal from a justices' court judgment to a court in which the trial must be de novo, is a waiver of defects in process or in the service thereof.® § 251. What constitutes a waiver. Indorsement of acknowledgment of due and legal ser\'ice, and a waiver of copy, process, etc., constitutes a waiver of a copy of the complaint and of the process thereto.^ Where the holder of the legal title to land disclaims all interest therein, and expresses a willingness to convey the legal title to any one in whom the equitable title rests, this constitutes a waiver of a technical service of summons to make him a party to the action.^ Where process is attached to a complaint for a divorce alleging the defendant to be a resident of the county in which the action is brought, a waiver of service, duly indorsed upon the complaint and signed by the defendant, as follows: *' Service of foregoing com- plaint acknowledged. Jurisdiction of superior court of Fulton county recognized," held to constitute a waiver of 1 Johnson v.Monnell, 13 Iowa 300. 6 Gulf Pipe Line Co. v. Vander- 2 Battle V. Eddy, 31 Tex. 368. berg, 28 Okla. 637, Ann. Cas. As to acceptance of service or 1912D, 407, 34 L. R. A. (N. S.) 661, acknowledgment of service before 115 Pac. 782. complaint is filed, see, ante, § 245, Full collection of authorities in footnotes 4 and 5. notes, Ann. Cas. 1912D. 411, and 3Chapman v. Allen, Morr. 34 L. R. A. (N. S.) 661. (Iowa) 23. 1 Carter v. Penn, 79 Ga. 747, 4 4 Casteel v. Hiday, 13 Ind. 536. S. E. 896. 5 Spencer v. Haughton, 68 Cal. 2 Harrington v. Williams, 31 82, 89, 8 Pac. 679. Tex. 448. 328 I ell. XII.] WAIVER OF PROCESS — WHAT IS. §§ 252, 253 issuance of process, and also of any objection to jurisdic- tion of the court on the ground that the defendant resided in another county.* § 252. What does not constitute a waiver. Ap- pearance by an attorney for a nonresident defendant in a motion to quash the service of process in an action to try title to land, who secures a continuance of the hearing without disclosing any service of the process on the defen- dant, does not constitute a w^aiver of legal service of proc- ess ;^ and a mere entry in the record that the cause was "continued by consent of parties," in a cause in which one only of several defendants was served with process, does not constitute a waiver of service of process or con- fer jurisdiction on the court as to defendants not served."^ Statements made in an affidavit in support of a motion to set aside a default, can not be deemed a waiver of the service of process.* § 253. Who may waive. The party to be affected by the determination of the action may waive the issuance or the ser^dce of process ;^ any other person can not unless specially authorized in the premises. This is the general rule of law\- But it has been said that a general guar- dian,* or a natural guardian,^ may waive the issuance or 3 McConnell v. McConnell, 135 484, 486; Emeric v. Alvarado, 64 Ga. 828, 70 S. E. 647. Cal. 529, 597, 2 Pac. 48, 3 Pac. 105; 1 Hopkins v. State (Tex. Civ. Richardson v. Loupe, 80 Cal. 490, App.), 28 S. W. 225. 499, 22 Pac. 227; Redmond v. 2 Snow V. Grace, 25 Ark. 570. Peterson, 102 Cal. 595, 41 Am. St. Rep. 204, 36 Pac. 923; Banta v. 3 Doerfler v. Schmidt, 64 Cal. calhoon, 9 Ky. (2 A. K. Marsh.) 265, 30 Pac. 816. jg^. ^nkeny v. Blackston, 7 Ore. 1 See, ante, §§542, 550. 407, 413; Cowan v. Anderson, 47 2 See, post, §254. Tenn. (7 Caldw.) 284; Masson v. As to waiver by fiduciaries, in- Swan, 53 Tenn. (6 Heisk.) 450; eluding general guardian, see ex- Scott v. Porter, 70 Tenn. (2 Lea) haustive note, 32 L. R. A. 681. 224; Simpson v. Belvin, 37 Tex. As to necessity for service of 674; Weisley v. Kenyon, 28 Vt. infant, see note, 89 Am. Dec. 186. 6; Sprague v. Litherberry, 4 McL. 3 Gronfier v. Puymirol, 19 Cal. 442, Fed. Cas. No. 13250. 629; Smith v. McDonald, 42 Cal. 4 Fuller v. Smith, 49 Vt. 253. 329 § 254 CODE PLEADING AND PRACTICE. [Pt. I, service of process on an infant, even where real estate is involved in the action;^ however, this doctrine has not gone unchallenged.^ In California, in all actions against an infant or involv- ing his interests, except the one instance hereafter noted in this section, the statute requires that there must be personal service of all process upon an infant under the age of fourteen years residing within the state, and also upon his father, mother, or guardian ;''' but a subsequent section of the code provides that service upon the guar- dian shall be equivalent to service upon the infant, and also that the guardian may appear and waive all process and notice, in an action concerning the estate of a deceased person in which the infant is interested.^ In the case of an insane or otherwise incompetent person the same pro- "\dsions for service on the guardian is made by the same sections of the code, but it has been held that there must be personal service upon the insane or otherwise incom- petent person.*^ § 254. Who may not waive. An attorney may not waive service of process upon an infant defendant;^ and an attorney-in-fact can not waive service of process with- out special authority so to do.- Curator ad hoc can not 5 Ewing V. Higby, 7 Ohio, pt. I, See, also, ante, § 174. 198, 28 Am. Dec. 633; Ewing v. 8 See Kerr's Cyc. Cal. Code Civ. Hollister, T Ohio. pt. II, 138; Scott Proc, § 1722. V. Porter, 70 Tenn. (2 Lea) 224. 9 Justice v. Ott, 87 Cal. 530, 532, Tiient.^^ If a person is not named as a party to the action or served Avith summons, but files an answer which i-ocites that he was sued under a certain fictitious name, to which no objection is made, and the case is tried and judg- ment rendered against liim, he is bound by such judgment. The non-insertion of his true name by amendment to the complaint does not render the judgment void on a collat- eral attack.^^ But an aj^pearance, to be effective, must be with knowledge that an action is pending, and with a full intention to appear therein. ^- Substantial defects in writ of process, — e. g. not naming the return day, — as a want of service of the process in the manner required by law, are not waived by an appearance after judgment and moving it set aside the judgment for such defects.^-'' AVlien an action was brought in a court, the judge of which was disqualified from hearing the case on account of relationship to one of the defendants, some of the other defendants not appearing, the clerk entered 857, 52 N. W. 824; Carpentier v. v. Clendenin, 3 Mont. 44, 49; Minturn, 65 Barb. (N. Y.) 293; Yorke v. Yorke, 3 N. D. 343, 55 Fee V. Big Sand Iron Co., 13 Ohio N. W. 1095; State v. Cohen, 13 S. St. 563; Elliott v. Lawhead, 43 C. 198. Ohio St. 171, 1 N. E. Rep. 577; Judgment without parties, how- Grantier v. Rosencrance, 27 Wis. ever perfect in form, is a nullity. 488 ; Anderson v. Coburn, 27 Wis. —Wilcoxson v. Burton, 27 Cal. 228, 558; Ins. Co. v. Swineford, 28 Wis. 37 Am. Dec. 66. See Ryan v. Daly, 257; Alderson v. White, 32 Wis. g ^^1. 238. 308. !) Gray v. Hawes, 8 Cal. 562. See: Moore v. Watkins, 1 Ark. 268; Briggs V. Sneghan, 45 Ind. 14; Boals V. Shules, 29 Iowa 507; ^av. Union, 75 Cal. 134, 7 Am. St. Melhop V. Doane, 31 Iowa 400, 7 ^^P' ^^S, 16 Pac. 753. Am. Rep. 150; Rea v. Rea, 123 i^Crary v. Barber, 1 Colo. 172. Iowa 245, 98 N. W. 789; Shaw v. 1.'. See authorities in footnote 9, Rowland, 32 Kan. 154; Godfrey v. this section; also United States Valentine, 39 Minn. 336, 12 Am. v. Yeates, 47 U. S. (6 How.) 605, St. Rep. 657, 40 N. W. 163; Black 12 L. Ed. 575. 335 10 Godfrey v. Godfrey, 3 N. D. 343, 55 N. W. 1095. 11 Johnston v. San Francisco § 256 CODE PLEADING AND PRACTICE. [Pt. I, a default against them. It was held that the entry of the default, being a ministerial act, was rightly made.^* If it does not appear affirmatively upon the face of a record of a court of general jurisdiction that the court had juris- diction of the defendant, that fact will be presumed, unless tlie record shows affirmatively that no jurisdiction was acquired ;^^ and that fact can be shown only by the record.^® § 256. As TO WHAT CONSTITUTES APPEARANCE. We have already seen that to constitute an effective appear- ance there must be a knowledge that an action is pending and a definite intention to appear therein.^ It is not every act of, or proceeding taken by, a person made a party to an action that constitutes an appearance therein. Thus, aiding in and encouraging a suit does not constitute an appearance and make the person so aiding and encourag- ing a party thereto.- By filing written objections to the manner of serving a writ of process and challenging its sufficiency, a person does not necessarily appear in the ac- tion.^ An order of the court changing the place of trial to another county and continuing the cause, made on the ap- plication of a defendant who has specially appeared, only, does not constitute an appearance in the cause ;^ and a 14 People V. De Carillo, 35 Cal. the action. — Honeycutt v. Nyquist, 37; Dudley v. White, 44 Fla. 269, Peterson & Co., 12 Wyo. 183, 31 So. 831. 109 Am. St. Rep. 975, 74 Pac. 90. 15 Carpentier v. Oakland, City of, Attendance at trial to watch the 30 Cal. 439; Seaboard Nat. Bank proceedings does not constitute ar V. Ackerman, 16 Cal. App. 59, 116 appearance in the case.— Crary v. Pac. 93. Barber, 1 Colo. 172, 174; McCoy v. 16 Carpentier v. Oakland, City ^«"' ^ ^ash. 504. 510. 20 Pac. 595. of, 30 Cal. 439. 1 See, ante, § 255, footnote 12 3 See: Crary v. Barber, 1 Colo 172, 174; Law v. Nelson, 14 Colo. 2 State V. King, 64 W. Va. 560, 409, 24 Pac. 2; Nye v. Liscomb, 38 63 S. E. 474. Mass. (21 Pick.) 263; Malcolm v. Acceptance of service of motion Rogers, 1 Cow. (N. Y.) 1. for order to sell property attached. As to special appearance, see, by attorney of defendant, does not post, §§ 263 et seq. constitute a general appearance in -i Tapley v. Doane, 3 Colo. 22. 336 Lii. xm.j WHAT CO^iSllTUTKS APPEARANCE. § 2oG mere recital in a transcript upon a writ of error, that the defendant entered his appearance by some unnamed at- torney, does not show actual appearance.^ A notice given by an attorney to plaintiff's attorney, that the defendant will move before a court commissioner for the dissolution of an attachment issued in the cause, does not constitute an appearance in the action;^ and where a defendant appears specially for the purpose of taking advantage of an irreg- ular process by a motion to dismiss, this does not consti- tute an appearance and a waiver of his rights so as to cure the defect.'^ An answer to the merits does not waive the benefit of an exception by defendant to an order deny- ing a motion by him to quash or set aside the service of a summons;^ although a contrary doctrine is laid down in some California cases, it being there held that by answer- 5 Anderson v. Agnew, 38 Fla. 30, 38, 20 So. 766. 6 Glidden v. Packard, 28 Cal. 649; Belknap v. Charlton, 25 Ore. 47, 34 Pac. 758. See, also, footnote 25, this sec- tion. " Deidepheimer v. Brown, 8 Cal. 339; Layman v. Milton, 44 Cal. 630; Lander v. Fleming, 47 Cal. 614; Thomas v. Thomas, 98 Me. 188, 56 Atl. 652. As to special appearance, see, post, §§ 263 et seq. 8 Deidesheimer v. Brown, 8 Cal. 339; Lyman v. Milton, 44 Cal. 628, 635; Kent v. West, 50 Cal. 185; Arroyo Ditch & Water Co. v. Superior Court, 92 Cal. 47, 52, 27 Am. St. Rep. 94, 28 Pac. 54; Mc- Donald V. Agnew, 122 Cal. 448, 450, 55 Pac. 125; Converse v. Warren, 4 Iowa 172; Dickerson v. Burling- ton & M. R. Co., 43 Kan. 702, 23 Pac. 936; Block v. Clendenin, 3 Mont. 49; State ex rel. Lane v. District Court, 51 Mont. 503, 506, L. R. A. 1916E. 1079, 154 Pac. 200; Miner v. Francis, 3 N. D. 549, 553, 58 N. W. 343; Chicago Building & Mfg. Co. V. Pewthers, 10 Okla. 724, 729, 63 Pac. 964; Austin Mfg. Co. (F. C.) V. Hunter, 16 Okla. 86, 86 Pac. 293; St. Louis & S. F. R. Co. V. Clark, 17 Okla. 562, 565, 87 PaV 430; Kinkade v. Myers, 17 Ore. 470, 472, 21 Pac. 557; Sealey V. California I^umber Co., 19 Ore. 94, 24 Pac. 197; Benedict v. John- son, 4 S. D. 387, 392, 57 N. W. 66; Fisher, Sons & Co. v. Crowley, 57 W. Va. 319, 4 Ann. Cas. 282, 50 S. E. 424; Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Southern Pac. Co. V. Denton, 146 U. S. 202, 206, 36 L. Ed. 942, 13 Sup. Ct. Rep. 44; Lung Chung v. Northern Pac. R. Co., 10 Sawy. 17, 20, 19 Fed. 256; Stonega Coal & Coke Co. v. Louisville & N. R. Co., 139 Fed. 271; Sanderson v. Bishop, 171 Fed. 771; Foster Milburn Co. v. Chinn, 122 C. C. A. 577, 202 Fed. 177. See, also, numerous cases cited in 10 Rose's Notes to U. S. Rep., 2d ed., pp. 608-611. I Code PI. and Pr.— 22 337 §256 CODE PLEADING AND PRACTICE. [Pt. I, ing to the merits, after a motion to quash has been denied, the defendant waives his objections to all defects in the process or in the service thereof,'' — which is against the overwhelming weight of authority and the better reason, and the cases have not been followed in that state. A de- fendant shall be deemed to appear in an action, and can rightly be said to appear in an action only, when he answers, demurs, or gives the plaintiff a written notice of his appearance, or when an attorney gives notice of ap- pearance for him/** or files a motion asldng for affirmative Stonega Coal & Coke Co. v. Louisville & N. R. Co., 139 Fed. 271. Contesting on writs after special appearance as waiver of objection to jurisdiction over person. — See note, 16 L. R. A. (N. S.) 178. Filing cross-complaint and ask- i n g affirmative relief defendant waives his objection and submits his person to the jurisdiction of the court. — Austin Mfg. Co. (F. C.) V. Hunter, 16 Okla. 86, 86 Pac. 293. Taking part in trial under pro- test by attorney for defendant who makes a special appearance to test validity of the service of pro- cess, does not constitute a general appearance. — Dickerson v. Burling- ton & M. R. Co., 43 Kan. 702, 23 Pac. 936. Waiver of objection only where defendant pleads to the merits in the first instance. — Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237. Without saving exception to order of court overruling motion, by filing general demurrer, de- fendant waives all objection to want of jurisdiction in court or to infirmities in the process or in the service thereof. — Polk v. Martin, 82 Wash. 226, 144 Pac. 42. 9 Desmond v. Superior Court, 59 Cal. 274; Sears v. Starbird, 78 Cal. 225, 231, 20 Pac. 547; Clarke, In re, 125 Cal. 388, 58 Pac. 22; Thompson v. Alford, 135 Cal. 52, 66 Pac. 983. See: State ex rel. Meckey v. District Court, 40 Mont. 359, 135 Am. St. Rep. 622, 106 Pac. 1098; Corbett v. Physicians' Casualty Co., 135 Wis. 513, 16 L. R. A. (N. S.) 177, 115 N. W. 368. Ki See Kerr's Cyc. Cal. Code Civ. Proc, § 1014; Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470: Pacific Paving Co. v. Vizelich, 141 Cal. 4, 74 Pac. 352. Answer not purporting to be made under special appearance, on demurrer or motion overruled, an exception to the order made on special appearance not being saved, waives the special appear- ance and constitutes a special appearance.— See: Hobson v. New Mexico & A. R. Co., 2 Ariz. 171, 11 Pac. 545; Walters v. Field, 29 Wash. 558, 70 Pac. 66; Morris v. Healy Lumber Co., 33 Wash. 451, 74 Pac. 662: Larsen v. Allan Line Steamship Co., 37 Wash. 555, 80 Pac. 181; Gaffner v. Johnson, 39 Wash.. 437, 81 Pac. 859; Hodges V. Price, 38 Wash. 1, 80 Pac. 202. Appearance of taking of deposi- tions in case in which court had 338 i eh. XIII.] WJIAT CONSTITUTES .VPPEARAXCE, § 250 relief, and the fact that the motion is made orally instead of being in writing does not affect the validity of the appearance. ^^ The entry of a general appearance and no jurisdiction on account of residence of parties, and objec- tion previously raised by de- murrer which is undisposed of, does not constitute general ap- pearance and waiver of objection. — California Pine Box & Lumber Co. V. Mogan, 13 Cal. App. 65, 108 Pac. 882; Willman v. Fried man, 4 Idaho 209, 95 Am. St. Rep 59, 38 Pac. 937; Lockabaugh v Epperson, 28 Okla. 472, 114 Pac 738; Belknap v. Charlton, 25 Ore 41, 34 Pac. 758; Walla Walla Print Ing & Pub. Co. V. Budd, 2 Wash Tr. 336, 5 Pac. 602; McCoy v. Bell, 1 Wash. 504, 20 Pac. 595; Cornell University v. Denny Hotel Co., 15 Wash. 433, 46 Pac. 654; Calhoun V. Nelson, 47 Wash. 617, 92 Pac. 448; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 35 L. R. A. (N. S.) 258, 101 Pac. 233; Steenstrup v. Toledo Foun- dry & Machine Co., 66 Wash. 101, Ann. Cas. 1913C, 427, 119 Pac. 16; Elliott v. Toledo Foundry & Machine Co., 66 Wash. 701, 119 Pac. 19; Bank of Chadron v. Anderson, 6 Wyo. 518, 48 Pac. 197. Appear without leave of court, at any time, after time for appear- ing has passed, where no rule has been taken against him, and de- fendant after such appearance is not in default. — State ex rel. Han- nebohl v. Superior Court, 85 Wash. 663. 149 Pac. 16. Appearance may be without answering, demurring, or giving written notice to the plaintiff. — Roethler v. Cummings, 84 Ore. 442, 165 Pac. 355. Mere agreement to appear in an action and waive service of pro- cess does not constitute an ap- pearance and give court jurisdiction. — Prescott v. Farm- ers' Nat. Bank, 9 Kan. App. 886, 53 Pac. 769. — Written agreement to appear executed before suit i s com- menced as required by statute, consenting that the cause may be tried in a designated county, and waiving the issuance and service of process, does not constitute an appearance, or confer jurisdiction on the court of the county named. — Bradley v. Harwi, 2 Kan. App. 272, 42 Pac. 411. Notice of appearance, to sat- isfy the statute, must be in writ- ing, signed by the defendant or his attorney, informing plaintiff that the defendant has appeared, or does appear, in the action, either generally or specially. — Domer v. Stone, 27 Idaho 279, 149 Pac. 505. Questioning jurisdiction of court in general answer to the merits does not affect the general char- acter of the appearance. — Bank of Chadron v. Anderson, 6 Wyo. 518, 48 Pac. 197. 11 Zobel V. Zobel, 151 Cal. 98, 90 Pac. 191; Everett v. Wilson, 34 Colo. 476, S3 Pac. 211; Hudson Coal Co. V. Hauf, 18 Wyo. 425. 109 Pac. 21. Filed after court adjourns and not acted upon does not consti- tute an apiiearance. — Todd v. De la Mott, 9 Colo. 222, 11 Pac. 90. Jurisdiction of court requisite 's:vj §256 CODE PLEADING AND PRACTICE, [Ft. I, the filing of a printed brief and argument, by a defendant in error, according to the usual practice of the appellate court, is equivalent to a common joinder of error upon the merits. ^2 Taking and perfecting an appeal to that stage in which nothing remains to be done but the minis- terial act of transmitting the papers, constitutes an ap- pearance;^^ so also does an appeal taken to a court in which the issues of law and fact must be tried de novo, and constitutes a waiver of all objections for want of jurisdiction on the part of the lower court over the person of the defendant.^'* A written stipulation entered into by to giving relief asked, appearance general. — Belknap v. Charlton, 25 Ore. 41, 34 Pac. 758; Winter v. Union Packing Co., 51 Ore. 07, 93 Pac. 930. Motion raising question not jurisdictional, which, can be heard on a general appearance only, constitutes a general appearance. —Welch V. Ladd, 29 Okla. 93, 116 Pac. 573. Motion to dismiss, on other than jurisdictional grounds, in- cluded in motion to quash sum- mons, constitutes a general appearance. — Teater v. King, 35 Wash. 138, 76 Pac. 688; Bain v. Thomas, 44 Wash. 382, 87 Pac. 504; Thorp v. Thomas, 44 Wash. 698, 87 Pac. 504; Hudson Coal Co. V. Hauf, 18 Wyo. 425, 109 Pac. 21. Motion to dismiss divorce suit because of condonation, consti- tute s a general appearance. — Jones V. Jones, 59 Ore. 308, 117 Pac. 414. Motion to set aside default judgment, not based on jurisdic- tional grounds, but to let in a defense on the merits, consti- tutes a general appearance. — Welch V. Ladd, 29 Okla. 93, 116 Pac. 573. Motion to vacate order for tem- porary alimony in divorce suit, constitutes a general appearance. — Jones V. Jones, 59 Ore. 30S, 117 Pac. 414. Moving for a continuance con- stitutes an appearance in the action. — Zobel v. Zobel, 151 Cal. 98, 90 Pac. 191. Special appearance converted into general where defendant moving to vacate default because of want of jurisdiction by reason of defective service by publica- tion, by also objection complaint did not state a cause of action, and that the summons did not conform to demand in complaint. — Security Loan & Trust Co. v. Boston & R. S. Fruit Co., 126 Cal. 418, 58 Pac. 941, 59 Pac. 296. 12 Haley v. Elliott, 20 Colo. 199, 37 Pac. 27. 13 Cates V. Mack, 6 Colo. 401. Prosecuting error to set aside orders for allowances to receiver of insolvent bank, constitutes gen- eral appearance by stockholders participating in prosecuting error. — Bank of Newcastle, In re, 15 Wyo. 501, 89 Pac. 1035. 14 Fowler v. Fowler, 15 Okla. 529, 82 Pac. 923; Deming Inv. Co. 340 ch. XIIL] WHAT CONSTITUTES APPEARANCE. §256 a defendant with the attorney of the plaintiff and the attorney of a co-defendant consenting that the action may be tried in another county, constitutes an appearance.^^ A notice signed by attorneys and filed mth the clerk after a complaint has been filed, stating that 'Sve have been retained by and hereby appear for the above-named de- fendant in the above-entitled cause," is a sufficient ap- pearance of the defendant, and is a waiver of summons. ^^ But the mere signing of the name of a firm of attorneys at the end of an affidavit presented by the defendant at the hearing of a motion for an order of the court, to which affidavit no signature of attorneys is required, does not constitute the actual bona fide appearance of such attor- neys for the defendant.^" The filing of a general demur- rer is an appearance in the action, and cures any defect in the process or in the services thereof,^^ except jurisdic- V. Love, 31 Okla. 146, 120 Pac. 635; Griffin Co. (H. L.) v. Howell, 38 Utah 357, 113 Pac. 326. 15 Jones V. Wolverton, 15 Wash. 590, 47 Pac. 36. Stipulation extending time to answer signed by attorney author- ized to represent defendant, con- stitutes a general appearance.— Multnomah Lumber & Box Co. v. Weston Basket & Barrel Co., 54 Ore. 22, 99 Pac. 1046, 102 Pac. 1. ic Dyer v. North, 44 Cal. 157. As to autliority of attorney to bind client in writing only, see Kerr's Cyc. Cal. Code Civ. Proc, §283. As to appearance by attorney, see, post, §§ 271-274. Contesting motion for ciiange of venue, constitutes a general appearance of the defendant, con- fers jurisdiction over his person and waives defects in process and service thereof. — Jones v. Jones, 59 Ore. 308, 117 Pac. 414. 17 Benton v. Budd, 120 Cal. 329, 52 Pac. 851. IS Clarke, In re, 125 Cal. 388. 58 Pac. 22; Olcese v. Justices' Court, 156 Cal. 82, 103 Pac. 317; Kauter v. Entz, 8 Kan. App. 788, 61 Pac. 818; Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 44, 8 Pac. 768; Williams v. Miller, 1 Wash. Tr. 88; State ex rel. Hannebohl v. Superior Court, 85 Wash. 663, 149 Pac. 16. Demurrer on hypothesis court has jurisdiction of the cause and person, is a general appearance which waives all defects and ir- regularities in process or in its s-^rvice. — Smith v. Day, 39 Ore. 531, 64 Pac. 812, 65 Pac. 1055. Filing demurrer to cross com- plaint is an appearance by plain- tiff to such cross-complaint. — Willman v. Friedman, 4 Idaho 209, 95 Am. St. Rep. 59, 38 Pac. 937. 341 256 CODE PLEADING AND PRACTICE. [Pt.I, tional defects.^'-* Entering into a written stipulation that plaintiff could enter judgment at any time, conditioned that defendant was to be granted a stay on certain pay- ments being made, constitutes a sufficient appearance ;-'" but a mere statement by the defendant that the plaintilf need not serve any papers, but could take judgment in the case at any time, does not amount to an appearance in the action.-^ On motion to quash process by defendant not served, contesting motion of plaintiff for leave to amend the return of service, constitutes an appearance in the cause and submission to the jurisdiction of the court;-- and so also does filing a motion to set aside a sheriff" 's sale on foreclosure;-^ but notice of exception to sureties of plaintiff on undertaking in attachment, and demanding that they justify, does not constitute an ap- pearance in the action ;'-^ or notice of motion to dissolve attachment ;-^ nor does a motion to dissolve a temporary 19 As to jurisdictional defects, see, ante, § 38. ■20 Cooper v. Gordon. 125 Cal. 296, 57 Pac. 1006. Stipulation for period to settle claim does not constitute an appearcnce. — Washington County Land & Devel. Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 Pac. 116. Stipulation plaintiff may amend comiilaint, constitutes a general ai)pearance. — Robertson M o r t- gage Co. V. Thomas, 60 Wash. 514, 111 Pac. 795. 21 Siskiyou County Bank v. Hoyt, 132 Cal. 81, 64 Pac. 118. •22 Stubbs V. McGillis, 44 Colo. 138, 130 Am, St. Rep. 116, 18 L. R. A. (N. S.) 405, 9 Pac. 1005. 23 Jones V. Standiferd, 69 Kan. 513, 77 Pac. 271. 24 Salmonson v. Streiffer, 13 Cal. App. 397, 110 Pac. 145. 25 Glidden v. Packard, 28 Cal. 651 ; Meyer v. Brooks, 29 Ore. 203, 54 Am. St. Rep. 790, 44 Pac. 281. See, also, footnote 6, this sec- tion. Dismissal of cause also asked, constitutes a general appearance. —Everett v. Wilson, 34 Colo. 476, 83 Pac. 211. Execution on forthcoming bond in attachment, procured by the defendant, does not constitute a general appearance. — Winter v. Union Packing Co., 51 Ore. 97, 93 Pac. 930. Giving bond for discharge of an attachment required by statute on motion to discharge consti- t u t e s a general appearance. — Leusch V. Nickel, 16 N. W. 28, 113 Pac. 595; Roether v. Cum- mings, 84 Ore. 442. 165 Pac. 335. Motion to discharge on merits, — as on insufficiency of affidavit for the attachment, — constitutes a 342 ell. XIII.] KINDS OF APPEARANCE. § 257 injunction.-" A defendant can not appear in an action, so as to give the court jurisdiction of his person, except by answering or demurring, or giving plaintiff written notice that he appears ;-" merely giving notice the purpose of which is not to give notice of appearance, but to give notice of a step taken or about to be taken, does not con- stitute an appearance in the cause within the statute. -'- Where the record shows, in general terms, the appear- ance of parties, the appearance will be confined to those parties served with process. -'' In those cases in which the first of a series of pleas designates for whom of sev- eral defendants counsel appear, the use in subsequent pleas of the words, "the defendants," includes the de- fendants served and appearing only, not the defendants not served and not appearing.^" Filing petition and bond for removal to federal court has been held not to consti- tute an appearance in the action. ^^ § 257. As TO KINDS OF APPEARANCE In GENEKAL. Au appearance in an action, whether by the party or by his general appearance. — Gorham v. 9 111. (4 Gilm.) 119; Violet v. Tanquerry, 58 Kan. 233, 48 Pac. Waters, 24 Ky. (1 J. J. Marsh.) 916; Raymond v. Nix, 5 Okla. 303; Hubbard v. Dubois, 37 Vt. 656, 49 Pac. 1110. 94, 86 Am. Dec. 690. 2C,Donlan v. Thompson Falls :^i Coombs v. Parish. 6 Colo. Copper & Mill. Co., 42 Mont. 257, 296; State v. American Surety Co.. 112 Pac 445 ^6 Idaho 652, Ann. Cas. 1916E, 209, 145 Pac. 1097. 27 Steinbach v. Leese, 27 Cal. 295, 297; Salmonson v. Streiffer, 13 Cal. App. 398, 110 Pac. 146. Attempting removal of a cause not removable defendant takes his chances in thus becoming an actor 28 Id.; Glidden v. Packard, 28 ^^^ ^^^j.^^^ ^^ advantage to the Cal. 651. defendant, is the settled doctiine 2;> Hirschfield v. Franklin, 6 i„ Idaho.— See Finney v. Amer- Cal. 607; Chester v. Miller, 13 jcan Honding Co., 13 Idaho TVH. 90 Cal. 558; Kelly v. Van Austin, 17 pac. 859, 91 Pac. 318; .Mills v. Cal. 564; Gargan v. School Dis- American Bonding Co.. 13 Idalu) trict, 4 Colo. 53, 57; Seedhouse v. 55(5^ gj pac. 381; .Morbeck v. Hrad- Broward, 34 Fla. 500, 528, 16 So. ford-Kennedy Co., 19 Idaho 83. 11:: 425. Pac. 89; State v. American Surety :?o Gargan v. School District, 4 Co., 26 Idaho 652, Ann. Cas. 1916E, Colo. 53, 57; Barloin v. Edwards, 209, liS Pac. 1097. 343 § 257 CODE PLEADING AND PRACTICE. [Pt. T, attorney, is either (1) general, to contest the cause on its merits, or (2) special, to attack for jurisdictional defects any step in the proceedings of an action. Where the ap- pearance is not shown by proper entry in the record,^ by statements contained in the paper filed or, possibly, by oral statements made to the court at the time, to be spe- cial, it will be considered a general appearance. There may be a general appearance of a defendant at any time, without leave of court, although the time in which to ap- pear has elapsed, where no rule has been taken against him, and the defendant will not thereafter be in default,- unless he fails to plead. Special appearance for the pur- pose of contesting the jurisdiction of the court over the person of the defendant, is sufficient to enable a contest as to the sufficiency of the affidavit filed for an order of serv- ice of process by publication of the summons.^ Special appearance to move to dismiss on jurisdictional grounds is not converted into a general appearance by a subse- quent plea in abatement on the same grounds.* Character of appearance does not depend upon the form of the procedure, but upon the substance of such appear- ance and the relief sought thereby.^ In determining whether an appearance was special or general, the con- trolling factor is the question whether the sole object was to question the court's jurisdiction over the person of the defendant, irrespective of defendant's intention to make the appearance special, and irrespective of any stipula- tion or statement.^ Thus, an appearance is general, not- ■\\ithstanding any reservations, when the relief sought 1 Godfrey v. Douglas County, 28 4 Winter v. Union Packing Co., Ore. 440, 43 Pac. 171. 51 Ore. 97, 93 Pac. 930. 2 State ex rel. Hannebahl v. Su- 5 Roethler v. Cummings, 84 Ore. perior Court, 85 Wash. 663, 149 442, 165 Pac. 355. Pac. 16. 6 Sit You Gune v. Hurd, 61 Ore. 3 Columbia Screw Co. v. Warner 182, 120 Pac. 737, 1135. Lock Co., 138 Cal. 445, 71 Pac. 498. 344 ch. XIII.] GENERAL APPEARANCE. § 258 thereon presupposes that the person moving is a party to the action.^ § 258. General appeaeance^ — What constitutes. We have already discussed, in a general way, what con- stitutes a general appearance in a case,- and it remains to give in this and the following sections concrete in- stances of what does and what does not constitute a gen- eral appearance in an action. Acceptance, by defendant's attorney, of ser^dce of a motion for an order for the sale of property attached in a suit, does not constitute a gen- eral appearance in the action.^ A motion for security for costs,^ or an affidavit filed by a defendant for a con- tinuance, no further action being taken, does not consti- tute a general appearance.^ Execution procured by defendant to issue on forthcoming bond in attachment, does not constitute a general appearance in the cause.** An order of the court continuing the cause, without objec- tion on the part of the defendant, does not constitute a general appearance in the cause by the defendant;" and a recitation by the clerk in the transcript upon a writ of error that defendant appeared by some unnamed attor- ney, does not constitute a general appearance.^ The pre- sumption is that an apjjearance was a general appearance, where the court had jurisdiction of the subject-matter, and the record fails to show that the appearance was a special appearance.'' A general appearance once entered is presumed to continue until the end of the cause, in tlie 7 Clarke, In re, 125 Cal. 302, 57 4 Dower v. Stone, 27 Idaho 21,9, Pac. 1010. 149 Pac. 505. r. Hoyt V. Macon, 2 Colo. 113. « See, ante, § 256, footnote 25. 7 Talpev V. Doane, 3 Colo. 22. Forms of Pleading and Practice, ^ Anderson v. Agnew. 38 Fla. 30. vol. 2, p. 1823. Form No. 1108. „g 20 So 766 •-' See, ante. § 256. -i Roethler v. Cummings, 84 Ore. 3 Id., footnote 2. 442, 165 Pac. 355. 345 1 For form of notice of general appearance, see Jury's Adjudicated § 259 CODE PLEADING AND PRACTICE. [Ft. I, absence of a statute or a rule of court requiring further notice on the part of the defendant.^*' § 259. ■ A STEP TAKEN IN THE CAUSE. Wc haVC already seen that it is not every step taken in a cause that constitutes a general appearance therein ; e. g. filing affidavit for continuance/ or issuing execution on forth- coming bond in attachment.- Other examples will be found in the following sections. Applying for time in which to answer does not constitute a general appear- ance and a waiver of defects and irregularities in process or the service thereof;-^ but an application for a release of an attachment and giving the bond required by statute in order to and on securing a release, is a general appear- ance and a waiver of all objections as to jurisdiction.'* Filing an answer on the merits,^ or a general demurrer,*^ or a demurrer the disposition of which presupposes juris- diction on the part of the court, is a general appearance. Handing copy of an answer by defendant's counsel to plaintiff's counsel in chambers, with the assurance that the original would be filed, and using such answer in the hearing of a motion to discharge a receiver appointed in the action, constitutes a general appearance.^ Obtaining a copy of the complaint from the clerk of the court and having costs taxed to the plaintiff under provisions of the 10 Reed V. Brandenburg, 72 Ore. 39 Pac. 1002; Gray v. Gates, 37 435, 143 Pac. 989. Wis. 614; Hupfeld v. Automaton 1 See, ante, § 258, footnote 4. Piano Co., 66 Fed. 788. 2 See, ante, § 256, footnote 25. 4 Roethler v. Cummings, 84 Ore. 3 See Fonville v. Monroe, 74 111. 442, i65 Pac. 335. 126; Anderson v. Burchett, 48 Kan. g^^^ ^j^^ ^^^^ g 256, footnotes 781, 30 Pac. 174; State ex rel. ^^ ^^^ 25 Mackey v. District Court, 40 Mont. 359, 135 Am, St. Rep. 622, 106 Pac. 1098; Orr v. Seaton, 1 Xeb. 105; State ex rel. Curtis v. McCullough, « Id.,- footnote 18. 3 Nev. 202; Mulhearn v. Press "Powell v. National Bank of Pub. Co., 53 N. J. L. 150, 20 Atl. Commerce, 19 Colo. App. 57, 74 760; Mayer v, Mayer, 27 Ore. 133, Pac. 536. 346 ;"' See, ante. § 256, footnotes 8 and 10. ch. XIII.] APPEARANCE — MOTION IN ACTION. § 260 statute, constitutes a general appearance.* Filing a peti- tion for a new trial, based in part on want of jurisdic- tion of the court, constitutes a general appearance and a waiver of objections ;'' so also does prosecuting error,^^* or a stipulation affecting the proceedings in the cause,' ' as a stipulation for time to answer. '- § 260. Motion in the action. A motion filed in an action may or may not constitute an appearance in the cause, depending upon the character of the motion and of the relief sought.^ Appearance to contest a mo- tion for change of the venue,- or for the custody of chil- dren in a suit for a divorce, constitutes a general appear- ance;^ so also does contesting motion for permission to amend affidavit in attachment."* Appearance to move for a continuance constitutes a general appearance f so does appearance to file motion to quash summons and dismiss action,*^ or for a new trial, after judgment, not based on non-jurisdictional grounds;' or to dissolve an attachment on the merits;"* or to set aside a default judgment, not made on jurisdictional grounds, but to let in a defense." Filing any motion not going to the jurisdiction of the court only, whicli can be heard on general appearance only, constitutes a general appearance."* s Brockway v. W. & T. Smith 3 Abercrombie v. Abercrombie, Co., 17 Colo. App. 96, 66 Pac. 1073. 64 Kan. 29, 67 Pac. 539. !> Neosho Valley Inv. Co. v. Cor- 4 Rurnham v. Lewis, 65 Kan. nell, 60 Kan. 282, 56 Pac. 475. 48I, 70 Pac. 337. 10 See, ante, § 253, footnote 13. _, ^obel v. Zobel, 151 Cal. 98, 90 uid., footnote 20. p^^, j91 ggg sheldon v. Land- \2 Multnomah Lumber & Box Co. V. Weston Basket & Barrel Co., 54 Ore. 22, 99 Pac. 1046, 102 Pac. 1. Stipulation by party amounting t Trugeon v. Gallamore, 28 Okla. to general appearance. — See, ante, "^2, 117 Pac. 797. § 256, footnotes 15 and 20. ^ See, ante, § 256, footnote 25. 1 See, ante, § 256, footnote 11. » Welch v. Ladd, 29 Okla. 93, 116 ■1 Jones V. Jones, 59 Ore. 308, 117 Pac. 573. Pac. 414. 1" See, ante, § 256, footnote 11. 347 wehr, 159 Cal. 778, 116 Pac. 44. 1; Teater v. King, 35 Wash. 138, 76 Pac. 6S8. §§ 261, 262 CODE PLEADING AND PRACTICE. [Pt. I, § 261. On jukisdictional, grounds. Ap- pearance upon a motion confined to the single object of enforcing the defendant's statutory right, — e. g. motion to quash a service of process, or for security for costs, or to dismiss an appeal, — although not special in form, does not constitute a general appearance and a waiver of rights.^ A special appearance to move a dismissal on jurisdictional grounds only, never constitutes a general appearance.- Thus, an appearance to object to jurisdic- tion and to move to quash an attachment does not con- stitute a general appearance,^ and neither does an appearance to move the dismissal of a cause because the process was not issued within the time required by statute.* § 262. On other than jurisdictional, GROUNDS. An appearance to move the court for relief on other than jurisdictional grounds, or on jurisdictional and nonjurisdictional grounds, constitutes a general ap- pearance in the action.^ Thus, an appearance asking for relief grantable on general appearance only, subjects the defendant to the jurisdiction of the court for all pur- poses ;- so does asking a relief that can be granted when the court has jurisdiction only f or a motion raising the legal grounds on which the action is based and contro- verting them ;"* or a motion to set aside a default judgment based on jurisdictional and nonjurisdictional grounds;^ 1 Crary v. Barber, 1 Colo. 172, i Zobel v. Zobel, 151 Cal. 98, 90 174; Law v. Nelson, 14 Colo. 412, Pac. 191. 24 Pac. 2; Domer v. Stone, 27 o Felts v. Boyer, 73 Ore 83. 144 Idaho 279, 149 Pac. 505; Nye v. p^^ 420 Liscomb, 38 Mass. (21 Pick.) 263; Malcolm v. Rogers, 1 Cow. ^ Belknap v. Charlton. 25 Ore. .j^ Y ) 1 ^1' 2^ P^^- '^^^- S^^ Winter v. %■ Thompson v. Greer, 62 Kan. ^nion Packing Co.. 51 Ore. 97, 93 Par* Q?0 522, 64 Pac. 48; Meyer v. Brooks, ■^'^^- ^""• 29 Ore. 203, 54 Am. St. Rep. 790. ^ Thompson v. Pfeiffer, 66 Kan. 44 Pac. 28L 368. 71 Pac. 828. 3 See. ante. § 256, footnote 25. "< Barnett v. Holyoke Mut. Fire 4 Coombs V. Parish, 6 Colo. 296. Ins. Co., 78 Kan. 630, 97 Pac. 962. 348 eh. XIII.] SPECIAL APPEARANCE. § 263 or a motion to vacate a default judgment on tlie ground of want of jurisdiction and also on nonjurisdictional grounds ;'' or a motion to vacate an order for temporary alimony in an action for a divorce.'^ Objection to a de- fault judgment on the ground that it is unsupported by the complaint, constitutes a general appearance.* § 263. Special appeakance^ — In general. We have already seen that a defendant may appear in a case either generally or specially.- A special appearance does not cure a defect in the process or in the service thereof,^ or waive an objection to the jurisdiction of the court/ and does not subject the person of the defendant to the juris- diction of the court for any purpose other than that of such appearance. Objection to the jurisdiction of the court because of the insufficiency of the process or the illegality or irregularity of the service thereof is waived only in those cases in which the defendant pleads to the merit in the first instance.^ A special appearance is made when a person, or his attorney for him, seeks to obtain an order vacating some proceeding alleged to have been taken in an unauthorized manner,^ Thus, a person may specially appear to challenge the jurisdiction of the court, either by motion"^ or plea in abatement^ where the want 6 Kaw Valley Life Ins. Co. v. Western R. Co. v. Brow, 164 U. S. Lemke, 40 Kan. 142, 661, 19 Pac. 271, 280, 41 L. Ed. 435, 17 Sup. Ct. 337, 20 Pac. 512. Rep. 128. 7 Jones V. Jones, 59 Ore. 308, 117 5 Harkness v. Hyde, 98 U. S. 476, Pac. 414. 25 L. Ed. 237. 8 Maclay Co. v. Meads, 14 Cal. See, also, ante, § 256, footnote 8, App. 363, 112 Pac. 195, 113 Pac. and numerous cases cited, 10 1 For form of special appear- Rose's Notes on U. S. Reps., 2d ance, see Jury's Adjudicated Forms ed., pp. 608-611. of Pleading and Practice, vol. 2, p. « Multnomah Lumber & Box Co. 1823, Form No. 1107. v. Weston Basket & Barrel Co., 54 2 See, ante, § 257. Ore. 22, 99 Pac. 1046, 102 Pac. 1. 3 Steele v. Harkness, 9 W. Va. 7 As to motion attacking juris- 24. diction of court, see, ante, § 224. 4 Goldey v. Morning News Co., s As to plea in abatement attack- 156 U. S. 518, 520. 39 L. Ed. 517, ing jurisdiction of court, see, ante, 518, 15 Sup. Ct. Rep. 560; Wabash § 223. 349 § 264 CODE PLEADING AND PRACTICE. [Pt. T, of jurisdiction does not appear on the face of the record, without subjecting himself to the jurisdiction of the court for any other purpose f as a special appearance by a non- resident defendant, for the purpose of making a motion to set aside a judgment by default entered against him,'" or an appearance specially for the purpose of having sot aside a service of process which was fatally defective-/' or for the purpose of moving to strike out an amended complaint,^- and also for asking for an extension of time in which to move or plead, until the latter motion is acted on, does not make an appearance such as to waive the service of the process and amended complaint.^'* So, where defendants appeared specially, and objected to the jurisdiction of the court on the ground that the summons was not sufficient to confer jurisdiction, and after the court had overruled this objection, they appeared gener- ally, and answered — it was held that such appearance was not a voluntary appearance, and did not waive the de- fendants' objection to the jurisdiction of the court ;'^ but this doctrine is denied in some jurisdictions.^^ §264. What CONSTITUTES. An appearance i:i person^ or by attorney- to object to the jurisdiction of the court,^ or to move to set aside a void judgiuent,^ or to set aside or vacate a judgment or decree because of improper or insufficient service of process, is a special appearance, and defendant does not submit himself to the jurisdiction of the court for r.ny other purpose than the purpose of that application or motion.^ Moving the court '.•Winter v. Union Packing Co., i5ld., footnote 9. 51 Ore. 97, 93 Pac. 930. i As to appearance in person, 10 Paxton V. Daniell, 1 Wash. 19, see, post, §§ 267-270. 23 Pac 441 - ^^ *° appearance by attorney, 11 Kinkade v. Myers, 17 Ore. 470, 21 Pac. 557. see, post, §§ 271-274. •? Felts V. Boyer, 73 Ore. 83, 144 Pac 420 12 Powers V. Braly, 75 Cal. 237, 4 Paxton v. Daniell, 1 Wash. 19. 17 Pac. 197. 23 Pac. 441. i-'^Id. 5 Felts V. Boyer, 73 Ore. 83, 144 14 See, ante, § 256, footnote 8. Pac. 420. 350 f ell. XIII.] SPECIAL BECOMES GEXEKAL WHEN. § 2l)5 to dismiss an action on jurisdictional grounds, — e. g. on ground court has no jurisdiction of the person of tlie defendant because there has been no service, or an insuf- ficient or an illegal service, of process, — limiting the appearance to the purposes of such motion, is a special appearance;*"' and a special appearance to move a dis- missal on jurisdictional grounds, and a subsequent plea in abatement on the same grounds, is still a special ap- pearance.'^ In short, any appearance to attack an act or a proceeding because unwarranted or unauthorized, and to move the statutory right of the defendant to have it set aside, vacated or annulled, without asking any affirmative relief, is a special appearance.'* '§> 265. When becomes general appearance. A special appearance to move a dismissal of the action on jurisdictional grounds is not changed into a general appearance by a subsequent plea in abatement on the same ground;^ and a special appearance to object to the jurisdiction of the court to make or enter any order affect- ing the rights of the party so appearing, moving the court to quash the notice as to such party does not convert the appearance into a general one.- A special appearance to question the jurisdiction of the court and move a dismissal of the action on any jurisdictional ground, or to move to set aside a default judgment, is converted into a general appearance by answering to the merits-* without saving an objection to the order overruling his motion;^ or without saving an exception, filing a cross-complaint asking 6 Anglo-American Packing & Pro- i Winter v. Union Packing Co., vision Co. v. Turner Casing Co., 34 51 Ore. 97, 93 Pac. 930. Kan. 340, 8 Pac. 403; Green v. See, also, ante, § 257, footnote 4. Green, 42 Kan. 654, 16 Am. St. 2 State ex rel. Hofnian v. Super- Rep. 510, 22 Pac. 730. ior Court, 88 Wash. -612, 152 Pac. 7 Winter v. Union Packing Co., 315. 51 Ore. 97, 93 Pac. 930. :? Thompson v. Alford, 135 Cal. See, ante, § 257, footnote 4. 52, 66 Pac. 983. a See, ante, § 257, footnotes 5-7. i See, ante, § 256, footnote 8. 351 § 266 CODE PLEADING AND PRACTICE. [ft. I, affirmative relief,^ or filing a general demurrer.® A special appearance to move the dissolution of an attachment is converted into a general appearance by also moving tho dismissal of the cause. ^ Where an attorney appears spe- cially to apply for a continuance, on his motion being denied, by remaining and participating in the proceedings he converts the special into a general appearance.* <§ 266. Moving on non jurisdictional GROUNDS. A special appearance to move a dismissal of an action setting forth jurisdictional and nonjurisdictional grounds, converts the appearance into a general one;^ but a special appearance to move the quashing of a return to the service of a process (1) because publication was not made within the time required by the statute, and (2) because the action was not one in which jurisdiction in rem could be acquired by service by publication, is not rendered a general appearance by the second ground of the motion.^ But a special appearance to attack juris- diction of the court because of a want of service of the process, is converted into a general appearance by movini; to dismiss the action because of the insufficiency of the affidavit for the attachment;" and the same is true of an appearance to file a motion to dismiss the action on ground (1) of want of jurisdiction of the person of the defendant, and (2) on ground of want of jurisdiction of the subject-matter of the action.* An appearance de- nominated ''special," in which the defendant invokes the aid of the court over the subject-matter of the action, as 5 Id. 1 Gorham v. Tanquerry, 58 Kan. Clarke, In re, 125 Cal. 388, 58 233, 48 Pac. 916. Pac. 22; Polk v. Martin, 82 Wash. 2 Deming Invest. Co. v. Ely, 21 226, 144 Pac. 42. Wash. 102, 57 Pac. 353. See, also, ante, § 256, footnote 10. .. , , „ ^ -c^ 4.* Txr-i OA r-^i A'7ti 3 Nichols & Shepard Co. v. 7 Everett v. Wilson, 34 Colo. 476, _ ^ g„ p 211 Baker, 13 Okla. 1, 73 Pac. 302. See, also, ante, § 256, footnote 25. 4 Olcese v. Justices' Court, 156 8 Sheldon v. Landwehr, 159 Cal. Cal. 82, 103 Pac. 317. 778, 116 Pac, 44. 352 I Ch. XIIL] APPEABANCE BY PARTY. §§ 267, 268 well as on purely jurisdictional grounds, the appearance will be deemed to be a general appearance, notwithstand- ing its designation as special.^ A special appearance for the purpose of vacating a judgment by default for want of jurisdiction in the court over the person of the defend- ant, is converted into a general appearance by further objecting (1) that the complaint did not state a cause of action, and (2) that the process did not conform to the relief demanded in the complaint.® § 267. Appearance by party — In general. We have already seen that a person made a defendant in an action may appear generally, to contest the cause on the merits,^ or that he may specially, to object to the proceeding on jurisdictional grounds.- It has been said that an appear- ance in response to a void service of process, does not constitute a voluntary appearance so as to effect a waiver of objection to the service, where the party first appears specially to question the court's jurisdiction, and, on the objection being overruled, saves an exception to the order overruling the objection, and then appears generally.^ This doctrine is supported by the decided weight of au- thority and the better reason, but it does not go unchal- lenged, as we have already seen."* § 268. In person or by attorney. We have already seen that a person made a defendant in an action at law or a suit in equity may waive process and enter his ap- pearance;^ and also that a guardian may waive process, and enter an appearance for his ward,- but the general 5 State ex rel. Hofman v. Su- i See, ante, §§ 258-262. perior Court, 88 Wash. 612, 153 2 See, ante, §§ 263-266. Pac. 315. 3 State ex rel. Lane v. District See, also, ante, § 257, footnotes ^^^^^^ ^^ ^^^^ 5^3^ L. R. A. 1916E, 5-7- 1079, 154 Pac. 200. 6 Security Loan & Trust Co. v. ,^^t„„*^ a „ , „ ^ „ „ .. ^ 10c r-oi 4 See, ante, § 256, footnote 9. Boston & S. R. Fruit Co., 126 Cal. 418, 58 Pac. 941, 59 Pac. 296; Car- ^ See, ante, §§ 250, 253. ter V. Tallant, 51 Kan. 516, 32 Pac. 2 See, ante, § 253. 1108. I Code PI. and Pr.— 23 353 § 268 CODE PLEADING AND PRACTICE. [Pt. I, rule is that persons acting in a fiduciary capacity have no authority to waive process and enter appearance in an action.^ A party appearing in person is required to give a written notice to the plaintiff of that fact,^ and if the appearance is general,^ this constitutes a waiver^' of all jurisdictional objections, and confers upon the court jurisdiction over the person of such defendant; and if the defendant is a corporation, such appearance is, for the purposes of the action, conclusive evidence of its legal existence.'^ A party to an action not only has the right to appear in person, but in person may also conduct the trial of the cause ; and where, in the trial of an action at law, the parties appear in person, and undertake its man- agement, each for himself, without the aid of counsel, the law presumes them to have full knowledge of the situation of their cause.^ While a party to an action may appear (1) in his own person, or (2) by attorney, he can not do both; and if he appears by attorney, he can not assume the control of the cause.^ While an attorney of record remains such, his right to manage and control the action 3 See, ante, § 254. 121 Cal. 99, 100, 53 Pac. 433; Wylie 4 See Kerr's Cyc. Cal. Code Civ, v. Sierra Gold Co., 120 Cal. 485, Proc, § 1014. 52 Pac. 809; Crescent Canal Co. v. Form of appearance. — See Jury's Montgomery, 124 Cal. 134, 146, 56 Adjudicated Forms of Pleading Pac. 797; Toy v. Haskell, 128 Cal. and Practice, vol. 2, p. 1823. 558, 79 Am. St. Rep. 70, 61 Pac. r. As to general appearance, see, 89; Coonan v. Lowenthal, 129 Cal. ante, §§ 256, 258-262. 197, 200, 61 Pac. 940; Boca & 6 As to waiver, see. Id.; also, Loyalton R. Co. v. Superior Court, ante, §§ 250 et seq., 265, 266. 150 Cal. 153, 156, 157, 88 Pac. 718; 7 Dauthier Decorating Co. (A.) Bonnifield v. Thorp, 71 Fed. 929. v. Ham, 3 Colo. App. 559, 34 Pac. See note 87 Am. Dec. 168. 484; Missouri River, Ft. S. & G. Answer signed by defendant who R. Co. V. Shirley, 20 Kan. 660; has appeared by an attorney who Seaton v. Chicago, R. I. & P. R. demurred to the complaint, and Co., 55 Mo. 416. who has not been displaced in any 8 Waldez v, Archuleta, 3 N. M. manner, is irregular. — Crane v. 195, 5 Pac. 327. Crane, 121 Cal. 99, 53 Pac. 433. 9 Commissioners of Funded Debt Stipulation consenting to judg- of San Jose v. Younger, 29 Cal. ment, filed without the knowledge 147, 149, 87 Am. Dec. 164; Mott v. or consent of attorney conducting Foster, 45 Cal. 72; Crane v. Crane, defense, is void. — Crescent Canal 354 Ch. XIII.] APPEARANCE IN PERSON, ETC. § 268 can not be questioned by the opposite party.^*' Courts will not presume the appearance of a defendant not regu- larly served, merely because a continuance was ordered after default taken. ^^ Where counsel expressly appears for certain defendants in an action, his signature to papers in the case after that time as attorney for the de- fendants will be construed as limited to those for whom he expressly appeared.^^ Wliere plaintiff amended his complaint by adding two new parties defendant, and these defendants filed an acknowledgment of ''service of sum- mons and a copy of the complaint," and ''consent that the decree herein prayed for by plaintiff be entered," it was held a sufficient appearance to authorize a decree against them.^^ It has been held that an appearance in the probate court of an executor, in proceedings relating to an estate, is a waiver of citation ;^^ but the soundness of this doctrine is questioned. ^^ An appearance is a pro- ceeding in court, and must constitute a part of the rec- ord.^*' The appearance of a defendant who has not been served with notice, to testify as a mtness, does not con- stitute an appearance bringing him within the jurisdic- tion of the court as a party.^''^ Co. V. Montgomery, 124 Cal. 134, 148; Hobbs v. Duff, 43 Cal. 4S5, 146, 56 Pac. 797. 492, Stipulation for continuance, dis- ^^ Foote v. Richmond, 42 Cal. missal, and the like, signed by the 439; Childs v. Lanterman, 103 Cal. party instead of his attorney in 387, 392, 42 Am. St. Rep. 121, 37 the action, will have no effect, and Pac. 382. v/ill be disregarded by the court— ^■^ Johnson, Estate of, v. Tyson, Wylie V. Sierra Gold Co., 120 Cal. 45 Cal. 257; Kearney, Estate of, 485, 487, 52 Pac. 809; Toy v. Has- 13 Cal. App. 92, 95, 109 Pac. 38. kell, 128 Cal. 558, 560, 79 Am. St. ^^ See, ante, §254 and footnote Rep. 70, 61 Pac. 89. 3, this section. Contra: Paulson v. Lyson, 12 i« McCormack v. First Nat. N. D. 359, 97 N. W. 534. ^^^^' ^^ ^"^- '^^^• 17 Nixon V. Downey, 42 Iowa 78. 10 Id. A X U * As to what constitutes appear- iiNorblett V. Farwell, 38 Cal. gnce, see Kerr's Cyc. Cal. Code 15^- Civ. Proc, §§406, 416, 1014; ante, 12 Spangel v. Dellinger, 42 Cal. § 256, footnotes 10-12. 355 §269 CODE PLEADING AND PRxiCTICE. [^t. 1, § 269. To CONTEST MOTION. A party who appears and contests a motion in the court below can not object, on appeal, that he had no notice.^ And if counsel appears to a motion, the presumption is that he appeared to op- pose, not to consent to the order sought.- An appearance to defend a motion is a waiver of notice.^ A defendant has a right to appear for the special purpose of moving to dismiss a defective summons ; and if the court denies the motion, a general appearance and answer afterwards do not waive the right or cure the error, if any.* This is the general rule supported by the weight of authority, but some later California cases hold differently,^ the general doctrine being that such a motion may be made without entering an appearance in the action;^ and a notice that defendant appears for the sole purpose of such a motion is sufficient to entitle him to be heard thereon.'^ The general rule is that if such motion is de- nied, defendant may answer without waiving the benefit of an exception to the order denying his motion,^ although some later California cases deny this doctrine.^ Where a petition is filed, and defendant moved to strike from the files all the papers in the action on the ground of irregu- larities and defects, it was held that this was an entry of appearance. ^'^ So, also, a motion to set aside a judgment, 1 Reynolds v. Harris, 14 Cal. 667, 6 Eldridge v. Kay, 45 Cal. 49, 677, 76 Am. Dec. 459; Millard v. see, ante, §256, footnote 8. Hathaway, 27 Cal. 119; Shay v. 7 Lander v. Fleming, 47 Cal 614 Superior Court, 57 Cal. 541, 542; q^^ Accock V. Halsey, 90 Cal. 215, 220, 27 Pac. 193; Curtis v. Walling, 2 Idaho 386 (2 Hasbrouck 416), 18 Pac. 54. ■2 Borkheim v. North British & ^^^' ^«t«' § ^56, footnote 8. Mercantile Ins. Co., 38 Cal. 623, ^ See, ante, § 256, footnote 9. 627. lOMaholm v. Marshall, 29 Ohio 3 Brown v. Milton, 55 Tenn. (8 St. 611. Heisk.) 871. As to motion in cause, see, ante, 4 Lyman v. Milton, 44 Cal. 630. § 260. See, also, ante, § 256, footnote 8. As to what constitutes appear- 5 See, ante, § 256, footnote 9. ance generally, see, ante, § 256. 356 As to special appearance, see, ante, §§ 263-266. 8 Kent V. West, 50 Cal. 185. ell. XIII.] APPE.VRANCE BY ATTORNEY. §§270.271 partly on the ground of want of jurisdiction of the de- fendant and partly on the ground of mere irregularities consistent with the fact of jurisdiction, was held a general appearance, and waiver of any defect in service of process. ^^ § 270. Rights of party appearing. After appear- ance, a defendant, or his attorney, is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, serv- ice of notice or papers need not be made upon him unless hcvis imprisoned for want of bail.^ It has been held that a stipulation, signed by plaintiffs and some of the defend- ants to an action, for a settlement and dismissal of the action, is not such an appearance as entitles the defend- ants to notice of further proceedings in the action.^ § 271. Appeajrance by attorney — In general. Under the California practice, — and the same is true in most if not all the jurisdictions, — at any time after the commence- ment of an action, any one or all of the defendants may appear by attorney without the service of process/ and the defendants thus appearing must plead to the action within the same time as they would have been required to plead had the process been served upon them. An ap- pearance entered by an attorney, whether authorized or not, is a good and sufficient appearance to bind the party for whom he appears,- except in cases of fraud or collu- 11 Blackburn v. Sweet, 38 Wis. Sampson v. Ohleyer, 22 Cal. 200, 578. 210; People v. Western Meat Co., See, also, ante, §§ 262, 265, 266. 13 Cal. App. 539, 545, 110 Pac. 338; 1 Kerr's Cyc. Cal. Code Civ. Nez Perce County v. Latah County, Proc, § 1014. 2 Idaho (West Pub. Co. Ed.) 1131, 2 Grant V. Schmidt, 22 Minn. 1. 1135, 31 Pac. 800; State v. Passaic 1 As to waiver of process or the County Society, 54 N. J. L. 260, 23 service thereof, see, ante, §§250 Atl. 680; Whipple v. Whitman. 13 et seq. H. I- 514, 43 Am. Rep. 45. See 2 Suydam v. Pitcher, 4 Cal. 280; Pacific Pav. Co. v. Vizelich, 141 Holmes v. Rogers, 13 Cal. 191; Cal. 4, 8, 74 Pac. 352. Turner v. Caruthers, 17 Cal. 431; As to powers of attorney, see 357 §271 CODE PLEADING AND PRACTICE. [Ft. I, sion, or where the attorney is insolvent,^ or the attorney disobeys the instructions of his client, — e. g. enters into a compromise in defiance of the protests of his client/ because an attorney has no implied authority to compro- mise or settle his client's cause without the latter 's con- sent.^ And an appearance by an attorney, whether authorized or not, at common law, and by express provi- sion of our statute, is a waiver of the service of process,*"' and a waiver of all defects in the summons or previous proceedings f and of all irregularity in the original proc- Kerr's Cyc. Cal. Code Civ. Proc, §§ 283, 1014; also, note 75 Am. Dec. 148. Authority of attorney implied, but want thereof may be ques- tioned upon aflBdavit upon direct application therefor. — See Turner V. Caruthers, 17 Cal. 431; Clark v. Willett, 35 Cal. 540; Magnolia & H. Fruit Cannery v. Guerne, 3 Cal. Unrep. 589, 31 Pac. 363; Williams V. Uncompahgre Canal Co., 13 Colo. 469, 475, 22 Pac. 806. As to method of attacking au- thority of attorney to appear for party he assumes to represent. — Williams v. Uncompahgre Canal Co., 13 Colo. 469, 492, 22 Pac. 806. See, also, note 126 Am. St. Rep. 39. — Or on motion to vacate judg- ment, order or decree, where the validity thereof depends upon the attorney's authority to appear. — Bonnefield v. Thorp, 71 Fed. 928. Attorney's lack of authority ground for vacating judgment. — See, post, § 272, footnote 4. Doctrine not sanctioned by later California cases. — See footnote 14, this section, and text going there- with. Remedy against the attorney.— Sampson v. Ohleyer, 22 Cal. 210. Unauthorized appearance of at- torney, effect upon judgment. — See note 75 Am. Dec. 148, 21 L. R. A. 848. Judgment when rendered is un- authorized. — Merced County v. Hicks, 67 Cal. 108, 109, 7 Pac. 179, 3 Suydam V. Pitcher, 4 Cal. 280; Holmes v. Rogers, 13 Cal. 191, 200; Gregory v. Ford, 14 Cal. 143, 73 Am. Dec. 639; Sampson v. Ohleyer, 22 Cal. 200, 210. Having attorney appear and rep- resent, without their knowledge, parties fraudulently joined in a complaint, held not to give such parties the right to set aside a sale of their lands under an execu- tion for costs of the proceedings, though made without notice to them, for a nominal price, where the purchaser had no notice of the fraud. — Williams v. Johnson, 112 N. C. 424, 34 Am. St. Rep. 513, 21 L. R. A. 848, 17 S. E. 496. Attorney unauthorized to ap- pear, effect on judgment. — See note 21 L. R. A. 848. 4 Preston v. Hill, 50 Cal. 53, 19 Am. Dec. 652. 5 Whipple V. Rogers, 13 R. I. 514, 43 Am. Dec. 45. 6 Suydam v. Pitcher, 4 Cal. 280. 7 Hyde v. Patterson, 1 Abb. Pr. 358 ■h. XIII.] APPEARANCE BY ATTORNEY. §271 ess or the service thereof,^ except jurisdictional defects and irregularities^ totally invalidating the proceedings.^*' A voluntary appearance by attorney, and participation in the argument of a motion, waives notice of such a mo- tion.^^ If an attorney appears for a defendant in a court of general jurisdiction, this appearance gives the court jurisdiction of the person of defendant; and if the attor- ney appeared without authority, that fact can not be shown as a defense at law, in a suit upon the judgment.^ - If an attorney appears for a part only of defendants, and inadvertently answers for all, and obtains leave of court to withdraw his answer, and substitute a new one answer- ing for the party only for whom he appears, the court acquires jurisdiction only of those for whom he appears. ^^ Where several defendants are named, but none of them have been served, an appearance by an attorney at the request of one of them, although purporting to be for all (N. Y.) 248; Bierce v. Smith, 2 Abb. Pr. (N. Y.) 411; Webb v. Mott, 6 How. Pr. (N. Y.) 439, 440; Dole V. Manley, 11 How.Pr. (N. Y.) 138. 8 See Pearce v. Thackeray, 13 Fla. 577; Barro v. Gordon, 21 Fla. 36; Easton v. Altum, 2 111. (1 Scam.) 251; Dyson v. Brandt, 9 Mart. O. S. (La.) 497; Maine Bank V. Hervey, 21 Me. 45; Smith v. Robinson, 54 Mass. (13 Mete.) 167; Gray v. Young, 1 Harp. L. (S. C.) 40, Knox V. Summers, 7 U. S. (3 Or.) 496, 2 L. Ed. 510; Gracie v. Palmer, 21 U. S. (8 Wheat.) 699, 5 L. Ed. 719; Atkins v. The Dis- integrating Co., 85 U, S. (18 Wall.) 298, 21 L. Ed. 843; McCoy v. Le- mons, 1 Hempst. 216, Fed. Cas. No. S730a; Flanders v. Aetna Ins. Co., 3 Mass. 158, 160, Fed. Cas. Xo. 4852; Clarke v. New Jersey Steam Nav. Co., 1 Story 531, 540, Fed. Cas. No. 2859; Wilson v. Pierce, 15 Law. Rep. 137, Fed. Cas. No. 17826; Piatt v. Manning, 34 Fed. 818; Barnes v. Western Union Tel. Co., 120 Fed. 554. To avoid waiver, appearance must be special. — Romaine v. Union Ins. Co., 28 Fed. 638. As to special appearance, see, ante, §§ 2G3-26G. 9 As to Jurisdictional defects and irregularities, see, ante, § 38. 10 Beall V. Blake, 13 Ga. 221, 58 Am. Dec. 515. 11 Curtis V. Walling, 2 Idaho (West Pub. Co. Ed.) 383, 18 Pac. 54. 12 Carpentier v. Oakland, City of, 30 Cal. 439. See Hodgdon v. Southern Pac. R. Co., 75 Cal. 642, 648. 17 Pac. 928. 13 Forbes v. Hyde, 31 Cal. 342. 359 § 272 CODE PLEADING AND PRACTICE. [Pt. I, of the defendants, is not binding upon those who did not authorize the appearance.^^ § 272. Authority of attorney to appear. Attor- neys are officers of the court, and answerable to it for the proper performance of their professional duties.^ They appear and participate in the proceedings only by the license of the court.^ And his license is prima facie e\d- dence of authority to appear for the person whom he professes to represent,^ but if the supposed client denies the authority, the court may require him to produce the evidence of his retainer, either upon the direct applica- tion of the person represented, or upon motion of the attorney of the opposite party to dismiss, founded upon the affida\dt of the person or party concerning whom the motion is made.^ It has been said to be a contempt of court for an attorney to appear in a cause ^\dthout au- thorization thereto,^ and also that it is ground for setting aside and vacating every judgment or order or decree made or entered in the case.*' The practice of permitting appearance mthout producing a warrant of attorney is as applicable to appearance for a corporation as for a natural person.'^ An attorney of the court who institutes suit in the name of plaintiff is presumed prima facie to have authority, and the adverse party or his attorney 14 Merced County v. Hicks, 67 Attorney's lack of authority to Cal. 108, 7 Pac. 179; Hill v. City appear, judgment properly va- Cab & Transfer Co., 79 Cal. 188, cated.— Blyth & Fargo Co. v. Swen- 191, 21 Pac. 728; People v. West- son, 15 Utah 345, 49 Pac. 1027. ern Meat Co., 13 Cal. App. 539, 545, 5 See State v. Passaic County 110 Pac. 338. Society, 54 N. J. L. 260, 23 Atl. 680. 1 Clark V. Willett, 35 Cal. 534, ^ Blyth & Fargo Co. v. Swenson, 539 15 Utah 345, 49 Pac. 1027. See ^,n Marvel v. Manouvrier, 14 La. Ann. 2 Id., p. 540. 3, 74 Am, Dec. 424; McEachern v. 3 Id.; People v. Mariposa County, ^rackett, 8 Wash. 652, 656, 40 Am. 39 Cal. 684. g^ Rep, 925, 36 Pac. 690. 4 Clark V, Willett, 35 Cal. 534, 7 Osborn v. Bank of United 540. States, 22 U. S. (9 Wheat.) 738, 6 See, also, ante, § 271, footnote 2. L. Ed. 204. 360 ch. XIII.] ATTORNEY — AUTHORITY TO APPEAR. § 272 can not, upon mere suggestion at the bar, deny the right of a party to appear by the attorney of record, nor deny that the attorney so appearing has full authority to prose- cute the suit.^ The authority of an attorney-at-law to appear for parties for whom he enters an appearance in an action will be presumed where nothing to the contrary appears;^ the record need not show his authority,^^ but the court has inherent power to determine by what au- thority an attorney appears either to prosecute or defend for another, whether that other be a natural or an artifi- cial person.^ ^ However, a party can not question the authority of an attorney where the right of the attorney to appear is once conceded, and the attorney has been heard in behalf of his client, pursuant to his authority. ^- It seems that the appearance of an attorney wholly un- authorized, there being no fraud and no allegation of insolvency, would not give the party a right to assail the judgment on that ground. ^^ Where a defendant has been served with summons and default has been entered against him, it is immaterial whether or not an attorney, who had appeared for him, was authorized so t6 do, and a judgment thereafter rendered against such defendant by default will not be set aside upon the ground that an 8 Turner v. Caiuthers, 17 Cal. loOsborn v. Bank of United 431. States, 22 U. S. (9 Wheat.) 738, 6 9 Holmes v. Rogers, 13 Cal. 191; L. Ed. 204. Hayes v. Shattuck, 21 Cal. 51; ii \V i 1 1 i a m s v. Ilncompahgre Sampson v. Ohieyer. 22 Cal. 210; Canal Co., 13 Colo. 469, 22 Pac. 806. Willson V. Cleveland, 30 Cal. 192, Formal notice of appearance in 89 Am. Dec. 85; Garrison v. Mc- a judicial proceeding jjiescribed in Gowan, 48 Cal. 592; Hunter v. §520 of the Oregon Code is un- Bryant, 98 Cal. 252, 33 Pac. 55; necessary, unless the right of the Pacific Pav. Co. v. Vizelich, 141 attorney to appear is challenged Cal. 4, 8, 74 Pac. 352; Osborn v. by the adverse party. — Carter v. Bank of United States, 22 U. S. Koshland, 12 Ore. 492, 8 Pac. 556. (9 Wheat.) 738, 6 L. Ed. 204; 12 Roethler v. Cummings. 84 Ore. Bonnifield v. Thorp, 71 Fed. 927. 442, 165 Pac. 355. See, also, numerous cases cited, i3 Holmes v. Rogers, 13 Cal. 191; 2 Rose's Notes on U. S. Reps., 2d Hayes v. Shattuck, 21 Cal. 51; ed., pp. 176, 177. Willson v. Cleveland, 30 Cal. 192. 361 § 273 CODE PLEADING AND PRACTICE. [Pt. I, attorney had appeared for him without authority.^'* And if an attorney has been admitted to practice in another state, and has been accustomed to practice here, and has been recognized by the courts and bar here as a member of the bar, he is de facto an officer of the courts of this state; and an entry of appearance by such attorney is of the same effect as though he had been admitted to practice in this state.^^ It has been said that an attorney may voluntarily appear on behalf of a party not appear- ing, and suggest to the court a dismissal as to such party.^^ § 273. Signature of attoeney — No notice of : Proof of. It is a well-settled rule of law that courts will take judicial cognizance of its officers as such and of their sigTiatures,^ even though the official character is not at- tached to the signature,- — e. g. signatures of clerks of the court,^ sheriffs,^ and the like ; but while an attorney is in a sense *'an officer of the court," there is no rule which 14 Hunter v. Bryant, 98 Cal. 252, 2 State v. Cole, 28 Tenn. (9 33 Pac. 55. Humph.) 626. 15 Garrison v. McGowan, 48 Cal. 3 Fenton v. American Jewelry 592. Co., 51 Neb. 395, 396, 70 N. W. 931. 16 Mason v. Intercolonial R. of See Bishop v. State, 30 Ala. 34: Canada, 197 Mass. 349, 350, 125 Yell v. Lane, 41 Ark. 53; Mackin- Am. St. Rep. 371, 14 Ann. Cas. 574, son v. Barnes, 66 Barb. (N. Y.) 91; 16 L. R. A. (N. S.) 276, 83 N. E.876. Burton v. Pettybone, 13 Tenn. (5 1 Alderson v. Bell, 9 Cal. 315; Yerg.) 443; Stinson v. Russell, 2 Thompson v. Haskell, 21 111. 215, Tenn. (2 Overt.) 40; Major v. 74 Am. Dec. 98; Hemmann v. State, 34 Tenn. (2 Sneed) 11; State Mink, 99 Ind. 279; State v. Postle- v. Cole, 28 Tenn. (9 Humph.) 626. wait, 14 Iowa 446; State v. Bowen, Matters not strictly judicial, it 16 Kan. 475; Nowell v. McHenry, is doubtful whether judicial notice 1 Mich. 227; Fenton v. American will be taken of the clerk's signa- Jewelry Co., 51 Neb. 395, 70 N. W. ture. Thus, it has been questioned 931; Mackinson v. Barnes, 66 whether the court will take ju- Barb. (N. Y.) 91; State v. Cole, 28 dicial notice of the clerk's signa- Tenn. (9 Humph.) 626; Major v. ture to a county bond. — See 2 State, 34 Tenn. (2 Sneed) 11. Cent. L. J. 447. As to Judicial notice, see notes 4 Ingraham v. State, 27 Ala. 17; 89 Am. Dec. 663, 13 Am. St. Rep. Thompson v. Haskell, 21 111. 215, 738, 4 L. R. A. 33. 74 Am. Dec. 98; Thielman v. Brag, 362 J eh. XIII.] STIPULATIONS BIXDIXG OX CLIENT. § 271 extends such notice to the signatures of attorneys or of the parties to an action,^ although the court will take ju 277. Cities : Suits by and against — Power to employ COUNSEL. The general rule is that cities may employ coun- sel other than the official city attorney,^ when such em- 4Denman v. Webster, 139 Cal. Ga. App. 852, 75 S. E. 166; Kings- 452, 73 Pac. 139. bury v. Centre School District, 53 See 2 Dillon on Municipal Mass. (12 Mete.) 90; Burgess v. Corps., 5th ed., § 824. School District, 100 Mass. 132; 5 See Mollohan v. Cavender, 75 Page v. Township Board of Educa- W. Va. 36, Ann. Cas. 1918A, 499, tion, 59 Mo. 264; Johnson v. Troy, L. R. A. 1917D, 248, 83 S. E. 78. 19 Hun (N. Y.^ 204; Gould v. •; Contention of dissent is that a Board of Education, 34 Hun board of school directors derives (N. Y.) 16; Com. v. Kerr, 25 Pa. its ijowers and functions from the Co. Ct. Rep. 645; Harrington v. Political Code of California and School District Xo. Si.x, 30 Vt. 155; the general laws of the state, and Mollohan v. Cavender, 75 W. Va. that these powers and functions 36, Ann. Cas. 1918A, 499, L. R. A. can not be destroyed or curtailed 1917D, 248, 83 S. E. 78; McCaffrey by municipal authority of city v. School District No. One, 74 Wis. charter provisions. — See Kennedy 100, 42 N. W. 103. V. Miller, 97 Cal. 429, 32 Pac. 558; See, also, notes Ann. Cas. 1918A, Bruch V. Colombet, 104 Cal. 347, 502; L. R. A. 1917D, 251. 350, 38 Pac. 45; Mitchell v. San s Smith v. Sacramento, City of, Francisco Board of Education, 137 13 Cal. 531. Cal. 372, 70 Pac. 180. i Smith v. Sacramento, City of, 7 state V. Aven, 70 Ark. 291, 67 13 Cal. 531; Buck v. Eureka, City S. W. 752; Taylor v. Matthews, 10 of, 124 Cal. 61, 56 Pac. 612; Huron, 365 §277 CODE PLEADING AND PRACTICE. [Ft. T, ployment does not infringe upon the rights of any other official,^ even though the city charter especially provides for a city attorney whose function shall be to attend to all the legal business of the city, where the city authorities consider such an employment necessary to the public wel- fare,^ — e. g. to represent the city in a cause before the United States supreme court,^ or, without especial au- thority, to employ a special attorney to represent the city's interests in a foreign state f or may employ counsel to assist the city attorney;^ but the city authorities can not delegate to an attorney thus employed the discretion- ary right to employ assistant counsel and empower him to fix the compensation of such assistants Mayor of city, as a general rule, has no authority, by virtue of his office, to authorize litigation or employ an attorney on behalf of the city, or to employ special coun- sel to represent himself or the city, so as to make the city City of, V. Campbell, 3 S. D. 321, 53 N. W. 182. 2 State ex rel. Bermudez v. Heath, 20 La. Ann. 172, 96 Am. Dec. 390. 3 Smith V. Sacramento, City of, 13 Cal. 531; Mt. Vernon v. Patton, 94 111. G5; State ex rel. Bermudez V. Heath, 20 La. Ann. 172, 96 Am. Dec. 390; Niles, Mayor, etc., of, v. Muzzy, 33 Mich. 61, 20 Am. Rep. €70; Memphis, City of, v. Adams, 56 Tenn. (9 Heisk.) 518, 24 Am. Rep. 331. Mayor of city an attorney, with- out fraud or collusion, was em- ployed by the common council to appear in a suit for the city, his employment was held valid, and that he was entitled to the value of his services. — Niles, Mayor, etc., of, V. Muzzy, 33 Mich. 61, 20 Am. Rep. 670. 4 Smith V. Sacramento, City of, 13 Cal. 531. 5 Memphis, City of, v. Adams, 56 Tenn. (9 Heisk.) 518, 24 Am. Rep. 331. 6 Denver, City of, v. Webber, 15 Colo. App. 511, 63 Pac. 804; Rice V. Gwinn, 5 Idaho 394, 49 Pac. 412; Boise City, City of, v. Randall, 8 Idaho 119, 66 Pac. 938; Cullen v. Carthage, Town of, 103 Ind. 196, 53 Am. Rep. 504, 2 N. E. 571; Moor- head, City of, V. Murphy, 94 Minn. 123, 110 Am. St. Rep. 345, 3 Ann. Cas. 434, 68 L. R. A. 400, 102 N. W. 219; Vicksburg Waterworks Co. v. Vicksburg, City of, 99 Miss. 132, Ann. Cas. 1913D, 917, 33 L. R. A. (N. S.) 844, 54 So. 852; Barnet v. Paterson, City of, 48 N. J. L. 25, 6 Atl. 723; Treeman v. Perry, City of, 11 Okla. 66, 65 Pac. 923. T Knight V. Eureka, City of, 123 Cal. 192, 55 Pac. 768. 366 ch. XIII.] SUITS AGAINST COUNTIES. § 278 responsible for the value of the services of sucli counsel ;* but cases of emergency and the like may arise in which the mayor has such power, even though its exercise is contrary to the charter provisions of the city,^ — e. g. in case of mandamus proceedings to compel the mayor to sign an illegal issue of bonds, where the legal and legis- lative departments of the city are arrayed against the mayor in such proceedings, and refuse to give him legal aid or to furnish him with counsel to represent himself and the city in such proceedings, in which case he may employ counsel to appear and defend in the proceedings, and the city will be liable for the value of the legal serv- ices rendered in the proceeding, notwithstanding the fact that the employment of the counsel by the mayor was contrary to the express provisions of the city charter.^*' § 278. Counties : Suits by and against — Power to EMPLOY counsel. Boards of Supervisors have power to employ other counsel than the district attorney to assist iu or to conduct the prosecution or defense of any suit to which the county is a party, which power extends equally to suits to which it is a party upon the record, and to those in the prosecution or defense of which it has or is supposed to have some interest. The judgment and discretion of the board in the exercise of this power are not open to review by the courts.^ But the board of 8 Carroll v. St. Louis, City of, 12 Seattle, City of, 7 Wash. 576, 28 Mo. 444; Bryan, City of, v. Page, Am. St. Rep. 905, 35 Pac. 415. 51 Tex. 532, 32 Am. Rep. 637; i Santa Cruz County v. Barnes, Wiley V. Seattle, City of, 7 Wash. 9 Ariz. 48, 76 Pac. 622; Horn- 576, 38 Am. St. Rep. 905, 35 Pac. blower v. Duden, 35 Cal. 664; Las- 415, sen County v. Shinn, 88 Cal. 510, 9 Wiley V. Seattle, City of, 7 512, 513, 26 Pac. 365; Miller v. Fin- Wash. 576, 38 Am. St. Rep. 905, 35 egan, 26 Fla. 29, 6 L. R. A. 813, 7 Pac. 415. See Louisville, City of, So. 140 (recognizing doctrine); V. Murphy, 86 Ky. 53, 5 S. W. 194; Wilhelm v. Cedar County, 5 Iowa Barnet v. Paterson, City of, 48 254; Thacher v. Commissioners, 13 N. J. L. 395, 6 Atl. 15. Kan. 182; Ellis v. Washoe County, 10 Barnet v. Paterson, City of, 7 Nev. 291, 293; Clark v. Lyou 48 N. J. L. 395, 6 Atl. 15; Wiley v. County, 8 Nev. 181, 188; Martin v. 367 §§279,280 CODE PLEADING AND PRACTICE. [Pt. I, supervisors of a county can not delegate to another the discretionary power to determine whether a suit shall be commenced or defended in the name of the county, and to retain attorneys for the purpose thereof.^ The power of the board of super\dsors has been said to be limited to employing counsel to assist the district attorney in prose- cuting or defending suits in which the county is interested as a party,^ but this is a limitation not justified by the weight of authority;'* thus, the board of supervisors can not employ special counsel to influence legislation,^ to dis- cover property omitted from taxation,*' and since the year 1883, in California, they can not employ special counsel to recover license taxesJ § 279. Eminent domain — Who may appear. In pro- ceedings for the condemnation of lands under the power of eminent domain,^ all persons in occupancy of, or hav- ing or claiming an interest in any of the property de- scribed in the complaint, or in the damages for the taking thereof, though not named, may appear, plead and de- fend, in person or by attorney, in like manner as if named in the complaint.^ § 280. Escheat proceedings — Who may appear. All persons named in the information^ may appear in person Whitman County, 1 Wash. 533, 537, 6 Chase v. Boulder County 20 Pac. 599. Commrs., 37 Colo. 272, 11 Ann. See, also, note L. R. A. 1917D, Gas. 483, 86 Pac. 1012. 251. 7 Merced County v. Cook, 120 Compare: Claugh v. Hart, 8 Kan. ^al. 275, 276, 52 Pac. 721. 493, holding that county may not employ other counsel to perform services which law requires to be performed by county attorney. .j... .^,- ^„,j. „ ,, Ti xi r^ t. en Adjudicated Forms of Pleadmg 2 ScoUay v. Butte County, 67 \ ^ ^. , , n^o p _ , „ -tr-A n -o cc-i a"d Practice, vol. 1, p. 972, form Cal. 24;^, 254, 7 Pac. 661. m i^n^i 3 Merriam v. Barnum, 116 Cal, 619, 622, 623, 48 Pac. 727. - See Kerr's Cyc. Cal. Code Civ. 4 See cases collected in note Proc, §, 1246. L. R. A. 1917D, 251. i Form of information to declare 5 Colusa County v. Welch, 122 estate of decedent escheated to Cal. 428, 432, 55 Pac. 243. the state, see Jury's Adjudicated 368 1 Form of complaint or petition to condemn land under the power of the eminent domain, see Jury's ell. Xlll.] HEIRSHIP rUOCEEDINGS AS TO. § 281 or by attorney and answer, or traverse and deny the facts stated in such information, at any time before the time for answering or otherwise pleading expires. Any other persons claiming an interest in the estate may likewise appear and be made defendants, on motion made for that purpose in open court, and may likewise answer or other- wise plead within the time allowed therefor. ^ § 281. Heirships : Proceedings to determine — Who MAY appear. On the filing of a petition^ by any one claim- ing to be an heir to or in the estate, being administered, of a decedent, or claiming to be entitled to a distributive share of the whole or any part of such estate, all the per- sons named in the order- of notice^ issued by the court, and all persons not named in the court's order and in the notice served who have or claim any interest in the estate of the decedent, may appear in person or by attorney within the time limited in the order of the court thereto- fore made, and file a written appearance, either in person or by a duly authorized attorney, such attorney filing at the same time written evidence of his authority to ap- pear,"* entry of which appearance shall be made in the minutes of the court and in the register of the proceed- ings of said estate.^ Forms of Pleading and Practice, Law and Practice, vol. 2, p. 1302, vol. 1, p. 984, form No. 506. § 731. 2 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §1271; Consolidated 3 Form of notice on filing peti- tion to determine heirship, see Cliurch's Probate Law and Prac- Supp. 1906-1913, p. 1828. ^.^^ ^^,_ 2, p. 1301. § 730. 1 Form of petition to deter- 4 Form of attorney's authority to mine heirship, see Jury's Adjudi- appear in proceedings to deter- cated Forms of Pleading and j^jne heirship, see Church's Pro- Practice, vol. 1, p. 10G2, form No. bate Law and Practice, vol. 2, p. 528; Church's Probate Law and ]303_ §733. Practice, vol. 2, p. 1300, § 729. 5 See Kerr's Cyc. Cal. Code Civ. 2 Form of order of court upon Proc, §1664; 2 Church's Probate filing of petition to determine Law and Practice, p. 1297, §§728 heirship, see Church's Probate et seq. I Code PI. and Pr.— 24 359 §§ 282, 283 CODE pleading and practice. [Pt. I, •^ 282. Husband and wife — Appeaeance in suit against. In California where a married woman is sued her hus- band must be joined as a party defendant/ and where husband and wife are sued together, the wife may not only appear and defend her own right, but may defend that of her husband, also, when he neglects to appear and defend.- But to constitute an appearance by either hus- band or wife there must be filed a written notice of ap- pearance,^ or there must be some act done or word spoken in court by the party charged with appearing. A recital in the record that ''now comes the parties by counsel, and the plaintiff mthdraws" a paragraph of his complaint, and that one of the defendants (being the husband) filed his answer, held not to show an appearance by the wife.^ <^ 283. Infants, incompetents or insane persons — Ap- pearance BY. An infant, when suing or sued, must, in California, appear and prosecute by general guardian or by a guardian ad litem, whether the suit be in a court of record^ or in a justice's court.^ We have already seen that a genera] guardian,^ or a natural guardian,* may appear and waive service of process on an infant de- fendant ; but that a guardian ad litem^ or an inf ant*"' can not waive process or service thereof or the formal facts of the service. It is especially provided by statute that in all matters concerning the estates of deceased persons in which an infant is interested, his general guardian may appear for his ward and waive any process, order or notice to show cause. "^ Where in a suit against infants 1 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §372; Consolidated Proc, 2d ed., §370; Consolidated Supp. 1906-1913, p. 1409. Supp. 1906-1913, p. 1408. -' See Kerr's Cyc. Cal. Code Civ. 3 See Kerr's Cyc. Cal. Code Civ. Proc, § 843. Proc, § 371. 3 See, ante, § 253, footnote 3. 3 See Kerr's Cyc. Cal. Code Civ. 4 Id.; footnote 4. Proc, § 1014. 5 See, ante, §254, footnote 5. 4 Rhoades v. Delaney, 50 Ind. cid.; footnote 6. 468. 7 See Kerr's Cyc. Cal. Code Civ, 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 1722. 370 ch. XIII. INFANTS AND INCOMPETENTS. §283 there was no personal service upon them, but tlieir gen- oral guardian appeared and defended for them, it was held that such appearance gave the court jurisdiction of their persons.* The general rule is that an infant must appear by his guardian, and that an appearance by an attorney is not sufficient,^ because an attorney has no authority to enter an appearance for an infant not legally served with process,^^ even though employed for that pur- pose by the natural guardian,^ ^ and such an appearance will not bind an infant not served with process. i- Yet it has been held in California^^ and Missouri,^^ and perhaps elsewhere, that a judgment rendered against an infant in an action in which he has appeared by an attorney without the appointment of a guardian ad litem will be upheld as fully as though he had appeared in person ; but it has been questioned whether this rule applies in a probate contest.^^ s Smith V. McDonald, 42 Cal. 484. See, also, authorities cited, ante, § 253, footnote 3. Lee V. Jenkins, 30 Miss. 592; Winston v. McLendon, 43 Miss. 254; Clarke v. Gilmanton, 12 N. H. 515. As to what does not constitute appearance by an infant, see note, 63 Am. Dec. 558. Infant can not appoint attorney, or acknowledge that service of process legally made, or waive any formal part of the service of process by instructing attorney to appear. — Clarke v. Gilmanton, 12 N. H. 515. 10 Peak V. Shasted, 21 111. 138, 74 Am. Dec. 83; Bonnell v. Holt, 89 111. 77; Timmons v. Timmons, 6 Md. 8; De La Hunt v. Holder- baugh, 58 Ind. 285; Armstrong v. Wyandotte Bridge Co., 1 McC. (Kan.) 166; Goodridge v. Ross, 47 Mass. (6 Mete.) 487; Bailey v. Mc- Ginnis, 57 Mo. 362; Gamoche v, Prevost, 71 Mo. 84; Bloom v. Bur- dick, 1 Hill (N. Y.) 131, 37 Am. Dec. 299; Cruikshank v. Gardner, 2 Hill (N. Y.) 333; Mackey v. Grey, 2 Johns. (N. Y.) 192; Comstock v. Carr, 6 Wend. (N. Y.) 526; Mercer v. Watson, 1 Watts (Pa.) 330; Russell V. Texas & P. R. Co., 68 Tex. 646; Starbird v. Moore, 21 Vt. 529; Somers v. Rogers, 26 Vt. 585. 11 Priest V. Hamilton, 2 Tyl. (Vt.) 50. 12 Valentine v. Cooley, 19 Tenn. (Meigs) 613, 33 Am. Dec. 166. 13 Childs V. Lanterman. 103 Cal. 387, 390, 42 Am. St. Rep. 121, 37 Pac. 382. See: Foley v. California Horseshoe Co., 115 Cal. 184, 196, 5G Am. St. Rep. 94. 47 Pac. 42; Johnston V. Southern Pac. R. Co., 150 Cal. 535, 539, 540, 11 Ann. Gas. 841, 89 Pac. 350. 14 Townsend v. Cox, 45 Mo. 401. 15 Harris. Estate of, 3 Cof. Prob. (Cal.) 7. 371 §§284,285 CODE PLEADING AND PRACTICE. [Pt. I, Incompetent and insane persons are governed by the same rule as to their metho'^ '^f appearance, and regulated therein by the same secti. of the Code of Civil Pro- cedure relating to and controlling infants, as above given. ^^ § 284. Partners : Suits by and against — Appearance. Where four partners, doing business under a firm name, are sued under that firm name, and also as a corpo- ration, a general appearance under that name will pre- clude their objecting to the manner of service of process ;^ and such general appearance will be not only for the copartnership but for each member thereof.- Where to a libel against three partners, one appeared and put in a plea in behalf of himself and Ms copartners, to which the plaintiff replied as to a plea of the firm, and the rejoinder was signed by the ''proctor for the defend- ants : " it was held a sufficient legal appearance of all the defendants to sustain the judgment against them.^ One member of a partnership may acknowledge service of process for the firm,* on the theory that notice to one partner is notice to all f but an appearance by one mem- ber only of a partnership, binds the firm assets only." § 285. State : Suits by^ and against — Appearance : Divorce proceedings. In an action against a state, on an ifi See footnotes 1, 2 and 7, this Patterson. 1 Blackf. (Ind.) :527; section. The Joseph H. Toone, Blatchf. Pr. 1 A n g 1 o-American Packing & 259, Fed. Gas. No. 7542. Provision Co. v. Turner Casing Co., 4 Lucas v. Bank of Darien, 2 34 Kan. 940, 8 Pac. 403. Stew. (Ala.) 280, 319. Partners all appearing advan- After dissolution the rule is tage can not be taken of any otherwise.— Demott v. Swam, 5 irregularity in the service of pro- Stew. & P. (Ala.) 296. cess. — Beal v. Snedicar, 8 Port. 5 King v. National Oil Co., 81 (Ala.) 525. Mo. App. 165. 2 A n g 1 o-American Packing & 6 Taylor v. Felder, 3 Ga. App. Provision Co. v. Turner Casing Co., 110, 59 S; E. 329. 34 Kan. 340, 8 Pac. 403. i Governor may bring suit in s Hill V. Ross, 3 U. S. (3 Dall.) name of state to enjoin corpora- 331, 1 L. Ed. 623. See: Lagow v. tion from committing waste. — 372 ell. XIII,] SUITS AGAINST TOWNS. § 286 order giving the state leave to appear and answer, a de- murrer signed by the attorney-general of the state, as such, he being a practitioner in the court, has been said to be an appearance for the state,- and that if not so intended the demurrer can not be filed or considered by the court.^ If the state shall neglect or refuse to appear upon due service of process,^ no coercive measures will be taken to compel appearance, but the plaintiff will be allowed to proceed ex parte.^ In divorce proceedings, the statute requiring the state to be represented at the trial,^ a record reciting, in the findings of the court, in connection with the appearance of the parties, "and the state of," naming the state, ''ap- peared by," naming the person, ''district attorney";" or showing that the state ' ' appeared through its attorney, ' ' naming him, and that "the district attorney of the county of," naming it, "appeared in person,"^ — this is sufficient to show an appearance by the state, and satisfy the re- quirements of the statute. <§> 286. Towns : Suits by and against — Power to employ COUNSEL. Towns, like cities,^ may, in a proper case, em- state V. Huston, 21 Okla. 786, 97 5 New Jersey v. New York, 30 Pac. 984. U. S. (5 Pet.) 284, 8 L. Ed. 127; 2 New Jersey v. New York, 31 Massachusetts v. Rhode Island, ?y~ V. S. (6 Pet.) 323, 8 L. Ed. 414. U. S. (12 Pet.) 755, 9 L. Ed. 1272. Suit to enjoin state attorney- United States permitted to ap- general from enforcing void state pear and take part in the contro- rate regulation of railroads, is a versy, without becoming a party suit against the state. — Young, Ex to the action, in Florida v. Georgia, parte, 209 U. S. 188, 52 L. Ed. 740, 58 U. S. (17 How.) 478, 493, 15 14 Ann. Cas. 764, 13 L. R. A. L. Ed. 181, 189. (N. S.) 932, 28 Sup. Ct. Rep. 441. 6 As under Oregon statute, Ore. 3 Id. Laws, § 1020, as amended by Laws 4 Process should be served upon 1911, p. 127. state governor and attorney-gen- 7 Jacobs v. Jacobs, 79 Ore. 143, eral. — New Jersey v. New York, 154 Pac. 749. 30 U. S. (5 Pet.) 284, 8 L. Ed. 127; s Crim v. Grim, 80 Ore. 88, 155 Ayers, In re, 123 U. S. 497, 31 Pac. 175. L. Ed. 227, 8 Sup. Gt. Rep. 178. i See, ante, 277. 373 §§287,288 CODE PLEADING AND PRACTICE. [Pt. I, ploy counsel other than the town attorney,- or an attorney to assist the town attorney in a litigation f and may em- ploy counsel to defend town officers sued for acts done in the performance of their official duty, or reimburse them for money expended as counsel fees in such case.^ § 287. Vessels : Actions against — Who may appear. In California, when an action is commenced against any vessel, its owner, or the master, agent or consignee thereof, on behalf of the o^\Tier, may appear and answer or other^vdse plead to the action ; may except to the suffi- ciency of the sureties on the undertaking filed by the plaintiff, and may require sureties to justify.^ § 288. Withdrawal of appearance — Allowance and EFFECT. A notice of general appearance, once served, should not be \\dthdra\vn without leave of court first ob- tained;^ but a withdrawal, without leave of court first obtained, leaves the record in a condition in which a judg- ment by default for want of an appearance can be granted,- or the court may proceed as though the de- fendant were still in its presence.^ A withdrawal "with- out prejudice^ to the plaintiff" of a general appearance entered by an attorney for the defendant means that the 2 Denver, City of, v. Webber, 15 i See Kerr's Cyc. Cal. Code Civ. Colo. App, 511, 63 Pac. 804; People Proc, § 821. V. Warren, 14 111. App. 296. i Gait v. Provident Sav. Bank, 18 Town attorney acted against the Abb. N. C. (N. Y.) 431. measure the town trustees advo- As to effect of withdrawal of cated. — Denver, City of, v. Web- appearance, see discussion in First ber, 15 Colo. App. 511, 63 Pac. 804. Nat. Bank v. Cunningham, 48 Fed. ••: Truman v. Perry, City of, 11 517. Okla. 66, 65 Pac. 923; Holdenville, 2 Rio Grande Irr. Co. v. Gilder- City of, V. Lawson, 40 Okla. 38, 135 sleeve, 174 U. S. 606, 43 L. Ed. Pac. 405. 1104, 19 Sup. Ct. Rep. 762. 4 Cullen V. Carthage, Town of, 3 Graham v. Spencer, 14 Fed. 103 Ind. 196, 53 Am. Rep. 504, 2 607. N. E. 571; Moorehead, City of, v. 4 Meaning of phrase "without Murphy, 94 Minn. 123, 110 Am. St. prejudice." — See Bloxham v. Flor- R e p. 345, 3 Ann. Cas. 434, 68 ida Coast R. Co., 39 Fla. 294, 22 L. R. A. 400, 102 N. W. 219. So. 708. 374 eh. XIII.] WITHDRAWING APPEARANCE. § 288 rights of plaintiff are not to be unfavorably affected by such withdrawal ; and where defects in service had been healed by such appearance, advantage could not again be taken of them on account of the withdrawal.^ Nor can a party served by publication, who answers, be allowed to avoid the effect of such appearance, and have the case proceed as though he had been so served and had not an- swered, by withdrawing his answer and paying fees.*"' 5 Creighton v. Kerr, 87 U. S. (20 <> Williams v. Huling, 43 Tex. Wall.) 8, 22 L. Ed. 309. 113. 375 CHAPTER XIV. NOTICE OF LIS PENDENS. § 289. In general. § 290. Limited to state courts. § 291. Filing of — Necessity for. § 292. Commencement of action not notice. § 293. Effect of failure to file. § 294. When to be filed. § 295. The notice — What to contain. § 296. New notice necessary when. § 297. Actual notice — Effect of. § 298. Effect of lis pendens — In general. § 299. Constructive notice. § 300. Time of commencement. § 301. Property affected by — In general. § 302. Personal property. § 303. Actions to which applicable — In general. § 304. Creditors' suit. § 305. Divorce proceedings. § 306. Ejectment and actions to quiet title. § 307. Eminent domain proceedings. § 308. Mechanics' lien foreclosure. § 309. Partition. § 310. Replevin of personal property. § 311. Tax suit. § 312. Vendor's lien : Action to enforce notes. § 313. Territorial operation of. § 314. Diligence in prosecution necessary. § 315. Lien of judgment or decree. § 316. Operation and eft'ect — Purchaser pendente lite. § 317, Purchaser bound by decrees. § 289. Ix GENERAL. Ill California, in any action affect- ing the title to or the right of possession of real property, the plaintiff, at the time of filing tlae complaint, or the defendant, at the time of filing an answer in which affirma- 27G eh. XIV.] LIS PENDENS — LIMITATION. § 290 tive relief is claimed, or at any time afterward during the pendency of the action, may file and record in the office of the county recorder of the county in which the property is situated, a notice of the pendency of the action. ^ This notice must contain the names of the parties to the action, state the object of the action or defense, and a description of the land.^ From the time of filing such notice for record it will be binding upon subsequent purchasers or encumbrancers of the property affected thereby.^ This is true of actions for the condemnation of land under the power of eminent domain,"* in actions to quiet title,"* and in partition,^ giving constructive notice of the pendency of the action,'^ § 290. — — Limited to state courts. The provisions of the California statutes, referred to in the preceding sec- tion, are limited in their operation and effect to actions brought in the state courts ; they do not apply to proceed- ings in federal courts ;^ and the same is true of all similar state statutes.^ Neither those statutes nor any equivalent proceeding has been incorporated into the rules of tlie United States supreme court, as applicable to suits in equity, nor into the rules of the United States circuit court for the ninth circuit,^ or of any other federal cir- cuit.'* 1 See Kerr's Cyc. Cal. Code Civ. As to territorial operation of, Proc, § 409. see. post, § 313. - Id. - Stewart v. Wheeling & L. E. 3 Id. R. Co., 53 Oliio St. 151. 167. 29 4 See Kerr's Cyc. Cal. Code Civ. |_ r_ a. 438, 41 N. E. 217; RoniPii Proc, 2d ed., §1243; Consolidated ^ Todd. 206 U. S. 363. TA L. Ed. Supp., p. 1822. JQ35 27 Sup. Ct. Rep. 721. -, P-- Kerr's Cyc. Cal. Code Civ. ,, ., ^ , .-o ^ ^^^n.r. nr-, --{Majors V. Cowcll. 51 Cal. 4.8. Proc.T,§ 749, 751. r. Id , § 755. ■* ^^^ Romen v. Todd. 206 U. S. 7 Id.' § 409. See, also, post. § 299. 363. 51 L. Ed. 1095, 27 Sup. Ct. Rep. 1 Majors v. Cowell, 51 Cal. 478, 721. 4S2. 377 §§291,292 CODE PLEADING AND PRACTICE. [Pt. I, <^ 291. Filing of — Necessity for. A notice of lis pen- dens must be filed and appear of record to charge the purchaser of the subject-matter of the suit as a purchaser pendente lite at common law ; mere pendency of the suit does not so charge the purchaser.^ A notice of lis pen- dens binds a subsequent purchaser or incumbrancer from the date on which it is filed for record only.- If no notice of lis pendens is filed, a bona fide purchaser of land, mth- out notice of proceedings pending for its condemnation at time of purchase, is not affected by the proceedings.^ The statutory mode must be followed or there can be no notice of lis pendens as to third parties.* § 292. Commencement of action not notice. The commencement of an action is not notice to subsequent purchasers and incumbrancers of the pendency thereof.^ The commencement of a suit in equity is constructive notice of the pendency of such suit, only, as against per- sons who acquired an interest under a defendant pendente lite.- The mere pendencj^ of a suit, where the bill does not lay claim to any specific land, nor to all the land of defendant in a particular county or place, but asks merely for a discovery of any land in which he has invested money, is not a constructive notice of an equity in any particular piece of land held by defendant.^ The com- 1 Head v. Fordyce, 17 Cal. 149; 102; Sampson v. Ohleyer, 22 Cal. Ault V. Gassaway, 18 Cal. 205; 200. Sampson v. Ohleyer, 22 Cal. 200, See, post, §§ 293, 297. 211; Warnock v. Harlow, 96 Cal. 4 Pennington v. Martin, 146 Ind. 298, 304, 31 Am. St. Rep. 212, 31 635, 637, 45 N. E. 1111. Pac. 166; Gilman v. Carpenter, 22 i Majors v. Cowell, 51 Cal. 47S, N. D. 129, 115 N. W. 662; Pitt v. 489. Rogers, 104 Fed. 387, 390, 43 See, ante, § 291, footnote 1; also C. C. A. 600. notes, 14 Am. Dec. 776; 56 Am. St, See, also, post, § 292. Rep. 860. 2 See Kerr's Cyc. Cal. Code Civ. 2 Stuyvesant v. Hall, 2 Barb. Cli. Proc, § 409. (N. Y.) 151. 3 Bensley v. Mountain Lake 3 Griffith v. Griffith, 9 Paige Ch. Water Co., 13 Cal. 306, 73 Am. Dec. (N. Y.) 315, reversing 1 Hoffm. Ch. 575; Richardson v. White, 18 Cal. (N. Y.) 153. 378 eh. XIV.] FAILURE TO FILE LIS PENDENS. § 293 mencement of an equitable action by service of summons and injunction creates a lis pendens and a lien in the nature of an attachment, but the plaintiff is bound to prosecute diligently to retain the lien.^ Mere issuing of process is not sufficient to create a lis pendens as against a purchaser without actual notice. Service is necessary, though it need not be personal.^ But filing a bill, and attempting to serve the process, are sufficient against the defendant and a purchaser with notice.*^ Until the process is served by publication made, the doctrine of lis pendens does not apply." But this can not be the rule, except in those states where the action is commenced by service of summons. In California the complaint precedes the summons, and must be filed before the action is deemed commenced or the summons issued. In a suit to foreclose a mortgage given by a copartnership, when- ever any member of the copartnership is served with a summons, a lis pendens is at once created to such an extent that no person can purchase from any member of the firm any portion of the subject-matter of the action so as to affect the rights of the plaintiff.^ § 293. Effect of failure to file. We have already pointed out some of the effects of a failure to file a notice of lis pendens ;^ it remains but to add that if notice of lis pendens be not filed, plaintiff can not successfully sot up that notice would have done no good to the purchaser, because he could make no defense, or no better defense than the vendor.- Where no notice is filed, constructive 4 Myrick v. Selden, 36 Barb. sSee: Knowles v. Roblin, 20 (N. Y.) 15. Iowa 101; Dresser v. Wood, 15 5 Hayden v. Bucklin, 9 Paige Ch. Kan. 360. (N. Y.) 512. J gpg ^^^^ g 291, footnote 3. fild.; Weed v. Small, 3 Sandf. Ch (NY) 273 Title of bona fide purchaser 7 Gaines v. Stiles ex dem. Dunn, ^vithout notice is not affected by 39 U S (14 Pet.) 322, 10 L. Ed. Judgment where no notice of lis 476, afRrminglMcL. 321, Fed.'cas^ pendens was filed. — Corwin v. No. 4176. See Fowler v. Byrd, 1 Bensley. 43 Cal. 253, 259. Hempst. 213, Fed. Cas. No. 4999a. 2 Richardson v. White, 18 Cal. 379 §§294,295 CODE PLEADING AND PRACTICE. [ft. I, notice^ is implied on the part of persons dealing with the subject-matter, after trial and judgment, only.* ^ 294. When to be filed. We have already seen^ that, in California, in any action affecting the title to real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may file with the recorder of the county in w^hich the property is situated a notice of the pendency of the action.- A purchaser of real property, pending suit affecting the title to it, is not bound by the judgment unless notice of lis pendens be filed with the county recorder before the purchase.^ The court has no power to take from the files a lis pendens regularly filed.* § 295. The notice — What to contain. We have al- ready seen^ that, in California, the notice of lis pendens should contain the names of the parties to and the object of the action, and also a description of the property in the county to be affected thereby ; and that the defendant may also state in such notice the nature and extent of the relief demanded in the answer.- The description of the prop- erty to be affected should be so specific and certain that any one, reading it, can readily learn what property is intended to be made the subject of the litigation or to be affected thereby.^' If the notice contains the necessary 102; Sampson v. Ohleyer, 22 Cal. Ct. Rep. (5 Duer) 631, 12 How. Pr. 200; Horn v. Jones, 28 Cal. 194. 215. :! As to constructive notice, see, i See, ante, § 289. post, § 299. - See Kerr's Cyc. Cal. Code Civ. 4 Abadie v. Lobero, 36 Cal. 390, Proc, § 409. 400; Pennington V. Martin, 146 Ind. 3 Ray v. Roe, 1 Blackf. (Ind.) 635,' 638, 45 N. E. 1111. 258; Stone v. Connelly, 58 Ky. (1 I'see, ante, § 289. Mete.) 652, 71 Am. Dec. 499; Grif- 2 See Kerr's Cyc. Cal. Code Civ. fith v. Griffith, 9 Paige Cr. (N. Y.) Proc, § 409. 315, 317, reversing 1 Hoff. Ch. 153; 3 Richardson v. White, 18. Cal. Jaffrey v. Brown, 17 Hun (N. Y.) 102. 575; Badger v. Daniel, 77 N. C. 4 Pratt v. Hoag, 12 N. Y. Super. 251; Hamlin v. Bevans, 7 Ohio (pt. 380 eh. XIV.] NEW NOTICE OF LIS PENDENS. § 296 matters, including a sufficient description of the property, but adds a conclusion stating that ''the following real estate is intended to be affected," and then adds a second description of the property which is erroneous, this sec- ond false description does not \4tiate the notice if the notice would have been good without it,^ for the reason that any person of reasonable intelligence, reading it, would not be misled thereby because he would perceive the error f the false description is mere surplusage, and the maxim utile per inutile non vitiatur applies — the use- ful is not ^-itiated by the useless;^ the court say: ''All that the statute requires is in the notice, independently of this superfluity, which serves only to add notice of a falsehood to a notice of the truth. "^ § 296. New notice necessaey when. While it is true that the effect of a notice of lis pendens is not usually destroyed, or otherwise injuriously affected, by an amend- ment to the complaint,^ which simply states some addi- tional evidential facts, and does not alter the cause of action, since it relates back to the filing of the original complaint,^ yet it has been said that a new notice is neces- I) 161, 28 Am. Dec. 625; Lewis v. Wis. 316; Dupont v. Davis, 30 Wis. Mew, 1 Strobh. Eq. (S. C.) 180; 170. Miller v. Sherry, 69 U. S. (2 Wall.) 7 Watson v. Wilcox, 39 Wis. 643, 237, 17 L. Ed. 827. 20 Am. Rep. 63. 1 Brock V. Pearson, 87 Cal. 581, 588, 25 Pac. 963. Irvcorrectly describing land the subject of litigation by boundaries, one of which was a river, one a road, one a fenced boundary, and - Bridger v. Exchange Bank, 126 the last a designated surveyed Ga. S21, 115 Am. St. Rep. 118, 8 line, but incorrectly locating it in •-. R. A. (N. S.) 463, 56 S. E. 97; a designated corner of a larger Norris v. He, 152 111. 190, 43 Am. tract, was held not to render the St. Rep. 233, 38 N. E. 762; Kimball description defective.— McLean v. v. Hutchison, 61 Kan. 191. 59 Pac. Baldwin, 136 Cal. 565, 69 Pac. 269. 275; Turner v. Houpt, 53 N. J. Eq. 4 Watson V. Wilcox, 39 Wis. 643, (« Dick.) 526, 33 Atl. 28; Pendery 20 Am. Rep. 63 V- ^Hen, 53 Ohio St. 251, 41 N. E. 5jjj 255; Cotton v. Docey. 61 Fed. 481. Bid. See: Thompson v. Jones, Amendment adding value of 4 Wis. 106; Jar^^is v. McBride. 18 I a n d, in action for partition.— 381 §297 CODE PLEADING AND PRACTICE. [Pt. I, sary in all those cases in which the complaint is amended by adding- new parties=^ or by giving a different descrip- tion of the land, or by making a change in the amount of the claim.^ This new notice is not necessary except as to such new parties, so that should such new parties be sub- sequently struck out, a new notice will not be required.^ However, it is thought that the safer practice is to file a new notice, where parties are struck out.'' § 297. Actual notice — Effect of. It has been said that actual notice of the pendency of a suit affecting the title to or the right of possession of real property, has the same effect as constructive notice thereof by filing lis pendens.^ Thus, where, after the commencement of an Brandt v. Scribner, 13 Ariz. 169, 108 Pac. 491. As to lis pendens in partition, see, post, § 309. Defective complaint which could not operate as a lis pendens, amendment does not relate back. —Jones V. Lusk, 59 Ky. (2 Mete.) 356. New ground of relief destroys lien of the lis pendens. — Stone v. Connelly, 58 Ky. (1 Mete.) 652, 71 Am. Dec. 499; Jones v. Lusk, 59 Ky. (2 Mete.) 356; Davis v. Wilson, 115 Ky. 39, 74 S. W. 696; Wortham V. Boyd, 66 Tex. 401, 1 S. W. 109. See Cornell University v. Parkin- son, 59 Kan. 365, 53 Pac. 138. — Action to set aside conveyance as fraudulent debtor pendente lite gave a chattel mortgage on the building erected by him as a tenant, an amendment to c o m- plaint praying relief against the buildings, the mortgage was held prior to the judgment for the reason that when the suit was commenced the buildings were chattels, and at the time of the execution o f t h e mortgage the action was against the laud only. — Wheeler & Wilson Mfg. Co. v. Hasbrouck, 68 Iowa 554, 27 N. W. 738. 3 New parties added not neces- sary to file a new lis pendens as to the old parties to the action. — Waring v. Waring, 7 Abb. Pr. (N. Y.) 472. 4 Clarkson v. Morgan's Devisees, 45 Ky. (6 B. Mon.) 441; Clark v. Havens, 1 Clark Ch. (N. Y.) 560: Curtis v. Hitchcock, 10 Paige Ch. (N. Y.) 399, 2 Leg. Obs. 363. 5 Waring v. Waring, 7 Abb. Pr. (N. Y.) 472. 6 Curtis V. Hitchcock, 10 Paige Ch. (N. Y.) 399, 2 Leg. Obs. 363. 1 Sampson v. Ohleyer, 22 Cal. 200; Sharp v. Lumley, 34 Cal. 611, 615; Martin v, Abbott, 72 Neb. 91, 100 N. W. 142; Hovey v. Elliott, 118 N. Y. 134, 23 N. E. 475 (apply- ing rule to purchaser of bonds with notice, pending litigation); "No good reason why a party taking an interest in a tract of land pending a proceeding to fore- close a mortgage upon it, with actual notice of the action, should 382 Ch. XIV.] EFFECT OF LIS PENDENS. § 298 action of ejectment against a tenant, he gave notice to his landlord, and requested him to defend, and the latter (employed an attorney to conduct the suit, it was held that the actual notice given to the landlord was, as to him, equivalent to the filing of a lis pendens, and in an equal degree made the subsequent judgment obligatory upon him.2 So, also, actual notice of the pendency of a suit in foreclosure is the same in effect, to the party receiving it, as if notice of lis pendens had been filed.^ <§. 298. Effect of lis pendens — In general. The effect of a notice of lis pendens is to make a subsequent pur- chaser or incumbrancer from or of a party to the action a mere volunteer, affected by the judgment which may be rendered in the suit in which notice is given ;^ and it abro- gates the rule making the mere pendency of an action constructive notice.- The California statute does not give any new rights to the plaintiff, but limits rights which he had before; it simply adds to the common-law rule a single term, to-wit, to require for constructive notice, not only a suit, but filing notice of it; and there is no distinc- tion under the statute between different kinds of interest in or title to real estate.^ A notice of lis pendens does not affect the title to the land or give constructive notice n o t be bound by the judgment, Mfg. Co. v. Brown, 8 Wash. 347, although no notice of lis pendens 351, 36 Pac. 273. had been filed. — Sharp v. Lumley, 'i Gregory v. Haynes, 13 Cal. 591. 34 Cal. 611, 615. 5 9 4; Haynes v. Calderwood, 23 Purchaser with notice, from Cal. 409; Hurlbutt v. Butenop, 27 party to suit, during the pendency Cal. 50, 56; Sharp v. Lumley, 34 of the action, must apply to court Cal. 611, 615; Amador County v. for leave to protect his interest in Mitchell, 59 Cal. 178; Hillside Coal the suit. — Corwin v. Bensley, 43 & I. Co. v. Heermans, 191 Pa. St. Cal. 253; Walker v. Sanders, 103 119, 43 Atl. 76 (applying doctrine Minn. 127, 123 Am. St. Rep. 126, of notice of lis pendens to one 114 N. W. 650. purchasing fourteen years after 2 Sampson v. Ohleyer, 22 Cal. the commencement of the action). 200. - Sampson v. Ohleyer, 22 Cal. 3 Sharp V. Lumley, 34 Cal. 611. 200. See: Whittaker v. Greenwood, 17 .'? Richardson v. White, 18 Cal. Utah 33, 36, 53 Pac. 736; Pacific 102; Sampson v. Ohleyer, 22 Cal. 383 § 299 CODE PLEADING AND PRACTICE. [Pt. I, unless recorded.* Notice by lis pendens does not extend so as to affect those who claim under parties who were not parties to the litigation f and it does not operate as notice, unless the court has jurisdiction of the thing.'^ Notice of lis pendens filed by plaintiff imparts notice to a purchaser from him pending the suit, so that a judgment adverse to the plaintiff would bind such purchaser.' The onh^ office of the lis pendens is to give constructive notice to, and bind by the subsequent proceedings, those who deal with the parties to the suit in regard to the property involved in the action during its pendency and before judgment; no notice is necessary to bind a purchaser or incumbrancer after judgment.^ A lis pendens does not in and of itself affect the title to the property, its sole office being to give constructive notice'^ of the pendency of the action; thus, filing a notice of lis pendens in an action to foreclose a lien will not establish the lien's priority as against a purchaser under an execution sale pending the foreclosure of the lien.^*^ § 299. Constructive notice. A notice of lis pen- dens, filed in accordance with the statutory regulations,^ liOO; Horn v. Jones, 28 Cal. 194; 21 Pac. 1037; Carrington v. Brents, McXamara v. Oakland Building & 1 McL. 167, Fed. Cas. No. 2446. L. Assoc, 132 Cal. 247, 249, 64 Pac. t Welton v. Cook, 61 Cal. 481, 277; Hall v. Nelson, 22 Barb. distinguishing Corwin v. Bensley, ( x\. Y.) 88, 14 How. Pr. 32. 43 Cal. 259, 263, as not an adjudi- 4 Richardson v. White, 18 Cal. cation upon this point. See 102; Sampson v. Ohleyer, 22 Cal. Bridger v. Exchange Bank, 126 Ga. 2QQ 827, 115 Am. St. Rep. 118, 8 L. R. A. (N. S.) 463, 56 S. E. 100. Purchaser required to examine « Abadie v. Lobero, 36 Cal. 390; lis pendens filed in the county gt^g^i^an v. Andrews, 49 N. Y. 478. where the land lies, only.-Samp- ,^ ^^ ^^ constructive notice, see, son V. Ohleyer, 22 Cal. 200. ,. g 299 5 Scarlett v. Gorham, 28 111. 319; 10 Purser v. Cady, 120 Cal. 214, Gilman v. Carpenter, 22 S. D. 130, 53 pac. 489. 115 N. W. 662. 1 A.s California statute, Kerr's 6 See: Houston v. Timmerman, Cyc, Cal. Code Civ. Proc, § 409. 17 Ore. 490, 11 Am. St. Rep. 848, See, also, ante, § 289. 384 I Ch. XIV.] CONSTRUCTIVE NOTICE. § 299 is constructive notice- to a subsequent purchaser or in- cumbrancer, and he and his interest will be bound by the decree entered in the suit.^ The only way to charge a purchaser or incumbrancer of property pending a suit with constructive notice of the suit is by filing a notice of lis pendens according to the statute.'' From the time of filing only, shall the pendency of the action be construc- tive notice to a purchaser, or incumbrancer of the prop- erty affected thereby.^ But a purchaser of land subject to the lien of a mortgage is not affected by lis pendens, where the title to the mortgage only was involved in the suit, and not the land itself.^ The notice of lis pendens applies to parties to the action and purchasers and incum- brancers under them subsequent to filing the notice ;" and is as effectual as an injunction.^ But a notice of lis pendens, filed and recorded as provided by statute, is not notice to a bona fide purchaser from a person not a party to the action, and holding by a title antedating the com- mencement of the action in which the notice of lis pendens Avas filed.^ :j As to actual notice and its 4 Ault v. Gassaway, 18 Cal. 205; effect, see, ante, § 295. Sampson v. Ohleyer, 22 Cal. 200, •iSee: Welton v. Cook, 61 Cal. 21I; Grattan v. Wiggins, 23 Cal. 4S1, 486; Pearson v. Creed, 78 Cal. ^g^ gg. corwin v. Bensley, 43 Cal. 144, 20 Pac. 302; Randall v. Duff, 253 263 79 Cal. 115, 3 L. R. A. 754, 19 Pac. 532. 21 Pac. 610; Brock v. Pearson, ' ^ee Kerr's Cyc. Cal. Code Civ. 87 Cal. 581, 588, 25 Pac. 963; ^^°^- § ^°9- Bridger v. Exchange Bank, 126 Ga. 6 Green v. Rick, 121 Pa. St. 130, 827, 115 Am. St. Rep. 118, 8 L. R. A. 6 Am. St. Rep. 760, 2 L. R, A. 48, (N. S.) 463, 56 S. E. 100; Sears 15 Atl. 497. V. Hyer, 1 Paige Ch. (N. Y.) 483; ^ Chapman v. VV^est, 17 N. Y. 125. Harrington v. S 1 o d e, 22 B a r b. affirming 10 How. Pr. 367; People (N. Y.) 161. ^^ j,^j Tremont Bank v. Connolly, ^^See, also, note, 56 Am. St. Rep. ^ ^^^ ^^ ^^ ^^ ^^8. Amendment to complaint after « Stevenson v. Fayerweather, 21 filing and recording notice of lis How. Pr. (N. Y.) 449. pendens does not destroy or in » Noyes v. Crawford, 118 Iowa any way affect the notice.— 87 Cal. 18, 96 Am. St. Rep. 363, 91 N. W. 581, 588, 25 Pac. 963. 799. I Code PI. and Pr.— 25 385 §§300,301 CODE PLEADING AND PRACTICE. [Pt. I, *§ 300. Time of commencement. The time of the commencement of a notice of lis pendens to impart con- structive notice^ is largely a matter of the wording and provisions of the statute under which filed. In Oregon a notice of lis pendens operates as notice to subsequent purchasers and incumbrancers from the date on which the complaint is filed and the summons is served,- while in Kansas and elsewhere the mere filing of a petition and the issuance and service of process is not sufficient to start the notice of lis pendens running.'* In California, by statutory provision, the notice becomes effective on the date when filed with the county recorder for record."* § 301. Property affected by — In general. The doc- trine of constructive notice to subsequent purchasers and incumbrancers by a notice of lis pendens, filed and re- corded as required by statute, requiring all the world to take notice of litigation and proceedings pending in court, does not apply to commercial paper taken before matur- ity,^ although a different rule applies where taken after maturity ;- but it does apply to choses in action^ and other 1 As to constructive notice, see, Leitch v. Wells, 48 N. Y. 585; ante, § 299. Stone v. Elliott, 11 Ohio St. 252, :i Walker v. Goldsmith, 14 Ore. 258; Keifer v. Ehler, 18 Pa. St. 125, 12 Pac. 537. 388; Hill v. Kroft, 29 Pa. St. 186; 3 See Campbell v. Reese, 8 Kan. Diamond v. Lawrence County, 37 App. 518, 56 Pac. 543. Pa. St. 353, 78 Am. Dec. 429; Day ■i See Kerr's Cyc. Cal. Code Civ. v. Zimmerman, 68 Pa. St. 72, 8 Am. Proc, § 409. Rep. 157; Board v. Texas & P. R. 1 Wiston V. Westfeldt, 22 Ala. Co., 46 Tex. 316; National Bank 760, 58 Am. Dec. 278; Mayberry v. v. Texas, 87 U. S. (20 Wall.) 72, Morris, 62 Ala. 113; Powell v. 88, 22 L. Ed. 295, 298; Kellogg v. National Bank of Commerce, 19 Fancher, 23 Wis. 21, 99 Am. Dec. Colo. App. 57, 74 Pac. 536; Miner 96; Warren County v. Marcy, 97 V. West, 38 Ga. 18, 95 Am. Dec. U. S. 96, 24 L. Ed. 977; Durant v. 379; .Junction R. Co. v. Cleney, 13 Towa County, 1 Woolw. 69, 73, Fed. Ind. 163; State v. Wichita County Cas. No. 4189; Myers v. Hazzard, Commrs., 59 Kan. 512, 53 Pac. 526; 4 McC. 94, 50 Fed. 55. C a r r v. Lewis Coal Co., 15 Mo. 2 Kellogg v. Fancher. 23 Wis. 21, App. 551; Murry v. B a 11 o u, 1 99 Am. Dec. 96. .Johns. Ch. (N. Y.) 566; Murry v. .s Diamond v. L.awrence County, Lyburn, 2 Johns. Ch. (N. Y.) 441; 37 Pa. St. 353, 78 Am. Dec. 429. 386 ch. XIV.] WHAT AFFECTED BY LIS PENDENS. §301 personal property, although the courts are not in har- mony on the latter point ;^ e. g., bank stock,^ furniture,** municipal aid bonds issued to assist in the construction of a railroad and the like," though not to county bonds'* or municipal bonds generally where purchased for value before maturity without actual notice," patent rights pur- chased pendente lite,^*' railroad bonds, ^^ and property on which a chattel mortgage is being foreclosed. ^^ County bonds: Where a bill was filed enjoining a county from issuing bonds, and injunction was granted subse- quently. A statute was passed authorizing the issue, and the issue was made. A year after the statute, another bill was brought to declare the bonds invalid, but they were decreed good. Two years after this decree, a bill of review was brought, and the former decree reversed ; it was held that the bonds were not issued pendente lite.^^ 4 See, post, § 302. sLeitch v. W^ e 1 1 s, 48 Barb. (N. Y.) 637, but this case was re- versed in 48 N. Y. 585. fi Scudder v. Van A m b u r g, 4 Edw. Ch. (N. Y.) 29. 7 Diamond v. Lawrence County, 37 Pa. St. 353, 78 Am. Dec. 429. Compare, however. New Albany, L. & C. Plank Road Co. v. Smith, 23 Ind. 355; Mercer County v. Hackett, 68 U. S. (1 Wall.) 83, 95, 17 L. Ed. 548. >* Warren County v. Marcy, 97 U. S. 96, 24 L. Ed. 797. nSee: Winston v. Westfield, 22 Ala. 760, 58 Am. Dec. 278; Minns V. West. 38 Ga. 18, 95 Am. Dec. 379; Leitch v. Wells, 48 N. Y. 585, 586; Stone v. Elliott, 11 Ohio St. 252; Keifer v. Ehler, 18 Pa. St. 388; De Vos v. Richmond, City of, 18 Gratt. (Va.) 338, 98 Am. Dec. 646; Olcott v. Fond du Lac County Supervisors, 83 U. S. (16 Wall.) 6 7 8, 2 1 L. Ed. 382, reversing 2 Diss. 368, Fed. Cas. No. 104 79; National Bank of Washington v. Texas, 87 U. S. (20 Wall.) 72, 22 L. Ed. 295; Warren County v. Marcy, 97 U. S. 96, 24 L. Ed. 977; Warren County v. Post, 97 U. S. 110, 24 L. Ed. 982 note; Warren County V. Portsmouth Sav. Bank. 97 U. S. 110, 24 L. Ed. 9S2 note; Orleans v. Piatt, 99 U. S. 676, 25 L. Ed. 404; Cass County v. Gillett, 100 U. S. 5 8 5, 2 5 L. Ed. 5 8 5; Durant v. Iowa County, 1 Woolw. 69 Fed. Cas. No. 4189. 10 Tyler v. Hyde, 2 Blatchf. 308, Fed. Cas. No. 14309. 11 Diamond v. Lawrence County, 37 Pa. St. 353, 78 Am. Dec. 429. iL' Boiling V. Carter, 9 Ala. 921; Broom v. Armstrong, 137 U. S. 266, 34 L. Ed. 648, 11 Sup. Ct. Rep. 73. 13 Lee County v. Rogers, 74 U. S. (7 Wall.) 181, 19 L. Ed. 160, 387 §302 CODE PLEADING AND PRACTICE. [Pt. I, ^302. Personal, peoperty. Supplementing what is said in the preceding section, it is to be noted that the question as to whether personal property is subject to the doctrine of lis pendens is one upon which the decided cases are not agreed, some cases excluding from the operation of the doctrine of lis pendens all articles of ordinary commerce sold in the usual way,^ as well as all movable personal property, — such as horses, cattle, grain, and the like;- other cases hold that the doctrine of lis pendens applies with equal force to controversies in re- gard to personal property as to those involving the title to real estate;^ while still other cases are unwilling to hazard a ruling upon the precise question.^ It may at least be safely said that the general tendency of the courts at the present time is to limit the application of the doc- trine of constructive notice by a notice of lis pendens to suits affecting real estate f and the statutes in many, if not all, the jurisdictions, as in California,^ contemplate 1 Carr v. Lewis Coal Co., 15 Mo. A p p. 551; Warren County v. Marcy, 97 U. S. 96, 24 L. Ed. 977. 2 Winston v. Westfeldt, 22 Ala. 760, 58 Am. Dec. 278; Miles v. Lefi, 60 Iowa 168, 14 N. W. 233; Chase v. Searls, 45 N. H. 511, 517; Murry v. Lyburn, 2 Johns. Ch. (N. Y.) 441. 3 Bowell V. National Bank of Commerce, 19 Colo. App. 57, 74 Pac. 536; Blake v. Bigelow, 5 Ga. 439 ; Bank v. Burke, 4 Blackf . (Ind.) 144; McCutchen v. Miller, 31 Miss. 65, 83; Bergman v. Inman, 43 Ore. 459, 99 Am. St. Rep. 771, 72 Pac. 1086; Berry v. Gibbons, L. R. 8 Ch. 749, but this last case has been reversed; see Wigram v. Buckley, C. A. (1894) 3 Ch. 494. See authorities cited, post, § 310. See, also, Bennetton Lis Pendens, §§83, 128, 129; 4 Cent. L. J. 27; 31 Cent. L. J. 54. In Colorado, under Mill's Ann. Code, § 36, while the doctrine of lis pendens has been relaxed as to real estate, as to personal prop- erty it remains as at common law. — Powell V. National Bank of Com- merce, 19 Colo. App. 57, 74 Pac. 536, citing Leitch v. Wells, 48 N. Y. 585, 602. Legs purchased pending litiga- tion to determine a claim of lien, taken subject to determination of court in judgment to be thereafter rendered. — Bergman v. Inman, 43 Ore. 459, 99 Am. St. Rep. 771, 72 Pac. 1086. 4 McLourine v. Monroe, 30 Mo. 462. 5 Houston V. Timmerman, 17 Ore. 499, 11 Am. St. Rep. 848, 4 L. R. A. 716, 21 Pac. 1037. Kerr's Cyc. C^. Code Civ. Proc, § 409. 388 ch. XIV.] ACTIONS TO WHICH APPLICABLE. § 30J and comprehend within their provisions suits affecting real estate only. Lord Justice Lindley, after reviewing all the English cases on the question, says: I am of opinion that the doctrine of lis pendens is inapplicable to personal property, other than chattel interests in land. The inconvenience of extending the rule to ordinary per- sonal property is so extremely serious that, in my opinion, it would be wrong to so extend it, even if such extension could be justified by reasoning from well-established gen- eral propositions which might serve as premises for ar- riving at such a conclusion.'^ § 303. Actions to which applicable — In general. The sole object of a notice of lis pendens is (1) to give parties already interested either in the title, or in the right to possession, a chance to defend, and (2) to notify third persons becoming subsequent purchasers or incumbran- cers pending of the litigation ;^ and applies to all actions which affect the title to land, or the right to the pos- session thereof;- and according to the doctrine of some of the cases, applies, also, to suits affecting personal property.^ The right to file a notice of lis pendens in all actions in which the rule or doctrine is applicable, is an absolute right,"* and applies to the defendant seeking affirmative relief as well as the plaintiff.^ The main pur- pose of the rule or doctrine is to keep the subject-matter of the litigation within the power of the court until the judgment or decree has been entered; otherwise the judg- ment or decree might be rendered abortive and impossible of execution by successive alienations pending the litiga- tion.^ T Wigram v. Buckley, C. A. 3 See, ante, §§ 301, 302, (1894) 3 Ch. 494. 4 Mills v. Bliss, 55 N. Y. 139. 1 Richardson v. White, 18 Cal. ^ g^^_ ^^^^^ g 289. 102; Sampson v. Ohleyer, 22 Cal. o„A TT T oo /-. 1 tnA. G Houston V. Timmerman, 17 Ore. 200; Horn v. Jones, 28 Cal. 194 „, T 1 r>l r^ ^ cto 490, 11 Am. St. Rep. 848, 2 L. R. A. Sharp V. Lumley, 34 Cal. 612. ' „ „ „ ,Tr . n n„i ^ ^^ r.j,r 716, 21 Pac. 1037. •2 Kerr s Cyc. Cal. Code Civ. Proc, § 409. 389 §304 CODE PLEADING AND PRACTICE. fPt. 1, §304. Creditors' suit. The equitable doctrine of constructive notice by lis pendens applies to a creditor's suit on the filing of his complaint or bill to subject prop- erty of the defendant to the payment of his judgment theretofore recovered at law, and creates a lien upon the effects of the judgment debtor/ giving priority over all other judgment creditors,- which lien is not divested by the death of the debtor;" but to constitute a lis pendens the complaint, bill or petition must be filed and the sum- mons served upon the defendant and other party inter- ested,^ and some of the cases hold that a creditor's suit creates no lien in favor of the plaintiff in the absence of an injunction.^ The fact that a final decree in a creditor's suit, establishing the lien, is not rendered until long after the judgment at law, which it is sought to enforce, has 1 Miller v. Sherry, 69 U. S. (2 Wall.) 237, 17 L. Ed. 827. See Plumb V. Bateman, 2 App. D. C. 17 1; Weightman v. Washington Critic Co., 4 App. D. C. 143; Met- calf V. Barker, 187 U. S. 172, 47 L. Ed. 126, 23 Sup. Ct. Rep. 70; Adler Goldman Commission Co. v. Williams, 211 Fed. 536. Lien of creditors' Bill on profits derived from mortgaged property, held to be superior to that of mort- gagee in such profits, in American Bridge Co. v. Heidelbach, 94 U. S. 800, 24 L. Ed. 144. Personal property held not to be affected, in Meredith v. Thompson, 4 Alaska 370. Suit to cancel land contract and to enjoin conveyance, acts as an equitable levy on the property. — Waters v. Shinn, 178 Fed. 357. •1 Lyon v. Robbinson, 46 111. 280. Judgment creditors rn a k i n g levies and then filing creditors' bills to set aside fraudulent con- veyance and subject property to payment of their judgments, priorities are in order of levies and not in order of filing bills in the creditors' suits. — Kinmouth v. White, 61 N. J. Eq. 362, 48 Atl. 954. 3 King v. Goodwin, 130 111. 108, 17 Am. St. Rep. 279, 22 N. E. 534. 4 Hallorn v. Trum, 125 111. 254, 17 N. E. 825; Walker v. Goldsmith, 14 Ore. 149, 12 Pac. 557. See, post, footnote 14, this sec- tion, and text going therewith. As to when bill operates as lis pendens, see Hayden v. Thrasher, 28 Fla. 184, 9 So. 860. 5 Rioux V. Cronin. 222 Mass. 139, 109 N. E. 901. Injunctional order in creditors' suit to subject debt owing to non- resident defendant to payment of judgment against him, -restraining payment of such debt to such non- resident defendant, constitutes an equitable levy on the same. — Bragg V. Gaynor, 85 Wis. 487, 21 L. R. A. 167, 55 N. W. 925. 390 ell. XIV.] APPLICABLE TO CREDITORS' SUIT. § 304 ceased to be a lien, by reason of the operation of the statute of limitations, is immaterial. *"' Filing a creditor's suit four months before bankruptcy proceedings are insti- tuted, gives a lien on the bankrupt's property,^ which dates from the filing of the bill, and is not affected by the subsequent filing of the petition in bankruptcy,** the trus- tee in bankruptcy taking subject to the lien f but filing a bill to dissolve a corporation has no effect upon a prior attachment, — it merely suspends liens which can be en- forced in a court of equity, only.^° A creditor's suit to subject property bought with the proceeds of a fraudu- lent sale, brought after the lapse of the period of limita- tion, is barred, even though the proceeds were first in- vested in another state.^^ When notice of the pendency of a suit against a conveyance in fraud of creditors has been filed, a conveyance of the property made since the filing of the bill can not affect the complainant's rights. ^- A creditor's bill, to be a lis pendens, must be so definite in the description of the estate that any one reading it can learn thereby what property is the subject of litiga- tion.^^ Simple-contract creditor may file a creditor's suit to subject property of the defendant to the pa^Tuent of his claim, and acquire a lien on the defendant's property superior to the rights of subsequent purchasers thereof. Thus, where such a creditor of an insolvent corporation r. Davidson v. Burke, 143 111. 148, Atl. 670. See Hines v. Duncan, 79 36 Am. St. Rep. 373, 32 N. E. 516. Ala. 118, 58 Am. Rep. 584. TMetcalf V. Barker, 187 U. S. ^'' ^'"ller v. Horner, 69 Kan. 470, 172, 47 L. Ed. 126, 23 Sup. Ct. Rep. "^^ ^^^^ ^^• „„ i2Buckman v. Montgomery, 14 N. J. Eq. (1 McC.) 106, 80 Am. N Doyle V. Heath, 22 R. I. 219, 47 ^^^ ^29 Atl. 215; Claflln v. Llsso, 4 Woods iJ Miller v. Sherry, 69 U. S. (2 253, 16 Fed. 898. Wall.) 237, 17 L. Ed. 827. See: '•• Taylor v. Taylor, 59 N. J. Eq. Norris v. He, 152 111. 202, 43 Am. 89, 45 Atl. 440. St. Rep. 242, 38 N. E. 765; Jones i<»Cobb V. Camden Sav. Bank, v. McNarrin, 68 Me. 341, 28 Am. 106 Me. 184, 20 Ann. Cas. 547, 76 Rep. 72. 391 § 305 CODE PLEADING AND PRACTICE. [Pt. I, brought suit to have its affairs placed in the hands of a receiver, and to cancel a trust deed and chattel mortgage given on certain of its assets to one A, and after personal service had been made upon A, and pending the action, A transferred his claim against the insolvent corporation, and the trust deed and chattel mortgage securing the same, to B ; and B later brought suit to collect the claim, and to enforce the trust deed and chattel mortgage, — the court held that the doctrine of lis pendens applied to the sale of the claim to B, and that he and his cestui que trust were bound by the decree rendered in the creditor's suit for the cancellation of the claim.^^ <^ 305. Divorce proceedings. The general rule of law is that in proceedings for divorce a decree of court allowing alimony, to be paid in installments, is in the nature of a personal charge upon the husband, rather than upon his real estate, and is not a lien upon his real estate unless made so by the decree,^ the action not bind- ing the property with a lis pendens f although it has been held that where one purchases property from a husband during the pendency of an action for divorce, and with actual knowledge of such action, he takes the property sub- ject to any decree that may be rendered in such action, — - that is, subject to the doctrine of lis pendens.^ Particu- larly is the rule of the nonapplicability of the doctrine of lis pendens true where the complaint for the divorce does not describe any particular piece of land and seeks to Erroneous description of land Almond v. Almond, 4 Rand. (Va.) does not operate as notice to sub sequent purchaser. — Jones v. Mc Narrin, 63 Me. 341, 28 Am. Rep. 72 14 Mellen v. Moline Ironworks 131 U. S. 352, 33 L. Ed. 178, 9 Sup Ct. Rep. 871. See: Dovey's Appeal 97 Pa. St. 160; Belmont Nail Co V. Columbia I. & S. Co., 46 Fed. 8 662, 15 Am. Dec. 781. 2 Houston V. Timmerman, 17 Ore. 499, 11 Am. St. Rep. 848, 4 L. R. A. 716, 21 Pac. 1037. See: Scott v. Rogers, 77 Iowa 483, 42 N. W. 377; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375. 3 Powell V. Campbell, 20 Nev. 1 See: Hamlin v. Bevans, 7 Ohio 232, 19 Am. St, Rep. 350, 2 L. R. A. (pt. I) 161, 28 Am. Dec. 625; Olin 615, 20 Pac. 156; Daniel v. Hodges, V. Hungerford, 10 Ohio 268, 271; 87 N. C. 95. 392 Ch. XIV.] EJECTMENT — EMINENT DOMAIN. §§ 306, 307 subject it to tlie payment of any alimony that may be recovered ;* but when a wife, suing for a divorce, in her complaint describes the property of her husband, and asks to have it set aside to her for her support, the rule of lis pendens can be invoked by her against one who pur- chases during the pendency of the action, and with notice thereof.^ ^ 306. Ejectment and actions to quiet title. The doctrine of constructive notice by lis pendens is appli- cable in actions of ejectment;^ and, in California, is by statute made applicable in actions to quiet the title to land.2 (^ 307. Eminent domain proceedings. In Califor- nia, by statute,^ the doctrine of constructive notice by filing a notice of lis pendens is made applicable to pro- ceedings to condemn lands under the power of eminent domain f but it has been said that the doctrine does not apply to proceedings before a board of supervisors for condemnation of land for road purposes.^ 4 Hamlin v. Bevans, 7 Ohio (pt. to prevent the enforcement of any I) 161, 28 Am. Dec. 625. decree that may be rendered, is As to necessity for particular valid, subject of course to the description of the land, see, ante, decree. — See Sun Ins. Co. v. White, § 295. 123 Cal. 202, 55 Pac. 902. B Tolerton v. Willard, 30 Ohio St. i partridge v. Shepard, 71 Cal. 579. See: Draper v. Draper, 68 470, 12 Pac. 480; Irving v. Cun- 111. 17; Sapp v. Weightman, 103 ningham, 77 Cal. 52, 18 Pac. 878. 111. 150; Harshberger v. Harsh- .Kerr's Cyc. Cal. Code Civ. berger, 26 Iowa 503; Wilkerson v. pj-oc, §§749', 751. Elliott, 43 Kan. 590, 10 Am. St. Rep. 158, 23 Pac. 614; Powell v. Campbell, 20 Nev. 232, 19 Am. St. Rep. 350, 2 L. R. A. 615, 20 Pac. 156 1 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §1243; Consolidated Supp. 1906-1913, p. 1822. 2 Roach v. Riverside Water Co., Compare: Authority, footnote 2, 74 Cal. 263. 15 Pac. 776; Drink- this section house v. Spring Valley Water Bona fide' mortgage of separate Works, 87 Cal. 253, 256, 25 Pac. property o f husband pending d t 393 420. action by wife for divorce and 3 Curran v. Shattuck, 24 Cal. alimony, there being no interest 427. §§ 308, 309 CODE PLEADING AND PRACTICE. [Pt. 1, § 308. Mechanics' lien foreclosure. The doctrine of lis pendens does not apply in actions to foreclose a mechanics' lien.^ The purchaser or incumbrancer of property upon which a mechanics' lien has been filed is chargeable with notice thereof by virtue of the mechanics ' lien statute itself, without the filing of a notice of lis pendens.- But it has been said that in equity notice of lis pendens is not given to bona fide purchasers until summons served upon material defendants.^ But in those cases in which claimants under a mechanics' lien are made defendants in a proceeding to foreclose a mort- gage on the premises covered by the mechanics ' lien, such claimants are required to file notice of lis pendens to protect their interests, in some jurisdictions,^ and this filing of notice of lis pendens must be made within the period during which the notice of claim of mechanics ' lien binds the property.^ § 309. Partition. By statute in California, the doctrine of lis pendens is made applicable to actions for the partition of real estate. Under this statute, immedi- ately after filing the complaint in the superior court, the plaintiff must record in the office of the recorder of the county or of the several counties in which the property is situated a notice of the pendency of the action, contain- ing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing, it shall be deemed notice to all persons.^ In Arizona the lis pendens dates from the filing of the complaint for partition, al- 1 See: Sheridan v. Cameron, 65 4 Danziger v. Si-monson, 116 Mich. 680, 32 N. W. 894; Julius v. N. Y. 329, 22 N. E. 570. Callahan, 63 Minn. 154, 65 N. W. r, Hammond v. Shephard, 50 Hun 267. (N. Y.) 318, 3 N. Y. Supp. 349. 2 Empire Land & Canal Co. v. i Kerr's Cyc. Cal. Code Civ. Engley, 18 Colo. 388, 33 Pac. 153. Proc, § 755. 3 See Armstrong Cork Co. v. As to necessity for particular Merchants' Refrigerating Co., 107 and accurate description of the C. C. A. 93, 184 Fed. 206. land, see, ante, § 295. 394 L'h. XIV.] TO WHAT APPLICABLE EXTENT. §§310-01;] though the complaint is thereafter amended so as to include necessary allegations as to the value of the prop- erty.- § 310. Replevin of personal property. We have already seen the cases are not harmonious upon the question as to whether the doctrine of constructive notice by lis pendens applies to personal property.^ In those jurisdictions in which the doctrine is held applicable to suits affecting personal property, it applies in an action for the recovery of the possession of specific personal property.^ § 311. Tax suit. In an action to enforce the col- lection of taxes duly and regularly assessed by a fore- closure of the lien, a notice of lis pendens is unnecessary, because the lien is given by statute, and is binding upon all subsequent purchasers and encumbrancers.^ But it has been said that the rule does not apply to city property severed from the city after assessment but before the tax became due,- or to land in the forest reserve relinquished to the United States after the tax became a lien, but before the sale was fixed. ^ §312. Vendor's lien: Action to enforce notes. An action to recover on vendor's lien notes does not create constructive notice by lis pendens to subsequent purchasers or incumbrancers.^ § 313. Territorial operation of. The territorial opera- tion of a notice of lis pendens is co-extensive with the territorial jurisdiction of the court, provided only that 2 Brandt v. Scribner, 13 Ariz. Adams v. Osgood, 42 Neb. 450, 457, 175, 108 Pac. 493. 60 N. W. 869. 1 See. ante, §§ 301, 302. ^ Gillmore v. Dale, 27 Utah 377. ~ See: Swantz v. Pillow, 50 Ark. „;. p „„ . 300, 7 Am. St, Rep. 98. 7 S. W. 167; Carr v. Lewis Coal Co.. 15 Mo. ' Territory v. Perrin. 9 Ariz. 320, App. 551. 83 Pac. 362. 1 Reeve v. Kennedy, 43 Cal. 643; i Mansur & Tebbets Implement Empire Land & Canal Co. v. Eng- Co. v. Beer: 19 Tex. Civ. App. 311, ley, 18 Colo. 388, 393, 33 Pac. 153; 313, 45 S. W. 972. 395 § 314 CODE PLEADING AND PRACTICE. [Pt. T, the property to be affected is situated within such terri- torial jurisdiction. In the case of actions in a state court, in the absence of a statute restricting the operation to the particular county in which the land to be affected is lo- cated,^ the operation of the law of lis pendens extends to the boundary of the state. In the case of personal prop- erty,^ in analogy to the law applicable to chattel-mortgage liens, under which on removal of the mortgaged chattels to another state they are held to be subject to the lien created in the state where the mortgage was executed,^ it has been argued that personal property removed beyond the limits of the state, pendente lite, remains subject to the lien of the lis pendens,^ but this contention is not sup- ported by any adjudicated case, and is thought to be unsound. Where the action is in a federal circuit or dis- trict court, the lis pendens has been said to affect all property situated within the boundaries of the district of such court, irrespective of any state statute upon the subject.^ <§ 314. Diligence in prosecution necessary. After the lien of a lis pendens has attached, in order to preserve that lien, the plaintiff, — or the defendant, where his answer asks affirmative relief, and he files a lis pen- 1 As under California statute. 7 Ohio St. 134, 70 Am. Dec. 62; See Kerr's Cyc. Cal. Code Civ. Craig v. Williams, 90 Va. 500, 44 Proc, §409. A"^- S*- ^^P- 934, 18 S. E. 899; Studebaker Bros. Co. v. Mau, 13 As to restriction to state court of operation of statute, see, ante, § 290. Wyo. 358, 110 Am. St. Rep. 1001, 80 Pac. 151; Shepard v. Haynes, 45 C. C. A. 271, 104 Fed. 449, 52 2 A s t o personal property, see L. R. A. 675. post, §§ 301, 302. See, also, note, 70 Am. Dec. 67- 3 See, among other cases. Had- 72. ley V. Harris, 48 Kan. 606, 30 Am. 4 See note, 56 Am. St. Rep. 8G2. St. Rep. 323, 17 L. R. A. 703, 29 5 See: Majors v. Cowell, 51 Cal. Pac. 1145; Kneeman v. Stimson, 478; Wilson v. Hefflin, 81 Ind. 35; 32 Minn. 377, 20 N. W. 304; Horn- Stewart v. Wheeling & L. E. R. thai V. Burwell, 109 N. C. 10, 26, Co., 53 Ohio St. 151, 41 N. E. 247; 26 Am. St. Rep. 556, 13 L. R. A. Riitherglen v. Wolf, 1 Hughes 78, 740, 13 S. E. 721; Kanoga v. Taylor, Fed. Cas. No. 212, 175. 39G Ch. XIV.] DILIGENT PROSECUTION NECESSARY. §3U dens, — must prosecute the action continuously to final judgment or decree with all reasonable diligence,^ and some of the cases hold that the prosecution must be ''close and continuous";- because any lack of reasonable dili- gence,^ delay or laches in the prosecution of the action or proceedings which is injurious to others, will deprive such negligent suitor of his lis pendens lien as against a bona fide innocent purchaser for value.* Thus, where the action or proceeding is discontinued by the plaintiff,^ dismissed without prejudice by the court, or otherwise disposed of for any cause except upon the merits, or if the action or proceedings abate by the death of a party,® the lien of the lis pendens is thereby terminated, although in all such cases a new action may be brought, and a person purchasing the property after such discontinu- ance, dismissal, or abatement and before a new action is commenced, the action revived, or a writ of error sued out,^ will take the property discharged of the lien of the lis pendens.^ 1 McGregor v. McGregor, 21 Iowa 441; Watson v. Wilson, 32 Ky. (2 Dana) 406, 26 Am. Dec. 459; Clarkson v. Morgan, 45 Ky. (6 B. Mon.) 441; Hawes v. Orr, 73 Ky. (10 Bush.) 435; Herrington V. Herrington, 27 Mo. 560; Myrick V. Selden, 26 Barb. (N. Y.) 15, 22. 2 Herrington v. McCollum, 73 111. 746, 484; Trimble v. Boothby, 14 Ohio 109, 45 Am. Dec. 626; Fox v. Reeder, 28 Ohio St. 181, 188, 22 Am. Dec. 370. 3 Kentucky rule, however, is that benefit of lis pendens is not lost by a failure to prosecute with even ordinary diligence; that it can be lost by unusual and unreasonable negligence in prosecution, only. — Gossom V. Donaldson, 57 Ky. (18 B. Mon.) 237, 68 Am. Dec. 72. Four years' delay after cause ready for a hearing without press- ing for a decree, held to be un- reasonable negligence in Erham v. Kendrick, 58 Ky. (1 Mete.) 150. 4 Herrington v. McCollum, 73 111. 476, 483; Fox v. Reeder, 28 Ohio St. 181, 22 Am. Rep. 370. 5 Pipe v. Jordan, 22 Colo. 392, 55 Am. St. Rep. 138, 45 Pac. 371. 6 Failure to revive suit for period of a year, on the death of the plaintiff, will entitle a purchaser for value, without notice, to hold the property discharged from the lien of the lis pendens. — Hull v. Deatly, 70 Ky. (7 Bush) 691. 7 Eldridge v. Walker, 80 111. 270. 8 Herrington v. McCollum, 73 111. 476; Eldridge v. Walker, 80 111. 270; Watson v. Wilson, 32 Ky. (2 Dana) 406, 408, 26 Am. Dec. 459; Herrington v. Herrington, 27 Mo. 560; Ludlow v. Kidd, 3 Ohio 541. 397 §§ 315, 316 CODE PLEADING AND PRACTICE. [Pt. I, § 315. Lien of judgment or decree. Where a partj^ having notice of the pendency of a suit to reach the equi- table interests of a judgment debtor in his lands, pur- chases such lands, and enters upon and improves the same, he can not come into equity for relief, to have his improvements discharged from the lien of the decree ren- dered against the land.^ It can not be said that a case is no longer lis pendens, after a decree and sale, and a con- veyance executed because a court of chancery is not functus officio until the decree is executed by delivery of possession.- <^ 316. Operation and effect — Purchaser pendente LITE. A purchaser pendente lite takes the property sub- ject to all the equities against the party under whom he claims.^ One who takes an assignment as indemnity against a precedent liability is not a purchaser within the meaning of the statute requiring notice of the pendency of the suit to be filed.- One who purchases land pending an action to foreclose a mortgage on it, or after final judgment, with notice of the pending action, or of the judgment, is bound by the judgment.^ If no notice of lis pendens has been filed, and he purchases without notice after entry of default, but before final judgment, he is not bound by the judgment, even if a final judgment gives constructive notice to parties dealing with the subject- matter, and a second purchaser is in no worse position 1 Patterson v. Brown, 32 N. Y. not mentioned in the pleadings or 81. judgment. — St. John v. Strauss, 60 See, also, post, § 317. Kan. 136, 55 Pac. 845. 2 Jackson v. Warren, 32 111. 931. 2 Leavitt v. Tylee, 1 Sandf. Ch. 1 See: Abbott v. Seventy-Six (N. Y.) 207. Land & Water Co., 6 Cal. Unrep. 3 H i b e r n i a Sav. & L. Soc. v. 25, 118 Pac. 425; Smith v. Kimball, Cochran, 141 Cal. 653, 75 Pac. 315; 36 Kan. 474, 13 Pac. 801; McPher- Atchison County Commrs. v. Lips, son V. H ousel, 13 N. J. Eq. (2 69 Kan. 252, 76 Pac. 851. Beas.) 299. Lien created by contract prior See, also, post, § 317, footnote 1. to mortgage, owner of contract Creditors' suit to subject prop- not being party to foreclosure, erty to payment of judgment, lis not affected. — Beggs v. Hoffman, pendens does not extend to claims 60 Wash. 495, 111 Pac. 576. 398 Ch. XIV.] PURCHASER BOUND BY DECREE. § 317 than his grantor.'* An action is pending after default and until final judgment is entered. But a purchaser with notice occupies the same position as his grantor in refer- ence to the issuance of a writ of assistance to the pur- chaser under the decree.^ ^ 317. Purchaser bound by decree. A person pur- chasing during the litigation, a notice of lis pendens being on file, is bound by the decree in such suit.^ But it does hot apply to one whose interest subsisted before the suit was commenced, and who might have been an original party.- A purchaser of mortgaged premises who neglects to have his deed recorded until after the filing of the lis pendens for the foreclosure of the mortgage is precluded from asserting title under it as against the purchaser at the foreclosure sale.=* The record of a chancery suit wherein a conveyance of land is decreed is not construc- tive notice, binding upon subsequent purchasers from the party decreed to convey, until after it has been recorded in the county where the land is situated.'' i Abadie v. Lohero, 36 Cal. 390. N. J. Eq. 531; Hopkins v. McLaren, ■-.Montgomery v. Byers, 21 Cal. 4 Cow. (N. Y.) 667; Parks v. Jack- j^QY son ex dem. Hendricks, 11 Wend. As to purchaser with notice, see, (N. Y.) 442, 25 Am. Dec. 656; Skeel ante, § 297. v. Sparker, 8 Paige Ch. (N. Y.) 1 Calderwood v. Trevis, 23 Cal. 182; Chapman v. West, 17 N. Y. 335; Hurlbutt v. Butenop, 27 Cal. 125, affirming 10 How. Pr. 367; 50; Horn v. Jones, 28 Cal. 194; L e i t c h v. Wells, 48 N. Y. 585; Sharp V. Lumley, 34 Cal. 611, 615; Craig v. Ward, 1 Abb. App. Dec. Amador Canal & M i n. Co. v. (N. Y.) 454, 3 Keyes 387, 3 Abb. Mitchell, 59 Cal. 168, 178; McNa- Pr. N. S. 235. See Noyse v. Craw- ma ra V. Oakland Building & L. ford, 118 Iowa 15, 96 Am. St. Rep. Assoc, 132 Cal. 247, 249, 64 Pac. 363, 91 N. W. 799. 277 (applying same rule to person In action of trespass between acquiring homestead); Zeiter v. grantor and another, a purchaser Bowman, 16 Barb. (N. Y.) 133; pendente lite is not bound by the Griswold V. Miller, 15 Barb. (N.Y.) j u d g m e n t.— Haile v. Ano, 136 520; Cleveland v. Bocrum, 23 Barb. N. Y. 569, 32 Am. St. Rep. 764, 32 (N. Y.) 201, 3 Abb. Pr. 294; af- N. E. 1068. firmed, 27 Barb. 252, 24 N. Y. 613. 3 Ostrom v. McCann, 21 How. See, also, ante, § 816, footnote 1. Pr. (N. Y.) 431. •2 See: Hunt v. Haven, 52 N. H. 4 R o s s e r v. Bingham, 17 Ind. 16 2; Haughraout v. Murphy, 2 2 542. 309 CHAPTER XV. PLACE OF TRIAL AS DETEEMINED BY SUBJECT OF ACTION AND NATURE OF PROCEEDINGS. § 318. In general. § 319. In any county when. § 320. Local and transitory actions — In general. § 321. Local actions. § 322. Transitory actions. § 323. Actions affecting real property — In general. § 324. Illustrations of local actions. § 325. Action to declare deed absolute mortgage : Redemp- tion. § 326. Action to reform contract for sale of land. § 327. Action for specific performance. § 328. Action to enforce trust in land. § 329. Action to foreclose lien on land. § 330. Action for trespass on land. § 331. To enjoin threatened trespass. § 332. Suit for use and occupation. § 333. Joinder of real and personal actions. § 334. Action affecting personalty. § 335. Actions on contracts — In general. § 336. Under statute. § 337. In California. § 338. Actions for tort — In general. § 339. Under statute. § 340. Actions for penalties or forfeitures — In general. § 341. Actions to which applicable. § 342. Exceptions to the rule. § 343. Actions by and against persons in representative capac- ity — In general. § 344. In California. § 345. Actions against public officers. § 346. Actions against cities, counties or towns — In general. § 347. In California. 400 ch. XV.] PLACE OF TRIAL IN GENER.VL. § 318 § 348. Actions made local to place of accrual. § 349. Actions to be tried where subject-matter situated — In general. § 350. What actions included. § 351. Ancillary and incidental actions. § 352. Right to sue in more than one county — Election. § 353. Joinder of causes suable in different counties. § 354. Laying venue. § 355. Objections and exceptions — In general. § 356. In California. § 357. Estoppel and waiver. § 318. In general. In California, under the Code of Civil Procedure, actions must be tried in a particular county or district, having reference: (1) to the place where the subject-matter in controversy is situated; (2) to the place where the cause of action arose ; or (3) to the place where the parties to the action reside, according to the nature of the questions involved. Thus, real ac- tions, or actions affecting real property, have a tendency to a fixed and local jurisdiction; while personal actions are transitory in their character.^ In the United States generally, and particularly in California, the distinction between local and transitory actions, so far as any conse- quence attends it, depends entirely upon statutory law, and does not coincide with or depend upon the distinction between actions in rem and actions in personam.- Where the action is brought in the wrong county the remedy is not by writ of prohibition, but by motion for change of venue.^ The nature of an action, as affecting the place of 1 As to local and transitory bition is always denied. — I^evy v. actions, see, post, §§320-322. Wilson, 69 Cal. 105, 10 Pac. 272; 2 Fresno Nat. Bank v. Superior Murphy v. Superior Court, 84 Cal. Court, 83 Cal. 491, 500, 24 Pac. 157. 592, 598, 24 Pac. 310; Strouse v. 3 Fresno Nat. Bank v. Superior Police Court, 85 Cal. 49, 24 Pac. Court, 83 Cal. 491, 24 Pac. 157. 747; Agassiz v. Superior Court, 90 As to change of venue or place Cal. 101, 104, 27 Pac. 49; State v. of trial, see, post, chapter XVII. Rightor, 44 La. Ann. 298, 10 So. Plain, speedy and adequate 174; State v. Cory, 35 Minn. 178. remedy at law, a writ of prohi- 28 N. W. 217; Walcott v. Wells, I Code PI. and Pr.— 26 4OI §§319,320 CODE PLEADING AND PRACTICE. [^t.l, trial, must be determined from the allegations in the com- plaint and the nature of the judgment that may be ren- dered on default."* In a case of doubt, the statute should be liberally construed in favor of the venue in which the action is brought.^ § 319. In any county when. In California, an action may be brought and the cause tried in any comity, whether the proper county for the trial thereof or not, unless the defendant, at the time he answ^ers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.^ § 320. Local, and transitory actions — In general. We have already seen that the nature of a cause of action, and whether the action is local or transitory, is to be determined from the allegations in the complaint and the nature of the judgment that may be rendered on default,^ not from any amendment to the complaint which the plain- tiff may intend to make.- Thus, in an action to recover damages for injuries to an irrigation canal,^ w^here there is nothing in the complaint to indicate that the defendant claims any right to or interest in the title to the canal or easement, is not a local action, within the meaning of the 21 Nev. 47, 38 Am. St. Rep. 478, transitory actions, see note, 22 9 L. R. A. 59, 24 Pac. 367; Braud- Am. St. Rep. 22. lacht, Ex parte, 2 Hill (N. Y.) 357, Court considers not only the 38 Am. Dec. 593. prajer for relief in the complaint 4 Smith V. Smith, 4 Cal. Unrep. and answer, but also the terms 860, 38 Pac. 43; McFarland V. Mar- ot the decree, in determining tin,' 144 Cal. 771, 78 Pac. 239. whether the action is, in effect, a real action, quieting title to land, or enforcing a lien thereon, which must be brought in the county in 1 See Kerr's Cyc. Cal. Code Civ. ^^^^.^^ ^^^ ^^^^ .^ situated.- Proc. 2d ed., §396; Consolidated ^^^^^^^ ^ ggj,_ ^25 Cal. 309, 57 Supp. 1906-1913, p. 1427. p^^ J0j2. As to estoppel and waiver by o Smith v. Smith, 4 Cal. Unrep. failure to object, see, post, § 357. ggo^ 35 pac. 43. 1 See, ante, § 318, footnote 4. 3 As to actions for tort, see, post. As to what are local and what §§ 338, 339. 402 r. Carr v. Remele, 47 Wash. 380. 133 Pac. 593. eh. X^^] LOCAL AND TRANSITORY ACTIONS. § 320 mandatory provision of the California constitution, arti- cle VI, section 5,^ and may be commenced in any county of the state in which the offending corporation has its principal office and place of business, notwithstanding the fact that the injury complained of occurred in another county;^ and the fact that the answer of the defendant corporation makes it appear that the trial of the action will involve the question of the title to or the possession of real property will not divest the superior court of the county in which the action is commenced of jurisdiction to try the cause.^ But it has been said obiter, — for the point was not before the court, — that in such a case, where the defendant is a natural person instead of a corporation, he may have the action transferred to the county in which the land is situated."^ On the other hand, an action to recover damages for the negligent destruction by fire of buildings belonging to the plaintiff, is a purely local action ''for injuries to real property," wdthin the mean- ing of the provisions of the California Code of Civil Pro- cedure,^ because such damages could not be incurred except on the land where the buildings were situated ;'■ the removal of the buildings from the land by tire could not render the action transitory,^" In the language of Mr. Chief Justice Marshall, ''actions are deemed transi- tory w^iere the transactions upon which they are founded might have taken place anywhere, but are local when their cause is essentially local. "^^ But in the case of an action 4 Henning's Gen. Laws of Call- Yacht Club v. Sausalito Bay Water fornia, 2d ed., p. 62. Co., 98 Cal. 487, 33 Pac. 322. 5 Miller & Lux v. Kern County « See Kerr's Cyc. Cal. Code Civ. Land Co., 140 Cal. 132, 134, 73 Pac. Proc, 2d ed., § 392; Consolidated 836. Sec Miller & Lux v. Kern Supp. 190G-1913, p. 1422. County Land Co., 134 Cal. 586, 66 9 Las Animas & San Joaquin Pac. 856. Land Co. v. Fatjo, 9 Cal. App. 319, Id. 99 Pac. 393. 7 Miller & Lux v. Kern County lo Id., distinguishing McGonigle Land Co., 140 Cal. 132, 135, 73 Pac. v. Atchison, 33 Kan. 726, 7 Pac. 836, distinguishing Fritts v. Camp, 550. 94 Cal. 393, 29 Pac. 867; Pacific u Livingston v. Jefferson, 1 403 § 321 CODE PLEADING AND PRACTICE. [Pt. I, for damages for a trespass upon real estate/- whether the action is local or transitory depends upon whether the trespass is viewed as relating to the real estate, or simply as affording a personal remedy to the plaintiff. ^^ §321. Local ACTIONS. Under statutory provisions in California, — and the same is true in all the other juris- dictions, — certain actions must be brought and tried in the county specified in the statute. Thus, it is specifically provided that all actions affecting the title to or the pos- session of real property, must be brought and tried in the county in which the lands are situated,^ and the only exception to the statutory rule is where the action is for damages to real property, committed by a corporation, in which case the action may be brought and the cause tried in the coimty in which the corporation has its principal office and place of business, where the complaint does not disclose that the defendant corporation claims any right or interest in the land ;- and in certain specified cases the action is to be brought and the trial had in the county in which the subject-matter of the action is located,-' or where the cause of action arose,^ and the like. Tliis is purely matter of statutory provisions and interpretation. It has been said that an action to rescind a contract for and the exchange of lands, which are situated in difloicnt counties, while local, is no more local to the one county than the other, but should be brought and tried in the Brock. 203, 209, Fed. Cas. No. 8411. L. R. A. 779, 16 Atl. 651. See Pey- See Ophir Silver M i n. Co. v. ton v. Desmond, 63 C. C. A. 651, Superior Court, 147 Cal. 467, 473, 129 Fed. 4. 3 Ann. Cas. 340, 82 Pac. 70. i As to actions affecting land, See, also, Westlake's Private see, post, §323. International Law (3d ed.), p. 213. 2 See, ante, § 320, footnotes 4 et 12 As to trespass upon real seq. estate, see, post, §§ 330-332. 3 State ex rel. Mackey v. Dis- 13 See Huntington v. Atrill, 146 trict Court, 40 Mont. 359, 135 Am. U. S. 657, 669, 36 L. Ed. 1123, 13 St. Rep. 622, 106 Pac. 1098. Sup. Ct. Rep. 224, reversing 70 See, also, post, §§ 349, 350. Md. 191, 14 Am. St. Rep. 344, 2 4 See, post, § 329: 404 ell. XV.] TRANSITORY ACTIONS. § 322 county in wliicli the land is situated which the plaintiff seeks to recover.^ In Kansas, for example, under the provisions of the statute,^ requiring that specified actions "must" be and that other actions ''may" be brought in designated coun- ties, and that all other actions must be brought in the county in which the defendant resides, or in which lie may be served with process, the court, interpreting the statutory provisions, hold that the actions designated which **may" be brought in designated counties, does not render them ''local actions."^ ^ 322. Transitory actions. Transitory actions may be brought wherever service of process can be made upon the defendant.^ As to what constitute transitory actions, the same as to wliat are local actions, is purely a matter of statutory provision and interpretation.- Some ilUistrations as to what are transitory actions are selected at random, without any effort to be exhaustive. An action against an agent for moneys had and received, is a transi- tory action, and hence may be brought and tried in any jurisdiction in whicli the defendant may be served ^^dth process.^ An action to recover damages for a personal injury, is transitory, not local.^ An action for the breach of an executory contract, both during the life and after the death of the promisor, is transitory, and may be main- tained against the administrator of a deceased promisor without reference to where the contract was entered into.^ 5 Wilson V. Mills, 92 Wash. 105, 2 See, ante, § 321. Ann. Gas. 1918C, 891, 158 Pac. 1008. 3 Sandoval v. Randolph, 11 Ariz. r. Kan. Code Civ. Proc, §51; 371^ 95 p^c. 119; affirmed, 222 Gen. Stats. 1909, § 5644. ^ g ^g^^ gg l. Ed. 142, 32 Sup. Ct. 7 Henry v. Missouri, K. & T. R. ^ ^^ Co., 92 Kan. 1017, 1020, 142 Pac. ., ^„r, 4 Ramaswamy v. Hammond '1 Henry v. Missouri, K. & T. R. Lumber Co., 78 Ore. 407, 152 Pac. Co., 92 Kan. 1017, 1020, 142 Pac. 223. 972, 973; State ex rel. Mackey v. o McCann v. Pennie, 100 Cal. District Court, 40 Mont. 359, 135 547, 35 Pac. 158. Am. St. Rep. 622, 106 Pac. 1098. 405 §322 CODE PLEADING AND PRACTICE. [Pt. I, A civil action for libel is transitory,^ and may be brought and tried in any jurisdiction in which the libel was circu- lated, regardless of where the libel was written or printed ;" and the same is true of a criminal action for libel, in the absence of restrictive legislation.^ An injunc- tion to prevent the closing of an under-ground railroad crossing, operating in personam and not in rem, is a transitor\^ action.^ Proceedings in insolvency against a corporation, are transitory, being in the nature of a quo warranto, and may be brought and tried either in the county in which the plaintiff resides, or in the county in which the corporation has its principal office and place of business. ^^ An action for the enforcement of a trust, and for an accounting thereunder, is a transitory one, irre- spective of the fact that the action will take effect upon real property.^ ^ So, an action for the specific perform- ance of a contract to convey land is held to be transitory. 6 Root V. King, 4 Cow. (N. Y.) 403; Duryee v. Orcutt, 9 Johns. (N. Y.) 248; Woolworth v. Klock, 92 App. Div. (N. Y.) 142, 86 N. Y. Supp. 1111. 7 Clinton v. Croswell, 2 Cai. (N. Y.) 245, 1 Cal. & C. Cas. 398, 2 Am. Dec. 235; Nicholson v. Loth- rop, 3 Johns. (N. Y.) 139; Vitolo V. Bee Publishing Co., 66 App. Div. (N. Y.) 582, 10 N. Y. Ann. Cas. 337, 73 N. Y. Supp. 273; Belo v. Wren, 63 Tex. 686; Bailey v. Chapman, 15 Tex. Civ. App. 240, 38 S. W. 544. See, also, note 9 Ann. Cas. 383. 8 See Baker v. State, 97 Ga. 452, 25 S. E. 341; Com. v. Balding, 20 Mass. (3 Pick.) 304, 15 Am. Dec. 214; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89; Mills v. State, 18 Neb. 575, 26 N. W. 354; State ex rel. Taubman v. Houston, 19 S. D. 644, 117 Am. St. Rep. 970, 9 Ann. Cas. 381, 104 X. W. 451; Belo v. Wren, 63 Tex. 686; Bailey v. Chap- man, 15 Tex. Civ. App. 240, 38 S. W. 544; Haskell v. Bailey, 25 U. S. App. 99, 11 C. C. A. 476, 63 Fed. 873. 9 Chicago, R. I. & P. R. Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595. 10 State ex rel. Parsons Min. Co. v. McClure, 17 N. M. 694, Ann. Cas. 1915B, 1110, 47 L. R. A. (N. S.) 744, 133 Pac. 1063 (under Comp. Laws 1897, §2950). iiLe Breton v. Superior Court, 66 Cal. 27, 4 Pac. 777; Bell v. Fludd, 28 S. C. 313, 5 S. E. 810; Reese v. Muran, 5 Wash. 373, 31 Pac. 1027; State ex rel. Campbell V. Superior Court, 7 Wash. 306, 34 Pac. 1103; State ex rel. Scougale V. Superior Court, 55 Wash. 328, 330, 133 Am. St. * Rep. 1030, 104 Pac. 607. Action to enforce trust on min- ing claim, the rule is different, and the action must be brought in the 406 ell. XV.] ACTIONS AFFECTING REALTY. § 323 and need not be brought in the county where the land is situated;^- e. g., to compel the conveyance of a mine.^^ The same is true of an action in the nature of a creditor's bill, brought to set aside a conveyance made by an execu- tion debtor on the ground of fraud ;^^ and of an action for an accounting between a mortgagor and a mortgagee in possession, the property mortgaged being situated out of the state. ^^ § 323. Actions affecting real property — In general. The California constitution^ and statutes provide that all actions for the recovery of real property, or for the pos- session thereof, or for an interest therein, or for the determination of such rights, or for the foreclosure of liens thereon," or for injuries to the possession of or to real property by trespass^ or otherwise, or to quiet the title thereto, must be brought in the county in which such real property or a portion thereof is situated.* In all the other jurisdictions there are similar statutes. In deter- mining whether an action is, in effect, a real action and local, which must be brought in the county in which the land or some portion thereof is situated, the court vdW consider, not only the complaint^ and the answer, but also the terms of the decree to be entered.^ It is to be noted, county in which the mining claim 2 See, post, § 329. See Staaclte is situated.— McFarland v. Martin, v. Bell, 125 Cal. 309, 57 Pac. 1012. 144 Cal. 771, 775, 78 Pac. 239. 3 See, post, §§ 330-332. 12 Morgan v. Bell, 3 Wash. 554, 4 See Kerr's Cyc. Cal. Code Civ. 16 L. R. A. 614, 28 Pac. 925. Proc. 2d ed., p. 392; Consolidated 13 Wood V. Thompson, 5 Cal. Supp. 1906-1913, p. 1422. App. 248, 90 Pac. 39. •"» See, ante, § 318. footnote 4. 14 Beach V. Hodgdon. 66 Cal.187, c Staacke v. Bell, 125 Cal. 309, 5 Pac. 77; Woodbury v. Nevada 314, 57 Pac. 1012. See Fritts v. Southern R. Co., 120 Cal. 463, 466, Camp, 94 Cal. 393, 29 Pac. 867; 52 Pac. 730. Pacific Yacht Club v. Sausalito 15 Peninsular Trading & Fishing Bay Water Co., 98 Cal. 4S7, 489. Co. v. Pacific Steam Whaling Co., 33 Pac. 322; Miller & Lux v. Kern 123 Cal. 689, 697. 56 Pac. 604. County Land Co., 140 Cal. 132, 136. 1 Cal. Const. 1879. art. VI, § 5. 73 Bac. 836. Ilenning's Gen. Laws, 2d ed., p. 62. See, also, ante, § 318, footnote 4. 407 §324 CODE PLEADING AND PRACTICE. [Pt. T, however, that the California constitution does not pro- hibit the trial elsewhere if the action is commenced in the proper county, notwithstanding the provisions of section three hundred and ninety-two of the Code of Civil Pro- cedure.'^ <^324. Illustrations of local actions. Among the actions held to be local actions by reason of their affecting the title to or interests in or the possession of real property, are the following : An action by the owners of an undivided one-half of real property to have an administrator's sale of and deed to the other undivided one-half set aside as fraudulent, and the title reinvested in the former owners ;^ action for injuries to land,^ or to 7 See Hancock v. Burton, 61 Cal. 70; Warner v. Warner, 100 Cal. 11, 15, 34 Pac. 523; Duffy v. Duffy, 104 Cal. 602, 38 Pac. 443; Staacke V. Bell, 125 Cal. 309, 314, &? Pac. 1012. 1 Sloss V. De Toro, 77 Cal. 129, 19 Pac. 233. Distinguished in Cochrane v. McDonald, 4 Cof. Prob. (Cal.) 535, 544, refusing change of venue of action based on collusion and fraud to county in which land sit- uated. Action to set aside deficiency judgment and levy on land is prop- erly brought in the county where the land lies. — Herd v. Tuohy, 133 Cal. 55, 60, 65 Pac. 139. 2 McLeod v. Ellis, 2 Wash. 117, 26 Pac. 76. See Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408; People's Ditch Co. v. Kings River & Fresno Canal Co. (Cal.), 2 Pac. 45; Miller & Lux. v. Kern County Land Co., 6Cal.Unrep.684, 65 Pac. 312; affirmed, 134 Cal. 586, 66 Pac. 856; Las Animas & San Joaquin Land Co. v. Fatjo, 9 Cal. App. 318, 321, 99 Pac. 393, 395; Perry v. Seaboard Air Line R. Co., 153 N. C. 117, 68 S. E. 1060. Destruction of building by fire an injury to real property and ac- tion therefor must be brought in the county where the land is situ- ated. — Las Animas & San Joaquin Land Co. v. Fatjo, 9 Cal. App. 318, 99 Pac. 393. Corporation defendant sued in county where it had its principal office and place of business, alleg- ing injury to land, refusal to change venue to county in which land injured situated, held to be error in Miller & Lux v. Kern County Land Co., 6 Cal. Unrep. 684, 65 Pac. 312; affirmed, 134 Cal. 586, 66 Pac. 856. Diversion'of water in violation of statute, where it involves in- jury to real property, is local to the county in which the land is situated. — McClatchy v. Laguna Lands, Limited, 32 Cal. App. 718, 164 Pac. 41. Flooding land, action for is local. — Morris v. Missouri Pac. R. Co., 408 Ch. XV.] LOCAL ACTIONS WHAT ARE. § 324 restrain threatened injuries thereto f action for reforma- tion of contract for sale and conveyance of land,* though the authorities are divided as to an action for the specific performance of such a contract;^ action on contract for the removal of standing timber f action to abate a nuis- ance on land ;'^ action to condemn lands, under the power of eminent domain, for the use of a railroad or other public purpose, although defendant resides elsewhere;^ action to dissolve a mining copartnership, where the de- termination of the respective estates or interests of the copartners in the mining claim is involved in the action;** action to determine the plaintiff's right to the use of the water of a spring on defendant's land, and to maintain pipes to conduct such water in the enjoyment of its use ;^'^ action to enforce trust in land and to compel a conveyance thereof, held local by some authorities and transitory by others ;^^ action to foreclose vendor's lien on real prop- erty ;^2 action to have deed absolute on its face declared a mortgage, and to redeem therefrom ;^^ action to quiet 78 Tex. 17, 22 Am. St. Rep. 17, 9 Bloomfield Gravel Min. Co., 66 Cal. L. R. A. 349, 14 S. W. 228. 343, 5 Pac. 507. 3 Drinkhouse v. Spring Valley s California So. R. Co. v. South- Water Works, 80 Cal. 308, 22 Pac. ern Pac. R. Co., 65 Cal. 409, 4 Pac. 252; Last Chance Water Ditch Co. 388; Santa Rosa, City of, v. Foun- V. Emigrant Ditch Co., 129 Cal. tain Water Co., 138 Cal. 579, 71 277, 61 Pac. 960. See Cox v. Rail- Pac. 1123, 1136. way Co., 55 Ark. 454, 459, 18 S. W. 9 Clark v. Brown, 83 Cal. 181, 23 630. Pac. 289. As to trespass upon real prop- lo Pacific Yacht Club v. Sausa- erty and injunction to prevent a lito Bay Water Co., 98 Cal. 487, 33 threatened trespass, see, post, Pac. 322. §§330, 331. n As to action to enforce trust 4 As to action to reform con- in and compel conveyance of land, tract for sale of land, see, post, see, post, § 328. §326. i-'Urton v. Woolsey, 87 Cal. 38, r> As to action to compel specific 25 Pac. 154; Southern Pac. R. Co. performance of contract to sell v. Pixley, 103 Cal. 118, 37 Pac. 194. land, see, post, § 327. I't As to action to have deed de- •■> Seymour v. La Furgey, 47 dared a mortgage and to redeem Wash. 450, 92 Pac. 267. therefrom, or to redeem from a 7 Marysville, City of, v. North mortgage, see, post, § 325. 409 U24 CODE PLEADING AND PRACTICE. [Ft. I. title to real estate ;^^ action to set aside a deed by a hus- band to his wife as voluntary and in fraud of creditors, is properly brought and tried in the county in which the land is situated, although the wife showed that the consid- eration was the conveyance by her of lands situated in another county, the court having jurisdiction to determine whether the conveyance was in fraud of creditors ;^^ but it has been said that an action to set aside a decree pro- cured by false testimony and concealment of facts, is properly brought and tried in the county in which the decree was thus procured, notwithstanding the fact that the land affected by such decree is located in another county,'^ under the Utah constitution^^ requiring "all civil and criminal business arising in any county to be tried in such county, unless a change of venue be taken.'"'' And it is held that an action to foreclose a logger's lien is properly brought in the county where the logs were cut and the lien notice filed, regardless of the fact that the logs are in another county.^^ of Seattle, 16 Wash. 399, 47 Pac. 14 Fritts V. Camp, 94 Cal. 393, 29 Pac. 867; Pacific Yacht Club v. Sausalito Bay Water Co., 98 Cal. 487, 33 Pac. 322; Grangers' Bank V. Superior Court, 4 Cal. Unrep. 130, 33 Pac. 1096. Action to cancel contract of pur- chase for nonpayment must be commenced in county where land situated. — Robinson v. Williams, 12 Cal. App. 519, 107 Pac. 706. Action to quiet title to lands in A county against persons claiming a title or interest therein, and also in B county against persons claiming no title or interest in the lands in A county, court is without jurisdiction as to the lands in B county. — Jones v. Redemption & Investment Co., 79 Kan. 477, 99 Pac. 1129. 15 Carkeek v. Boston Nat. Bank 16 Mosby V. Gisbom, 17 Utah 257, 54 Pac. 121. 17 Utah Const., art. VIII, § 5. 18 "Civil business," as used in the constitution, means such civil business as amounts to a cause of action, as the law defines a cause of action. "When Gisborn's false representations, his concealment, and his false testimony resulted in preventing Mosby's title from being set up, and the evidence that would have established it, his right of action arose, and, the de- cree being rendered in Salt Lake County, Mosby's right of action must have arisen in that county." —Mosby v. Gisborn, 17 Utah 257, 54 Pac. 121. I'j Overbeck v. Calligan, 6 Wash. 342, 33 Pac. 825. 410 ell. XV.] LOCAL ACTIONS — WPIAT ARE. § 325 § 325. Action to declaee deed absolute mortgage : Redemption. An action to have a deed absolute on its face adjudged and declared to be a mortgage, to be per- mitted to redeem, and to be let into possession, is a local action which must be commenced in the county in which the land affected is situated.^ Thus, although a corpora- tion is usually to be sued in the county in which it has its principal office and place of business, yet in an action against a corporation to have a deed absolute declared a mortgage, and to be permitted to redeem from the same, the action being to determine a right or interest in real property, is properly brought in the county in which the land is situated, although that county is not the one in which the principal office and place of business of the corporation is located. - Redemption from mortgage being the object of the action, the rule is different, and being transitory the ac- tion must be brought in the county in which the defendant resides.^ The reason is because the action can not be said to affect the real property, because it acts purely in personam, the object of the action being to compel the mortgagee to accept a certain sum of money, the effect of which is to release the mortgage-claim upon the property,^ and it is the duty of the mortgagor wishing to redeem to seek out the mortgagee, or the party holding the lien on the land, in the forum where jurisdiction in personam can be obtaine 331. To ENJOIN THREATENED TEESPASS. An action to enjoin a threatened trespass upon land, is like- wise a local action, and must be brought in the county in which the land is located.^ Thus, a mining claim being real estate as to the venue of all actions involving the title to or possession of the same,^ an action to enjoin a threat- ened subterranean trespass thereon by mining upon the (lip of a quartz ledge, upon land in the possession of the defendant, and to recover the value of minerals thus re- moved from such ledge, where a reasonable construction of the latter element in the action involves the determina- tion of the right in and to the realty in question, is a local action which must be brought and prosecuted in the county in which the mining claim is located.* <^ 332. Suit for use and occupation. The general doctrine is that in case of a trespass upon land the owner thereof may waive the tort and bring an action for use and occupation. An action for use and occupation of land, the judgment operating in personam, is a transi- 3 Jemez Land Co. v. Garcia, 15 i Ophir Silver Min. Co. v. Su- N M 316, 107 Pac. 683. perior Court, 147 Cal. 467, 3 Ann. 4 Powell V.Cheshire. 70 Ga. 357, Cas. 340, 82 Pac 70 ,„„ ^ ,r J ■- See, ante, § 326, footnotes 4 48 Am. Rep. 572; Duncan v. Yordy, _, . ' and 5. 27 Kan. 348. 3 q^^j^Jj, giiyej. ^^^ q^ y g^. 5 Id. perior Court. 147 Cal. 467, 3 Ann. « Duncan v. Yordy. 27 Kan. 348. Cas. 340, 82 Pac. 70. I Code PI. and Pr.— 27 45^7 § 333 CODE PLEADING AND PRACTICE. [Pt. I, tory action, notw-ithstanding the fact that the defendant, in his answer, sets up title to the premises, under a stat- ute^ providing that one obtaining possession of land with^ out the consent of the owner shall be deemed a tenant at sufferance and liable for a reasonable rent for the use thereof ;- and in the absence of such a statute, the action is founded upon an implied contract to pay rent, and is for that reason transitory, being founded upon privity of contract and not upon privity of estate.^ In Minnesota, however, it is held that in case of a tres- pass upon land, the owner thereof can not waive the tort and sue on implied contract for use and occupation, or for rent due from the defendant as a tenant.* § 333. Joinder of real and personal actions. The joinder of real and personal actions in the same complaint has the effect of destroying the local character of the real action, and of making of the whole a transitory action, which must be brought and tried in the county of the defendant's residence.^ Thus, an action to establish a trust in real and personal property is transitory, because the judgment acts in personam;^ an action to rescind contract for purchase of corporate stock, and to enjoin selling real property under trust deed, is transitory, and must be tried in county in which defendant resides.^ But in order that the personal action shall destroy the local character of the real action it must be an essential, and 1 As in Washington, see Rem. & 4 Commonwealth Title Ins. & Bal. Code, § 8805. Trust Co. v. Dokko, 71 Minn. 533, 2 Sheppard v. Coeur d'Alene 74 N. W. 891; McLane v. Kelly, 72 Lumber Co., 62 Wash. 12. Ann. Minn. 395, 75 N. W. 601. Cas. 1912C, 909, 44 L. R. A. (N. S.) i Smith v. Smith, 88 Cal. 572, 26 267, 112 Pac. 932. Pac. 356. 3 Low V. Hallett, 3 Cai. (N. Y.) 2 State ex rel. Scougale v. Su- 82, 1 Cal. & C. Cas. 432; New York perior Court, 55 Wash. 328. 133 City V. Dawson, 2 Johns. Cas. Am. St. Rep. 1030, 104 Pac. 607. (N. Y.) 335; Henwood v. Cheese- " Nason v. Feldhusen, 34 Cal. man, 3 Serg. & R. (Pa.) 500. App. 789, 168 Pac. 1162. 418 Ch. XV.] ACTIONS AFFECTING PERSONALTY, § ;53-i not merely an incidental, feature of the action.^ Thus, it has been held that an action to cancel a contract foi- the purchase of real estate, because of the nonpayment of the installments of the purchase price as agreed, to de- clare the payments made under the contract forfeited, and to quiet the title of the vendor in the land, does not con- stitute a joinder of real and personal actions.^ And an action to enforce a trust in land, and for an accounting of the amount due the plaintiff, where the complaint does not allege that anything is due the plaintiff, and does not ask for a personal judgment, does not constitute a joinder of a real and a personal action," but is to be regarded as an action having for its sole object the establishment of a trust in lands, the accounting asked for being merely incidental to the action, which necessarily involved the ascertainment of the amount due to the plaintiff, if any- thing.'^ § 334. Action affecting personalty. Where an action affects the title to or the right to the possession of per- sonal property, the venue is the county in which the prop- erty is located ; but where the title to or the right to the possession is only incidentally involved, the venue will be the county of the residence of the defendant. Thus,. an action by a creditor against a municipal corporation to prevent it from applying a designated fund, on deposit in bank, to a purpose other than that for which it is alleged to have been created, until the plaintiff's claims are adjusted and paid, involves a question as to the title to personal property, and is local to the county in which the bank in which the fund is deposited is located.^ But in a case where property is sold under an agreement that 4 See, ante, § 327. 7 id.; Green v. Brooks, SI Cal. •■■' Robinson v. Williams, 12 Cal. 328, 22 Pac. 849. App. 520, 107 Pac. 707. i North Yakima, City of, v. Su- fi Hannah v. Canty, 1 Cal. App. perior Court, 4 Wash. 655, 30 Pac. 225, 81 Pac. 1035. 1053 (under § 158 Wash. Code Proc). 419 § 334 CODE PLEADING AND PRACTICE. [Pt. I, the proceeds shall be deposited in bank for the purpose of satisfying the claims of A and other creditors, an action in equity by A to satisfy his claim out of the deposit, in which action the owner of the property sold and the other creditors are made parties defendant, is a personal action and not an action against the deposit, and for that reason is not required to be brought in the county in which the proceeds are deposited in bank, but may be brought in any county in which one or more of the defendants reside.- In a case where the only cause of action attempted to be stated is against a savings bank as pledgee and another as pledgor of certain shares of the capital stock of a mining corporation, and it is sought to compel the savings bank to deliver to the plaintiff corporation the shares of its stock so pledged, there is no controversy over real property, and the judgment operating in personam, the action is transitory, and should be brought in the county of the residence of the pledgor, or removed there on application.^ In determining the cause of action to be tried in such a case and the proper venue of the action, the court mil consider the complaint only,'* and the effect of the complaint in this respect can not be varied either by the affidavit of merits filed in support of a motion for a change of venue or by a verified answer f these can be considered as affecting the question of residence only.^ It has been said that an action to have collateral, including a note and mortgage upon real property, sold and the proceeds applied upon the note secured by such collateral, is not an action to foreclose the mortgage, and is properly 2 Kean v. Rogers (Iowa), 118 plaintiff is no part of the cause of N. W. 515. action, and can not be considered 3 Eddy V. Houghton, 6 Cal. App. in determining the question of the 85, 91 Pac. 397. proper venue. — Eddy v. Houghton, i See, ante, § 318, footnote 4. 6 Cal. App. 85, 91 Pac. 397. Probative facts stated in the 5 Eddy v. Houghton, 6 Cal. App. complaint anticipating the reason 85, 91 Pac. 397. for the refusal by the savings bank 6 Id.; Quint v. Dimond, 125 Cal. to deliver the pledged stock to the 572, 67 Pac. 1034, 420 eh. XV.] ACTIONS ox CONTRACTS. § 335 brought in the county in which the plaintiff resides.' And an action for an accounting, in which the recovery of the possession of personal propert}' is also demanded, the ownership of the personal property being raised only incidentally, need not be brought in, and the trial should not be removed to, the county in which the personal prop- erty is located.^ <§. 335. Actions on contracts — In general. The general rule, in the absence of a statute governing, is that actions founded upon privity of contract are transitory,^ and may be brought in the county where the defendant resides or in any county in which he can be served with process. Thus, an action upon a contractor's bond is transitory, not local.- A contract creating a personal obligation unconnected with any business transaction in the county will not authorize a suit to be maintained in the county of its creation against a nonresident defendant.'^ An action on an implied contract to pay rent, against a tenant hold- ing over, is to be brought in the county in which the tenant 7 Warren v. Herrington, 171 P. R. Co., 65 Minn. 48, 60 Am. St. N. C. 165, 88 S. E. 139. Rep. 421, 33 L. R. A. 423, 67 N. W. 8 Clow V. McNeill, 167 N. C. 212. ^46. MlSS.-Oliver v. Love, 59 83 S E '08 ^*^^- ^^^' NEB.— McNee v. Sewell, ■ ■ " ■ H Neb. 522, 16 N. W. 827; Insur- 1 KY.-Parish v. Oldham, 26 Ky. ^^^^ ^^ ^^ ^^^,^^ ^^^^.^^ ^ ^j^. (3 J. J. Marsh.) 544; Kendrick v. Li^^ans, 28 Neb. 653, 44 N. W. 991; Wheatley, 33 Ky. (3 Dana) 34; Omaha & R. V. R. Co. v. Brown, Henderson v. Perkins, 94 Ky. 207, 29 Neb. 492, 500, 46 N. W. 39. 21 S. W. 1035; Trimble's Exrx. v. N. H. — Educational Soc. v. Varney, Lebus, 94 Ky. 304, 22 S. W. 329; 54 N. H. 376; Thayer v. Padel- Bullitt V. Eastern Kentucky Land ford, 69 N. H. 301, 41 Atl. 447. Co., 99 Ky. 324, 36 S. W. 16. MD.— VA.— Shaver v. White, 6 Munf. Crook V. Pitcher, 61 Md. 510; Gun- 110, 8 Am. Dec. 730. FED.— Liv- ther V. Dranbauer, 86 Md. 1, 38 ingston v. Jefferson, 1 Brock. 203, Atl. 33. MASS.— Barren v. Benja- Fed. Cas. No. 8411; Mohr & Mohr rain, 15 Mass. 354; Vermont & M. Distilling Co. v. Insurance Co., 12 R. Co. V. Orcutt, 82 Mass. (16 Fed. 474. Gray) 116; Roberts v. Knights, 89 2 State v. Tryholm, 139 Minn. Mass. (7 Allen) 449. MICH.— At- 389, 166 N. W. 533. kins V. Borstler, 46 Mich. 552. 3 Carmichael v. Arms, 51 Ind. MINN.— Little v. Chicago, M. & St. App. 689, 100 N. E. 302. 421 § 336 CODE PLEADING AND PRACTICE. [Pt. I, resides, altliougli the lease under which he entered pro- Added for payment of rent in another county.'* But a con- tract expressly agreeing to pay money at a certain place, lays the venue of an action to recover such money, on a lareach of the contract, in the county in which the payment was to be made.-'^ And the place at which the last act necessary to perfect a contract of sale is performed, has been said to be the place of the completion of the action and the place where the cause of action arises.^ In case of nonresideuce of a party to a contract who is in default in the performance thereof, an action may be brought on the contract in any county in the state, not- withstanding a statutory provision requiring the action to be brought in the county in which the defendant resides."^ § 336. Under statute. Statutes have been passed in many of the jurisdictions^ under which actions on con- tracts, or suits for their breach,^ are to be instituted and tried in the county in which the contract was to be per- formed,^ and this has been said to include implied as Avell 4 Wixom V. Hoar, 158 Iowa 426, 3 COLO.— Brewer v. Gordon, 27 139 N. W. 890. Colo. Ill, 83 Am. St. Rep. 45, 59 5 Parrott v. Peacock Military Pac. 404; Gould v. Mathes, 55 College (Tex. Civ. App.), 180 S. W. Colo. 384, 135 Pac. 780; Maxwell- 132. Chamberlin Motor Co. v. Piatt, 173 Notes payable in A county, but Pac. 867; Montezuma County in case of default to be paid at a Commrs. v. San Miguel County designated place in B county, are Commrs., 3 Colo. App. 137, 32 Pac. ])roperly sued in B county. — New- 346; Wason v. Bigelow, 11 Colo, man v. Buffalo Pitts Co. (Tex. Civ. App. 120, 52 Pac. 636; Peabody v. App.), 160 S. W. 657. Oleson, 15 Colo. App. 346, 62 Pac. c Peters v. Painter Fertilizer 234 ; Coulter v. Bank of Clear Co., E. O. (Fla.), 75 So. 749. Creek County, 18 Colo. App. 444. 7 Atkins V. Borstler, 46 M i c h. 72 Pac. 602. GA.— Sutton v. 552. Southern R. Co., 101 Ga. 776, 29 1 As Colorado Code Civ. Proc, S. E. 53. IOWA— Troy v. Portable §§27, 28; Ky. Civ. Code Proc, Grain Mill Co., 7 Iowa 465; Hunt §72; Mont. Code Civ. Proc, §613, v. Bratt, 23 Iowa 171; Armstrong Rev. Codes, §6504, etc. ■ v. Borland, 35 Iowa 537; Sanbourn li Nolin Milling Co. v. White v. Sinith, 44 Iowa 152; Wright & Grocery Co., 168 Ky. 417, 182 L. Oil & Lard Mfg. Co. v. Kleigel, S. W. 191. 70 Iowa 578, 31 N. W. 878; Bradley 422 ch. XV.] ACTIONS ON CONTRACTS — CALIFORNIA. § 337 as express contracts/ although the defendant resides in another county;''' and under such a statute the place of the execution of a contract of indemnity does not control the jurisdiction in an action on such contract.** And where a bond incorporates, by reference, a contract providing that the bond shall be enforceable in the county of the owner's residence, suit upon such bond may be instituted in such county, notwithstanding the fact that the sureties sued are nonresidents.' But under such a statute an account will not be included within the provisions, and must be sued in the county of the residence of the defen- dant debtor.* ■ §337. In California. In California actions on contracts, or obligations growing out of a tort,^ and thej^ like, are properly brought and tried in the county in whicli*" the contract was entered into or the obligation arose, even in those cases in which the defendant is a corporation, with its principal office and place of business in another county. - V. Palen, 78 Iowa 126, 42 N. W. 4 State ex rel. Interstate Lumber 623; Davis v. Miller, 88 Iowa 114, Co. v. District Court, 54 Mont. 602, 55 N. W. 89; Eastern Granite Co. 172 Pac. 1030. V. Heim, 89 Iowa 098, 57 N. W. 5 State ex rel. Interstate Lumber 437; Prader v. National Masonic Co. v. District Court, 54 Mont. 602, Accident Assoc, 107 Iowa 431, 78 172 Pac. 1030. N. W. 60. MONT.— Yore v. Murphy, o Brewer v. Gordon, 27 Colo. Ill, 10 Mont. 304, 25 Pac. 1039; State S3 Am. St. Rep. 45, 59 Pac. 404; ex rel. Coburn v. District Court, Smith v. Post Printing & Pub. Co., 41 Mont. 84, 108 Pac. 144; State 17 Colo. App. 238, 68 Pac. 119. ex rel. Interstate Lumber Co. v. 7 Hillyer-Deutsch Lumber Co. v. District Court, 54 Mont. 602, 172 Clark (Tex. Civ. App.), 185 S. W. Pac. 1030. UTAH— Bach v. Brown, 1038. 17 Utah 435, 53 Pac. 991. s McDonnell v. Collins, 19 Mont. Real estate agent's contract for 372, 48 Pac. 549. commission, cause of action arises i Lewis v. Southern Pac. R. Co., where primary contract entered 66 Cal. 209, 5 Pac. 79. into, notwithstanding a supple- As to actions for tort, see, post, mental agreement made elsewhere § 338. limiting the commission. — Fitz- i; See, among other cases, Lewis gerald v. Southern Farm Agency v. Southern Pac. R. Co., 66 Cal. (Va.), 94 S. E. 761. 209, 5 Pac. 79; Fresno Nat. Bank 423 §338 CODE PLEADING AND PRACTICE. [Pt. I, <§> 338. Actions for tort — In general,. Torts are of two kinds, consisting (1) in injuries to the person and (2) in- juries to the property.^ Tortuous injury to property is either (1) injury to personal property- or (2) injury to real property.^ Where the action is for a tortuous injury to real property, the action depending on privity of title is local, and we have already seen the action must be com- menced and tried in the county in which the land is sit- uated,"* in California and probably in all other jurisdic- tions, — except in those cases in which the owner of the real estate waives the tort and sues in simple damages^ or for use and occupation,*' or where a personal action is joined with the action for the tortuous injury,"^ in either of which cases the cause of action becomes transitory in its nature, and the action is to be commenced and the trial had in the county in which the defendant resides or has his domicile, or where he can be served with process,^ subject to the V. Superior Court, 83 Cal. 491, 498, 24 Pac. 157; Trezevant v. Strong Co. (W. R.), 102 Cal. 47, 36 Pac. 395; Whitney & Co. (C. E.) v. Sellers' Commission Co., 130 Cal. 188, 62 Pac. 472. 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 27. 2 Id., §§ 27, 28. Conspiracy to deny plaintiff's right to certain pasture being charged, and damages demanded therefor, no relief being asked as to the real estate, is a personal action in tort, and transitory. — Dunn V. Superior Court, 35 Okla. 38, 128 Pac. 114. 3 Kerr's Cyc. Cal. Code Civ. Proc. §§27, 28. 4 See, ante, §§ 323 et seq. See Brown v. Louisiana & N. W. R. Co., 118 La. 87, 42 So. 656. Fraud upon wife by liusband in a county, in which some of the property involved is situated, and seeking to establish a resulting trust in favor of the wife, is properly brought in a county. — Fox V. Fox (Tex. Civ. App.), 179 S. W. 833. 5 See, ante, § 330. 6 See, ante, § 332. V See, ante, § 333. 8 Id. See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §395; Consoli- dated Supp. 1906-1913, p. 1425. See Sparks v. Fitzgerald, 86 Kan. 628, 122 Pac 98. In Massachusetts, under Rev. Laws, ch. 107, § 6, as amended by Stats. 1904, ch. 320, an action for damages for personal injury suf- fered through negligence of de- fendant, was improperly brought in the county where he was in- jured, he residing in another county. — Hanley v. Eastern Steam- ship Co., 221 Mass. 125, Ann. Cas. 1917D, 1034, 109 N. E. 167. 424 ell. XV.] ACTIONS FOR TORT — UNDER STATUTE. §339 light of change of venue,^ except in those cases in which the defendant is a nonresident of the state, or, if resident within the state, the county of his residence is unknown, in either of which cases the action may be brought and trial had in any county designated by the plaintiff.^^ In a case of injury to the person, ^^ or to personal property, the action is transitory, and must be brought and tried in the county in which the defendant, or one of them, resides. ^^ In a transitory tort-action, the fact that the tort was com- mitted in another county than the one in w^hich the suit is brought, is unimportant,^^ even under a constitutional provision requiring that all civil and criminal business originating in a county must be tried in that county. ^^ § 339. Under statute. By special provision of statute in some of the jurisdictions, — among others in 9 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §397; Consolidated Supp. 1906-1913, p. 1429. 10 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. 11 Phillips V. Baltimore, City of, 110 Md. 431, 25 L. R. A. (N. S.) 711, 72 Atl. 902; Hilsop v. Taaffe, 141 App. Div. (N. Y.) 40, 125 N. Y. Supp. 614; Mattison v. Boston & M. R. Co., 205 Fed. 821. Action for personal injuries by employee to be commenced i n county where parties reside. — Hilsop V. Taaffe, 141 App. Div. (N. Y.) 40, 125 N. Y. Supp. 614. Action to recover damages for negligence, being in tort is transi- tory and may be brought in any county i n which the defendant may be found. — Mattison v. Bos- ton & M. R. Co., 205 Fed. 821. False imprisonment charged, de- fendant is entitled to have action tried in the county of his resi- dence. — Ah F o n g V. Sternes, 79 Cal. 30, 21 Pac. 381. 12 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. See Krogh V. Pacific Gateway & Devel. Co., 11 Cal. App. 237, 104 Pac. 698. Automobile colliding with street- car, action for damages is transi- tory, and the district court of the Canal Zone has jurisdiction, although the collision occurred in Panama. — Panama Elec. R. Co. v. Moyers, 249 Fed. 19. isAnamey v. Caughenaur, 34 Kan. 621, 9 Pac. 476; Sanipoli v. Pleasant Valley Coal Co., 31 Utah 114, 10 Ann. Cas. 1142, 86 Pac. 865. 14 Sanipoli v. Pleasant Valley Coal Co., 31 Utah 114, 10 Ann. Cas. 1142, 86 Pac. 865. 425 §339 CODE PLEADING AND PRACTICE. [Pt. I, Colorado,* Delaware,- Georgia,^ Kentucky,* New York,^ and Texas,^ — actions for damages for a tort may or must be conunenced in the county in wbicli the tort occurred or was committed. Under such a statute an action charging a fraud is properly commenced in the county in which the fraud was committed, regardless of the place 1 Colorado Code, §§ 27, 28. See: Law V. Drinker, 6 Colo. 555; Bean V. Gregg, 7 Colo. 499, 4 Pac. 903; Newell V. Giggey, 13 Colo. 16, 21 Pac. 904; Carlson v. Rensink (Colo.), 173 Pac. 542; Denver & R. G. R. Co. V. Cahill, 8 Colo. App. 158, 45 Pac. 285. Fraud in exchange of real prop- erty is falsely and deceitfully showing another's lands in A county exchanged for property in B county, all the parties residing In B county, where process was served, action properly brought and tried in latter county.— Carl- son V. Rensink (Colo.), 173 Pac. 542. 2 Del. Rev. Code 1915, §4178. See Wolfe v. Baltimore & Philadel- phia Steamboat Co. (Del. Super.), 99 Atl. 304. 3 Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 9 L. R. A. (N. S.) 769, 56 S. E. 1006. 4 Ky. Civ. Code Proc, § 74. See: Rains v. Smith, 155 Ky. 766, 160 S. W. 493; Moser v. Fable, 164 Ky. 517, 175 S. W. 997. False imprisonment charged, action for damages must be brought in the county where the imprisonment occurred. — Rains v. Smith, 155 Ky. 766, 160 S. W. 493. Malicious prosecution charged, action for damages properly com- menced in t h e county in which the arrest occurred. — M o s e r v. Fable, 164 Ky. 517, 175 S. W. 997. 5 Jacina v. Lemmi, 155 App. Div. (N. Y.) 397, 139 N. Y. Supp. 1034. 6 Tex. Rev. Stats. 1895, art. 1194; Id., 1911, art. 1830. See: Hubbard v. Lord, 59 Tex. 384; Raleigh v. Cook, 60 Tex. 438; Belo V. Wren, 63 Tex. 686; Campbell V. Timble, 75 Tex. 270, 12 S. W. 863; Milliard v. Wilson, 76 Tex. 180, 13 S. W. 25; Hill v. Kimball, 76 Tex. 210, 13 S. W. 59; Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645; Connor v. Saunders, 81 Tex. 633, 17 S. W. 236; Hunt v. Hardin, 14 Tex. Civ. App. 285, 36 S. W. 1028; London v. Miller, 19 Tex. Civ. App. 446, 47 S. W. 734; Kleine V. Gidcomb (Tex. Civ. App.), 152 S. W. 4 6 2; Ward v. Odem (Tex. Civ. App.), 153 S. W. 634; Thomason v. Rogers (Tex. Civ. App.), 155 S. W. 1040; Winslow v. Gentry (Tex. Civ. App.), 154 S. W. 260; Carver v. Merrett (Tex. Civ. App.), 184 S. W. 741. Garnishment wrongfully sued out not within provisions of Texas statute, and action for damages can not be maintained in county in which garnished funds were levied upon instead of that of defendant's domicile. — Thomas Goggan' Bros. v. Morrison (Tex. Civ. App.), 163 S. W. 119. 426 ell. XV.] ACTIONS FOR PEN A I .TIES, ETC. § M4() of residence of the parties to the action ;' but the stoppage of payment on a check given in li(]ui(lation of a gambling debt is not a fraud within such a statute."* Under the Texas statute thus fixing the venue in actions for a tort, "trespass" means any intentional wrong;'* signifies an active as contradistinguished from a passive wrong in iho, omission of a legal duty.^** An action on contract to recover damages for failure to deliver a telegram, is not an action on a tort for a personal injury, within the meaning of such statutes. ^^ § 340. Actions for penalties or forfeitures — In gen- eral. At common law, actions for the recov^ery of statu- tory penalties or forfeitures, although of a. local aspect, were suable in an action of *'debt," and were therefore transitory ;i but in California, and in all other jurisdic- tions having procedural codes, an action to recover a penalty or forfeiture imposed by statute is local, and is required to be instituted and tried in the county in which the cause of action, or some part of it, in fact arose. - This is thought to be substantially the provision in all the American jurisdictions, regardless of whether they 7 Martin v. Frank Co., A. B. land charged, action to recover (Tex. Civ. App.), 125 S. W. 958. money paid for option properly Conversion by real estate agent brought in county where land of land he was employed to sell, located. — Kleine v. Gidcomb (Tex. being charged, action may be Civ. App.), 152 S. W. 462. brought in county in which land 8 Lloyd v. Robinson (Tex. Civ. sold is situated. — Thomason v. App.), 160 S. W. 128. Rogers (Tex. Civ. App.), 155 S. W. 9 Ward v. Odem (Tex. Civ. 1040. App.), 153 S. W. 634. Conversion of securities pledged lOWinslow v. Gentry (Tex. Civ. charged, action may be brought in App.), 154 S. W. 260. county in which conversion by 1 1 Western Union Tel. Co. v. agent occurred against principal Morrison (Ala. App.), 74 So. 88. residing elsewhere. — Carver v. i See Gilbert v. Marcy, 1 Kirby Merrett (Tex. Civ. App.), 184 (Conn.) 401. S. W. 741. :> See Kerr's Cyc. Cal. Code Civ. Misrepresentation by agent of Proc, §393. 427 § 340 CODE PLEADING AND PRACTICE. [Pt. I, have procedural codes or not.^ This provision of the California statute, — and the same is doubtless true of all similar provisions in procedural codes, — relates to and includes ordinary actions at law, but does not include special proceedings."* The provision allowing the plain- tiff to have the action tried in a county other than that in which the defendant resides, being exceptional, the plaintiff must bring his case clearly within the exception.'^ Thus, a statute providing for the recovery of specified penalties does not apply in those cases in which the pen- alty is a mere added incident of another action, — e. g., an action to recover an illegal allowance made by county officers,^ — or to an action in which, under the particular statute, recovery of the penalty is otherwise provided for, — e. g., an action to recover penalties for the unlawful use of milk bottles or milk cans,''' or an action to recover a penalty for setting a woods on fire, brought before a justice of the peace, the statutory provision being limited to coi:rts of record,^ or to actions to recover penalties under fish and game laws.** It is not applicable to an action against a public officer to recover on a forfeited official undertaking;^" or in an action for a mere pecun- iary liability arising under a statute, — e. g., an action by a creditor of a corporation to recover the amount of his debt from the officers thereof, on the ground that they 3 See 48 Cent. Dig. Cal. 1537, 703; Bell v. Polymero, 99 App. §18; 20 Decen. Dig., p. 388, §9; Div. (N. Y.) 303, 90 N. Y. Supp. Am. Digs., tit. "Venue," § 9. 920. 4 Santa Rosa, City of, v. Foun- ^ ^i^^er v. Bullard, 109 N. C. tain Water Co., 138 Cal. 579, 581, ^'^4. 13 S. E. 799, holding action 71 Pac 1122 before justice could be maintained in the county of the residence of 5 Brady v. Times-Mirror Co.. 106 ^^^ defendant, although the woods Cal. 56, 58, 39 Pac. 209. involved was situated in another 6 Kearny County Commrs. v. county. Rush, 44 Kan. 231, 24 Pac. 484. 9 Leonard v. Ehrich, 40 Hun 7 Bell V. Niewahner, 54 App. (N. Y.) 460; People v. Rouse, 39 Div. (N. Y.) 530, 66 N. Y. Supp. N. Y.St. Rep. 656, 15 N. Y. Supp. 1096; Warner v. Palmer, 66 App. 414. Div. (N. Y.) 127, 72 N. Y. Supp. 10 Ison, In re, 6 Ore. 4GD. 428 Ch. XV.] ACTIONS FOR PENALTIES, ETC. § 341 have been guilty of fraud, unfaithfulness, or dishonesty ;^^ or to an action to recover (1) compensatory damages and (2) a penalty provided by statute, both claims being founded upon and growing out of the same act of the defendant, the former being a transitory action^- and the latter a local one.^^ Neither does it apply to an action to recover a penalty imposed by law upon a railroad company refusing to obey an order of the state railroad commission, requiring the erection of a depot at a desig- nated place ; in which case the venue of the action is not in the county in which the place is situated at which the depot is directed to be erected, but at the county in which the corporation has its principal office and place of busi- ness within the state." § 341. Actions to which applicable. These stat- utes are applicable to penalties and forfeitures arising by operation of law, — e. g., suit on a forfeited recog- nizance,^ — as well as to acts of commission- and omis- sion,^ — except an omission by a railroad company to build a depot in compliance with an order of the state railroad commission,^ — as an omission to attend in compliance with the command of a subpoena,^ without reference to 11 Flowers v. Bartlett, 66 Minn. i Smith v. Collins, 42 Kan. 259, 213, 217, 68 N. W. 976, following 262, 263, 21 Pac. 1058. National Newhaven Bank V. North- 2 Com. v. Long, 17 Ky. L. Rep. western Guaranty Loan Co., 61 207, 30 S. W. 628; Baltimore & O. Minn. 375, 63 N. W. 1079, in over- R. Co. v. Hollenberger, 76 Ohio ruling Merchants' Nat. Bank of St. 177, 81 N. E. 184. Chicago V. Northwestern Mfg. & 3 Wilkie v. Chadwick, 13 Wend. Car Co., 48 Minn. 349, 51 N. W. (N. Y.) 49; Ithaca Fire Depart- 119. ment v. Beecher, 99 N. Y. 429, 2 12 Wilkie V. Chadwick, 13 Wend. N. E. 154. (N. Y.) 49. -1 Central of Georgia R. Co. v. 13 Cogswell V. Meech, 12 Wend. State, 104 Ga. 831, 42 L. R. A. 518, (N. Y.) 147. 31 S. E. 531. 14 Central of Georgia R. Co. v. •'> Cogswell v. Meech, 12 Wend. State, 104 Ga. 831, 42 L. R. A. 518, (N. Y.) 147; Wilkie v. Chadwick, 31 S. E. 531. 13 Wend, (N. Y.) 49. 429 § 342 CODE PLEADING AND PRACTICE. [I't. [, the residence of the parties/' except as noted above re- specting corporations."^ Thus, it has been held that such statutes apply to actions to recover penalties for failure to pay the required percentage on insurance perfected within the county f to recover penalties for nonattendance as witness in response to subpoena duly served;" to actions to recover statutory penalty against a common carrier for overcharging;^" and to actions to recover penalties for unlawfully carrying on business/^ or unlaw- fully giving rebates by an insurance company or a rail- road.^- Action on a judgment of amercement against a sheriff for failure to perform his official duty, may be brought against the sureties on his bond in the county in which the amercement was had:^^ § 342. Exceptions to the rule. In California,^ Nebraska,- New York,^ and probably elsewhere, it is especially provided that when a penalty or forfeiture is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties,'* or upon a road which is the boundary of two or more counties,^ the action may be brought in any county bor- dering on such lake, river, or stream,*' or road,^ and oppo- site to the place where the offense was committed.^ G Smith V. Collens, 42 Kan. 259, i3 McNee v. Sewell, 14 Neb. 532, 21 Pac. 1058. 16 N. Y. 827. 7 See, ante, § 340, footnote 14. i See Kerr's Cyc. Cal. Code Civ. s Ithaca Fire Department v. Proc, § 393. Beecher, 99 N. Y. 429, 2 N. E. 154. 2 Code Civ. Proc, § 54. 9 Cogswell V. Meech, 12 Wend. 3 Code Civ. Proc, § 983. (N. Y.) 147; Wilkle v. Chadwick, 4 See note 1, this section. 13 Wend. (N. Y.) 49. 5 See note 2, this section. 10 Baltimore & O. R. Co. v. Hoi- « See note 1, this section, lenberger, 76 Ohio St. 177, 81 N. E. t See note 2, this section. 184. ^ See McNee v. Sewell, 14 Neb. 11 Com. V. Grand Central Build- 532, 16 N. W. 827; Bell v. Nie- ing & Loan Assoc, 97 Ky. 325, 30 wahner, 54 App. Div. (N. Y.) 530, S. W. 626. 66 N. Y. Supp. 1096; Warner v. 12 See Com. v. Long, 17 Ky. L. Palmer, 66 App. Div. (N. Y.) 127, Rep. 207, 30 S. W. 628. 72 N. Y. Supp. 703. 430 ch. xv,] actions in representative capacity. § 343 § 343. Actions by and against persons in representa- tive CAPACITY — In general. At common law, an adminis- trator, executor, or other person acting in a representa- tive capacity, was sued in transitory actions in the place where he resides.^ In this country the venue in actions hy and against persons acting in a representative capacity is largely a matter of statutory provision. In some of the jurisdictions the venue in such actions is declared to be where it would have been necessary to sue the deceased or other person represented;- in others administrators and executors are to be sued in the county in which the estate is being administered, regardless of where the subject-matter is situated;^ while in yet other jurisdic- tions an action against an administrator or executor for an accounting must be brought in the county in which he resides, even though the property of the estate is located in another county.** An action by an administrator or executor to recover the price of property of the estate Kold by him, must be brought in the county in which one or more of the defendants reside.^ An action by creditors against an assignee of their debtor to compel an account- ing and settlement of the assignment, should be brought where the assignee resides.*"' Action by a ward or his representative against the guardian, under some statutes, is required to be brought in the county in which the guard- ian qualified.'^ A right of one whose property has been injured to sue to recover damages therefor in the county in which the cause of action arose, has been said not to extend to his personal representative.*^ 1 Thompson v. Wood, 115 Cal. c Campbell v. Crawford, G3 Ala. 301, 47 Pac. 50. 392. " ^^- 7 Stone's Adm'r v. Powell, 52 Ky. 3Neill V. Owen, 3 Tex. 145; (13 B. Mon.) 342; Greenly v. Dan- Bondies v. Buford, 58 Tex. 266. jeig, 69 Ky. (6 Bush) 41. 4 Ware v. Henderson, 25 S. C. c o *i, * t^ /-. t^ ,, ^ s Southwestern R. Co. v. Paulk, • 24 Ga. 356. r. Pate V. Taylor, 66 Miss. 97, 5 So. 515. 431 §§ 344, 345 CODE pleading and practice. [Pt. I, § 344. In California. There is no statute in Cali- fornia especially governing the venue in the case of actions by or against persons acting in a representative capacity. There is no statute designating any official residence for administrators or executors ;^ and they are not public officers within the meaning of the statute fixing the venue as to the latter. ^ § 345. Actions against a public officer. The Califor- nia statute provides that all actions against a public officer, or person especially appointed to execute his du- ties, for an act done by him in virtue of his office, or against a person who by command of a public officer or in his aid, does anything touching the duties of such officer, — must be tried in the county in which the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial.^ This statute applies to and includes acts, and is limited to acts, affirmatively done f it does not include omissions to act, when it was ^^^thin the scope of their office and their duty to act.^ In a number of the jurisdictions the scope of the statute has been enlarged so as to embrace actions for a failure to act, as well as actions for acts done.^ The act 1 "No rule of law with which I v. Curry, 153 Cal. 418, 420, 95 Pac. am acquainted gives countenance 887; State Commission of Lunacy to the idea that there is an of- v. Welch, 154 Cal. 775, 778, 99 Pac. ficial residence of an executor." — 181. Temple, J., in Thompson v. Wood, 3 Id. 115 Cal. 301, 302, 47 Pac. 50. 4 See: COLO.— Denver & R. G. -• Kerr's Cyc. Cal. Code Civ. R. Co. v. Cahill, 8 Colo. App. 158, Proc, § 393, subd. 2. See Thomp- 45 Pac. 285. KAN.— Clay v. Hays- son V. Wood, 115 Cal. 301, 47 Pac. rodt, 8 Kan. 74; Fay v. Edminston, 50. 28 Kan. 105; Barton v. Hanauer, 1 Kerr's Cyc. Cal. Code Civ. 4 Kan. App. 531, 44 Pac. 1007. Proc, § 393. KY. — Daniel v. New Era Land Co., 2 McMillan v. Richards, 9 Cal. 137 Ky. 535, 126 S. W. 108. MINN. 365, 420-1, 70 Am. Dec. 655. (This — Tullis v. Brawley, 3 Minn. 277; case was decided under § 19, Prac- Hinds v. Backus, 45 Minn. 170, 47 tice Act, which is substantially re- N. W. 655; State ex rel. Motor enacted in the Code Civ. Proc, Drill Co. v. District Court. 92 § 393, given in the text) ; Bonestell Minn. 402, 100 N. W. 2; Hawley v. 432 eh. XV.] ACTIONS AGAINST CITIES, ETC. § 346 charged must have been done as an officer; if the act complained of is charged to have been done by defendant while he was not a public officer, the statute does not apply.^ If the act complained of w^as done *'in virtue of his office," or under color of his office, the statute applies,'' although his office did not strictly justify the act done and complained of.'^ § 346. Actions against cities, counties or towns — In GENERAL. In the absence of special statutory provisions, an action in which a city, or a county, or a town, or other municipal corporation is a party, is governed by the usual rules of civil procedure ; and where either sued in a wrong county or district, appears and answers without objection to the jurisdiction, all objection to the jurisdiction in which the action or proceeding is commenced is deemed to be thereby waived,^ and the right to a change of venue- is consequently lost ;^ but the officers or agents of a munic- ipal corporation can not, either by consent or by an omis- sion to object, confer on a court jurisdiction in an action against the corporation, where the law has conferred Scott, 123 Minn. 159, 51 L. R. A. s People v. Piatt, 10 N. Y. St. (N. S.) 137, 143 N. W. 257. NEB.— Rep. 577; affirmed, 46 Hun 394, 12 McNee v. Sewell, 14 Neb. 532, 16 N. Y. St. Rep. 409. N. W. 827; Omaha & R. V. R. Co. g Gumming v. Brown, 45 N. Y. V. Brown, 29 Neb. 492, 46 N. W. 514, 6 Am. Rep. 124; Conley v. 39; Vennum v. Huston, 38 Neb. Carney, 126 App. Div. (N. Y.) 337, 293, 56 N. W. 970; State v. Hill, 38 110 N. Y. Supp. 528; Murphy v. Neb. 698, 57 N. W. 548; Herbert v. Callan, 69 App. Div. (N. Y.) 413, Wortendyke, 40 Neb. 182, 68 N. W. 74 N. Y. Supp. 1009. 350; Kyd v. Cortland Exch. Bank, 7 Brown v. Smith, 24 Barb. 56 Neb. 557, 76 N. W. 1058. (N. Y.) 419. Action against municipal cor- See exhaustive note 51 L. R. A. poration, — e. g., a town, for dam- (N. S.) 137-151. ages for injuries sustained through i As to objections and excep- negligence of defendant's officers, tions generally, and waivers, see, is within a statute providing as to post, §§ 355-357. venue in the case of actions 2 As to change of venue, see, against public officers.— Jones v. post, ch. XVII. Statesville, Town of, 97 N. C. 86, a Clarke v. Lyon County, 8 Nev. 2 S. E. 346. 181. I Code PI. and Pr.— 28 433 §346 CODE PLEADING AND PRACTICE. [Ft. L exclusive jurisdiction elsewhere.^ The general rule is that all actions and proceedings against cities,^ and towns," and other municipal corporations,'^ whether on contract or for tort,^ must be brought in the county in which they are located, and that actions against a county must be brought in the county sued.'' Where a city is located partly in one county and partly in another, it has a situs in each county, and may be sued in either county,'" al- though it has been said that the action or proceeding should be commenced in the county in which the municipal offices and government of the municipality are located,' ' when the action is not local.'- Where the statute pro- 4 Callahan v. New York, City of, 66 N. Y. 656, affirming 6 Daly (N. Y.) 230. 5 Jones V. Statesville, Town of, 97 N. C. 86, 2 S. E. 346; Oil City V. McAboy, 74 Pa. St. 249; Lehigh County V. Kleckner, 5 Watts & S. (Pa.) 181; Potts v. Pittsburgh, City of, 14 W. N. C. (Pa.) 38; Heck- scher v. Philadelphia, City of, 6 Sad. Pa. Cas. 346, 9 Atl. 281; North Yakima, City of, v. Superior Court, 4 Wash. 655, 30 Pac. 1053. »> Township can not be sued in any county except the one in which situated. — Pack v. Green- bush Township, 62 Mich. 122, 28 N. W. 746. " Paris! Vmay be sued within its territorial limits in any court of competent jurisdiction. — State ex rel. Police Jury of St. Martin Par- ish V. Dupre, 46 La. Ann. 117, 14 So. 907. School district can not be sued outside of the county in which situated. — Evans v. Wrightsville School Dist. (Pa.), 1 Lane. Bar, Feb. 12, 1870. s Heckscher v. Philadelphia, City of, 6 Sad. Pa. Cas. 346, 9 Atl. 281. 9 Johnston v. Cleaveland County, 67 N. C. 101; Alexander v. Mc- Dowell County, 67 N. C. 330; Jones V. Bladen County, 69 N. C. 412; Jones V. Statesville, 97 N. C. 86, 2 S. E. 346; Lehigh County v. Kleckner, 5 Watts & S. (Pa.) 181; Montague County v. Meadows (Tex. Civ. App.), 31 S. W. 694. County and others defendant, latter residing elsewhere, action must be brought in courts of county sued. — Montague County v. Meadows (Tex. Civ. App.), 31 S. W. 694. Utah Comp. Laws 1888, §5195, provides that certain actions against a county may be com- menced and tried in any county. — Konold V. Rio Grande W. R. Co., 16 Utah 151, 51 Pac. 256. 10 Fostoria, City of, v. Fox, 60 Ohio St. 340, 54 N. E. 370; Fox v. Fostoria, City of, 14 Ohio Cir. Ct. Rep. 471, 8 Ohio Cir. Dec. 39. Hid. 12 Action for damages for per- sonal injuries, brought against a municipal corporation, is local, and must' be brought in the county in which the injury occurred. — Nash- 434 eh. XV.] ACTIONS LOCAL TO PLACE, ETC. §§ 3-47, ;348 vides in what county a city, or a county, or a town may be sued, this is said not to prevent an action or proceeding being commenced elsewhere, subject to the right of a change of venue ;^^ but in Washington, and perhaps else- where, it has been held that a city can not be sued outside of the county in w^hich it is located.^^ <^ 347, In California. In California an elaborate statute regulates the bringing of actions in which a city or county or other municipal corporation is a party,' and the same is true with regard to many other jurisdictions. § 348. Actions made local to place of accrual. By constitutional provision in some states,^ and by statutory provision in others,- actions are made local to the place in which they accrued.^ The place of accrual depends upon the circumstance of the particular transaction and the acts involved. Thus, the accrual of a cause of action for false representations in a land transaction, the cause of action does not accrue until the plaintiff elects to rescind, tenders a reconveyance of the property, and ville, City of, v. Webb, 114 Tenn. i As Utah Const., art. VIII, §5. 432, 85 S. W. 404. See Campbell v. Rio Grande W. R. Insufficiency of road causing per- co., 16 Utah 346, 52 Pac. 594; sonal injuries, action against a Brown v. Bach, 17 Utah 435, 53 municipality for damages is not p^^ gg^. condon v. Leipsiger, 17 local so as to require the action to ^^^^ ^gg^ 55 p^^ g2: Hecla Gold- be brought in the county in which ^.^ ^^ ^ Gisborn. 21 Utah 68, the action occurred.— Hunt V. Pow- ^g p^^ g^g. continental Life Ins. nal, Town of, 9 Vt. 411. ^ j^^ Co. v. Jones, 31 Utah 403, Local actions against municipaii- gg p^^^ 229 Cases arising within jurisdiction only are controlled by this pro- vision. — Steed V. Harvey, 18 Utah 367, 72 Am. St. Rep. 7S9, 54 Pac. 1011. ties must be brought in the proper county. — Hughart v. County (Pa.), 1 Legal Opinions 63. 13 Clarke v. Lyon County, 8 Nev. 181. 14 North Yakima, City of, v. Su- perior Court, 4 Wash. 655, 660, 30 - As in California, Kerr's Cyc. Pac. 1053. ^^^- ^^^^ ^^^- ^''°^-' § ^^^• 1 See Kerr's Cyc. Cal. Code Civ. 3 Montezuma County Commrs. v. Proc, 2d ed., § 394; Biennial Supp. San Miguel County Commrs., 3 1915, p. 3057. Colo. App. 137, 32 Pac. 346. 435 § 349 CODE PLEADING AND PRACTICE. [Pt. I, demands the return of the consideration price paid ; and the place where this offer and demand are made is the place of accrual of the cause of action.^ We have already seen that actions must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, where the same is for the recovery of a penalty or forfeiture imposed by statute;^ except that, where it is imposed for an offense committed on a lake, river, or other stream of water, or road, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed f and that where the action is against a public officer, or person especially appointed to execute his du- ties, for an act done by him in \drtue of his office, or against a person who, by his command or in his aid, does anything touching the duties of such officer,'^ but applies to his acts of commission and not to his acts of omission in California, although the rule is otherwise in some jurisdictions f but the statute does not apply to officers of the federal government.^ § 349. Actions to be tried where subject-matter situ- ated — In general. The California Code of Civil Pro- cedure provides that certain actions shall be tried, — stat- ute in some jurisdictions require that they shall be com- menced also, — in the county in which the subject-matter, or some portion thereof, is situated,^ subject to the right 4 Hammond v. Ocean Shore Provision as to place of com- Devel. Co., 22 Cal. App. 167, 133 mencement of action, applies to Pac. 978. the commencement of the action, 5 See, ante, §§ 340, 341. only; it does not prevent a change c See, ante, § 342. of venue, when a cause therefor 7 See, ante, § 345. exists; e. g., the disqualification 8 Id. of the judge of the county in which 9 Freeman v. Robinson, 7 Ind. the land is situated. — Hancock v. 321. Burton, 61 Cal. 70. 1 See Kerr's Cyc. Cal. Code Civ. New county created after com- Proc, 2d ed., § 392: Consolidated mencement of action, — e. g., to Supp. 1906-1913, p. 1422. foreclose a mortgage, — does not 436 ell. XV.] SITUATION OF SUBJECT-MATTER. § 350 of a change of the place of trial ;- and a similar provision is found in all those jurisdictions having a reformed sys- tem of judicature,^ and in some of the states, — e. g., Ore- gon,^ — actions affecting personal property are also in- cluded,^ provisions requiring actions to be commenced in the county of the location of the subject-matter of the action have been said to be mandatory, and that if the action is not thus commenced the court acquires no juris- diction over the subject-matter;^ but the better doctrine is thought to be that, where action is commenced in the wrong county, the right to a trial in the county in which the subject-matter is situated is a mere privilege to be claimed on a motion for the change of the place of trial. ^ § 350. What actions included. Under the provis- ions of the California statute, and like or similar statutes, the following actions are included : Actions for the recov- ery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property; actions for the partition of land ; actions for the foreclosure of all liens divest the court of the original 4 Hill's Ann. Code, § 42. See county of jurisdiction, even though Moorehouse v. Donaca, 14 Ore. 430, the land affected, the subject-mat- 13 pac. 112. ter of the action, is located in ^ ^^ ^^ personal property, see. ante, § 334. another county. — Security Loan & Trust Co. V. Kauffman, 108 Cal. 214. 41 Pac. 467. See Bookwater c Vallejo v. Randall. 5 Cal. 461; V. Conrad. 15 Mont. 464. 39 Pac. McLeod v. Ellis, 2 Wash. 117. 26 573. 851; Bent v. Maxwell Land Pac. 76; State ex rel. Peterson v. Grant & R. Co., 3 N. M. 227, 3 Superior Court, 5 Wash. 639, 32 Pac. 721. Pac. 553. See, also, ante, § 329. 7 Vallejo v. Randall, 5 Cal. 4G1; 2 Kerr's Cyc. Cal. Code Civ. Watts v. White, 13 Cal. 321, 324, Proc, 2d ed., § 392; Consolidated overruling Hennessy v. Nicol, 103 Supp. 1906-1913, p. 1422. Cal. 138, 141, 38 Pac. 649; Fletcher 3 See Roberts v. Roberts, 124 v. Stowell, 17 Colo. 94, 97, 28 Pac. Mich. 414, 83 N. W. 132; Carr v. 326; Smith v. People, 2 Colo. App. Lewis Coal Co., 96 Mo. 149, 9 Am. 99, 105, 29 Pac. 924; Clarke v. St. Rep. 328, 8 S. W. 907; State ex Lyon County, 8 Nev. 186; Elliott rel. Peterson v. Superior Court, 5 v. Whitmore, 10 Utah 246, 251, 37 Wash, 639, 32 Pac. 553. Pac. 461. 437 §350 CODE PLEADING AND PRACTICE. [Pt. L and mortgages on real property.^ Where the real prop- erty is situated partly in one county and partly in an- other, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action.- It is to be noted that the statutory re- quirements do not apply to actions for lands lying out of the state,=* but to actions for the possession of real prop- erty within the state,"* or, for the determination of a right or interest therein;-'^ or, for the recovery of title thereto;^ or, for the foreclosure of mortgages thereon."^ We have already seen that a mining claim is real estate as relates to the jurisdiction and venue in actions affect- ing the same,^ and hence mining claims are included under this provision of the statute.'' An action for the diversion of water from the plaintiff's ditch may be brought in either of the counties in which such ditch is situated, although the defendant's place of business is in another county where the act complained of was committed.^" 1 See/also, supra, §§ 323-333. 2 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §392; Consolidated Supp. 1906-1913, p. 1422. Lands situated in several coun- ties and an action is brought in one of the counties to secure the cancellation and annulment of cer- tain agreements relating to all the lands described in the complaint, and to quiet the title thereto as against several defendants, a dis- claimer as to the lands situated in the county in which the action is brought will not entitle a defen- dant residing in another county, in which alone he alleges that he claims lands adversely to the plaintiff, to a change of the place of trial. — Pennie v. Visher, 94 Cal. 323, 29 Pac. 711. 3 Newton v. Bronson, 13 X. Y. 587, 67 Am. Dec. 89; Mussina v. Belden, 6 Abb. Pr. (N. Y.) 165. 4 Maris v. Remsen, 3 N. Y. Code R. 138. 5 Wood v. Hollister, 3 Abb. Pr. (N. Y.) 14; Starks v. Bates, 12 How. Pr. (N. Y.) 465. 6 Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec, 89; Ring v. Mc- Coun, 3 N. Y. Super. Ct. Rep. (3 Sandf.) 524: affirmed, 10 N. Y. 268: Wood V. Hollister, 3 Abb. Pr. (N. Y.) 14. T Vallejo V. Randall, 5 Cal. 461. See, ante, § 329. 8 See, ante, § 326. 9W'atts V. White, 13 Cal. 321, 325; Hughes v. Devlin, 23 Cal. 501, 506; Buchner v. Malloy, 155 Cal. 255, 100 Pac. 688. 10 Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408; People's Ditch Co. V. Kings River & Fresno Canal Co. (Cal.), 2 Pac. 45. 438 eh. XV.] ANCILLARY ACTIONS, ETC. § 351 And a suit by a county to restrain the pollution of a water course, is properly commenced and tried in the county where the pollution occurs and the subject-matter of the action is situated, notwithstanding the fact that the action is against a corporation having its principal office and place of business in another county.^^ <^ 351. Ancillaky and incidental actions. In the case of ancillary and incidental actions there is an exception to the rule above laid down,^ requiring the action to be commenced and tried in the county in which the subject- matter is situated. Thus, the assignee of a judgment may maintain a creditors' suit in a county other than tliat in which the judgment assigned was recovered.- In the case of a claim filed to property le\^ed upon under execution, the trial must be had in the county to which the execution is returnable, where that is different from the one in which the property levied upon is situated and in which the claimant resides.^ A suit in equity, the main object of which is not to stay an action at law, but the securing of other relief, the stay of the proceedings at law being merely incidental or auxiliary to the securing such other relief sought, may be commenced and tried in a county other than the one in which the judgment at law was recovered.^ An action to enjoin the sale, under an execu- tion and levy thereon, of land claimed as a homestead, must be brought and tried in the county in which the defendant resides, although that is not the county in which the land is situated or the county in which the judgTuent was recovered.'^' An action to set aside and vacate a judgment, to vacate and set aside the transcript and docketing of the judgment in a county other than 11 Yuba County v. North Anier- "Aiken v. Peck, (54 Ga. (it:;. ican Consol. Gold Min. Co., 12 Cal. ■* Lester v. Stevens, 29 111. 155. App. 223, 107 Pac. 139. •''' See Fannin County Bank v. 1 See, ante, §§ 349, 350. Lowenstein (Tex. Civ. App.), 54 i' Rankin v. Rothschild, 78 Mich. S. W. 316. 10, 43 X. W. 1077. 439 § 352 CODE PLEADING AND PRACTICE. [Pt. I, that in which the judgment was recovered, and also to vacate and set aside a levy upon land situated in the latter county, must be brought and tried in the county in which the defendant resides, although that is other than the county in which the judgment was recovered or the county in which the land levied upon is situated.^ § 352. Right to sue in more than one county — Elec- tion. There are instances in which a plaintiff has an equal right to bring his action in two or more counties, in which case he must elect in which county the action shall be brought and trial had, and the simple bringing of the action constitutes such election. Thus, we have already seen that when a city is situated in two counties, it may be sued in either county.^ A cause of action arising in one county and the sole defendant residing in another county, action may be brought in either county.- An action on a vendor's lien to recover the purchase price of land sold, may be brought in the county in which the land lies or in another county.^ An action to abate a public nuisance to lands situated partly in one county and partly in another, may be brought in either county :^ Thus, where a railroad places deleterious substances in a flow- ing stream in A county, and suffers them to float on the stream into B county, an action may be maintained in the latter county.^ An action to foreclose a mortgage, or other lien, on lands situated in two or more counties, may be brought in either county in which a part of the land is situated, regardless of the residence of the mortgagee:^ Thus, where mortgaged land situated in one county is released and a deed executed to the mortgagee of lands 6 state ex rel. Child v. District -i McClatchy v. Laguna Lands, Court, 85 Minn. 283, 88 N. W. 755. Limited, 32 Cal. App. 718, 164 Pac. 1 See, ante, § 346. 41. ■2 Danser v. Dorr, 72 W..Va. 430, r, Com. v. Louisville & N. R. Co., 78 S. E. 367. 175 Ky. 267, 194 S. W. 345. 3 Samuel v. Allen, 98 Cal. 406, o Hendrix v. Nesbitt, 96 Ky. 652, 33 Pac. 273. 29 S. W. 627. 440 cll. XV.] ACTION IN MORE THAN ONE COUNTY. § 352 situated in another county, as security in lieu of the released land, foreclosure may be brought in either county, the same as though the deeded lands had been included in the original mortgage."^ An action to recover real property situated in two or more counties, may be brought in any county in which a part of the land is situated.^ An action to vacate and set aside, on the ground of fraud, a judgment establishing lieirship, and to establish the right of the plaintiff as an heir, where the estate, consisting of land and moneys, has not yet been distributed, although a ''mixed action," should be brought in the county in which the land is situated, rather than in the county in which the defendant resides.*^ Boundaiy of real estate being the subject of litigation, and the true boundary line being the dividing line between two coun- ties, the action may be brought in either county.^*' Ferry company operating between two counties violating its franchise, action may be brought in either county.^^ Wrongful diversion of water in one county which causes injury to plaintiff's rights in another county, suit may be maintained in either county:^- Thus, where an irrigation canal extends in or through A county and B county, an action for wrongful diversion in A county may be main- tained in either county ;^^ and where a trespass is charged to have been committed upon the real property of a water company, committed at its source of supply in one county, and resulting in injury to its real property in another county, in which latter county the company furnishes 7 Hilt V. Griffin, 77 Kan. 783, 90 n Jefferson Parish Police Jury Pac 808. '^'- Westwego & Walnut St. Ferr.v 8 Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428. Co., 131 La. 430, 59 So. 862. 12 Desert Trr. Co. v. Mclnt.vre. IG Utah 398, 52 Pac. 628. Roach V. Whalen, 22 Cal. App. in Lower Kings River Water 508, 135 Pac. 57, following Sloss v. Ditch Co. v. Kings River & Fresno De Toro, 77 Cal. 129, 19 Pac. 233. c^^al Co., 60 Cal. 408, followed in See Acker v. Leland, 96 N. Y. 383. People's Ditch Co. v. Kings River loCoddo Parish v. De Soto Par- & Fresno Canal Co. (Cal.), 2 Pac. ish, 114 La. 370, 38 So. 274. 45. Ml § 353 CODE PLEADING AND PRACTICE. [Pt. I, water, the water company may bring its action for relief in the latter county.^* But where obstructions are placed in a private way, some of which obstructions are situated in one county and some of them in another county, actions must be brought in both counties, the courts of each county being without jurisdiction to order the removal of the obstructions in the other county.^^ § 353. Joinder of causes suable in different COUNTIES. Where two or more causes of action, which are each suable in different counties, are properly joined in the complaint, the action may be commenced and the cause tried in any county in which an action might have been maintained upon either cause of action thus joined ;^ but it is different in those cases in which the causes of action are, under the provisions of the system of judicature, improperly joined. Thus it has been said that where the complaint sets out a cause of action on two counts based upon an open account, upon which the defendant is en- titled, under the statutory provision, to a trial in the county of his residence, the plaintiff can not defeat that right by joining therewith a third count founded upon contract, the cause of action as to which count is, under the statute, triable in the county in which the contract was required to be performed.- In such a case the joinder of the count founded upon contract with, the counts founded upon open account was a manifest misjoinder under the reformed system of judicature because the cause of action on the first two counts and the cause of action upon the third count were not triable in the same jurisdiction. The 14 Yolo Consol. Water Co. v. v. Emigrant Ditch Co., 129 Cal. 227, Adamson, 22 Cal. App. 493. 136 61 Pac. 960. „ ^ ,, . _ „. isMarchman v. Brown, 143 Ga. Pac. 48, following Lower Kings ^^^ ^^ ^ ^ ^^ River Water Ditch Co. v. Kings ^ international & G. N. R. Co. v. River & Fresno Canal Co., 60 Cal. Anderson County (Tex. Civ. App.). 408; Drinkhouse v. Spring Valley 150 S. \V. 239. Water Co., 80 Cal. 308, 22 Pac. 252. -2 Bond v. Hurd, 31 Mont. 314, 3 and Last Chance Water Ditch Co. Ann. Gas. 566, 78 Pac. 579. 442 eh. XV.] LAYING VENUE. §354 joining of a real with a personal action destroys the local character of the real action and makes the consolidated action, in its nature, transitory and triable in the county of the residence of the defendant, only ;^ a count charging trespass upon land and cutting trees^ belonging to the plaintiff, whereby the defendant became indebted to the plaintiff in the value of the trees, is improperly joined with a further count seeking to recover treble damages, under the statute relating to trespass upon land, and destroys the court's jurisdiction;^ the cause of action declared on in the first count being transitory,*' and that declared on in the second being local. '^ § 354. Laying venue. The treatment of the matter of laying the venue in civil actions, — that is to say, stating the county or locality in which the cause of action tran- spired or the subject-matter of the action is situated, — does not properly fall within the scope of this part of the present treatise, but will be found fully developed in Part IV, dealing with the Pleadings in Ci\dl Actions. Suffice it to say in this place that, as to transitory actions,^ venue is not required to be laid, further than to indicate the place of trial ;-' but in local actions,^ being important and traversable, should be laid."* ■■•> Smith V. Smith, 88 Cal. 572, 26 2 Jordan v. Brown, 71 Iowa 421. Pac. 356. 32 N. W. 450; McKenna v. Flsk, 42 See, also, ante, § 33.-], where this U. S. (1 How.) 241, 248, 11 L. Ed. question is fully discussed and the .117, 120. authorities cited. •"? See, ante, §§ 320, 321, 323 et ■i As to action for trespass on seq. land, cutting trees, etc., see, ante, -t Campbell v. West. 86 Cal. 197. §330. 24 Pac. 1000; Chicago & S. E. R. r. McLeod v. Ellis, 2 Wash. 117. Co. v. Wheeler, 14 Ind. App. 64. 26 Pac. 76. 42 N. E. 489; Blackstone Nat. Bank '1 See. ante, § 330, footnotes 4 and v. Lane, 80 Me. 165, 13 Atl. 683; 5; post, § 354, footnote 2. Baltimore & Y. Turnp. Road v. 7 See, ante, §§320, 321, 323 et Crowthers, 63 Md. 558, 1 Atl. 379; seq. See Kentucky Land & Coal Omaha & R. V. R. Co. v. Brown, Co. V. Mineral Devel. Co., 191 Fed. 29 Neb. 492, 502. 46 N. W. 39; 916, 917. United States v. Woolsey, 6 Betts, 1 See, ante, §§ 320, 322. D. C. MSS. 50, Fed. Cas. No. 16762. 413 §§355,356 CODE pleading and practice. [Pt. I, § 355. Objections and exceptions — In general. At common law, in transitory actions, the plaintiff could lay the venue in any county he desired,^ but in local actions he was required to lay the venue truly f and a mistake in venue, or a want of venue, was taken advantage of by special demurrer,^ or on the trial by a motion for a non- suit.^ In this country the matter of the method of taking advantage of such defects depends largely upon (1) statu- tory provisions regulating practice and procedure and (2) upon the doctrine in the particular jurisdiction regarding the nature of venue ;^ but objection to the venue is usually raised: (1) Where the defect appears upon the face of the pleading, as at common law, by special demurrer; (2) where the defect does not appear upon the face of the pleading, by a plea in abatement or by answer, and, by statutory provision in Texas, by a *'plea of privilege." § 356. In California. In California and also in most, if not all, the states having the reformed system of judicature, a mistake in the venue is taken advantage of by a motion for a change in the place of trial to the proper county,^ except in those cases in which the place of com- mencement of an action prescribed by the statute is man- datory and must be complied with in order to confer upon the court jurisdiction over the subject-matter of the ac- 1 Stephen on Pleading (5th Eng. People, 2 Colo. App. 99, 105, 29 Ed.), p. 324. , Pac. 924; Gunnison County v. Sa- 2 Id. guache County, 2 Colo. App. 412, 3 1 Chitty on Pleading (16th Am. 31 Pac. 183; Wasson v. Hoffman, Ed.), p. 289. 4 Colo. App. 491, 36 Pac. 445; Den- 4 Id., p. 290. ver & R. G. R. Co. v. Cahill, 8 5 See Globe Accident Ins. Co. v. Colo. App. 158, 45 Pac. 285. IND. Reid, 19 Ind. App. 203, 47 N. E. TR.— Graham v. Stowe, 1 Ind. Tr. 947, 49 N. E. 291. 405, 37 S. W. 837. IOWA— Gold- 1 CAL..— Reyes v. Sanford, 5 Cal. smith v. Wilson, 67 Iowa 662, 25 117; Pearkes v. Freer, 9 Cal. 642; N. W. 870; Marquardt v. Thomp- Watts V. White, 13 Cal. 321; Herd son, 78 Iowa 158, 42 N. W. 634. V. Tuohy, 133 Cal. 55, 65 Pac. 139. MONT,— State ex rel. Gnose v. COLO.— Fletcher v. Stowell, 17 District Court, 30 Mont. 188, 75 Colo. 94, 28 Pac. 326; Smith v. Pac. 1109; State ex rel. Schatz v. 444 eh. XV.] OB.IECTIOXS — ESTOPPEL, ETC. § 357 tion.- This right to a change of the place of trial to the proper county is an absolute one, and the change must be made, on timely application duly made therefor.^ § 357. Estoppel and waiver. Under the California statute, requiring certain specified action to be com^ menced in designated counties, a failure to commence one of such actions in the county designated does not affect the jurisdiction of the court in which the action is com- menced,^ because an action can be commenced and tried in any county in the state.- If the county in which an action is commenced is not the proper county for the trial thereof under the statute, the defendant, by filing an affidavit of merits^ at the time he files his answer or demurrer, and demanding, in writing, a change of the District Court, 40 Mont. 173, 105 Pac. 554. NEV.— Williams v. Kel- ler, 6 Nev. 144; Clarke v. Lyon County, 8 Nev. 181, 186. UTAH— Elliott V. Whitmore, 10 Utah 246, 251, 37 Pac. 461. 2 See Herd v. Tuohy, 133 Cal. 55, 59, 65 Pac. 139. See, also, ante, §§ 323 et seq. Failure to object to jurisdiction of court in action involving in- juries to land brought in a county other than the one in which the land is situated, does not confer jurisdiction on the court in which the action is commenced, under the Washington statute. — McLeod V. Ellis, 2 Wash. 117, 26 Pac. 76. 3 Watts V. White, 13 Cal. 321; McSherry v. Pennsylvania Consol. Gold Min. Co., 97 Cal. 637, 641, 32 Pac. 711; Herd v. Tuohy, 133 Cal. 55, 60, 65 Pac. 139; Wallace v. Owsley, 11 Mont. 219, 221, 27 Pac. 790; Williams v. Kelly, 6 Nev. 144; Clarke v. Lyon County, 8 Nev. 181, 186; Small v. Gilruth, 8 S. D. 287, 290, 66 N. W. 452. Suing association and individ- uals, individual defendants entitled to have trial of action removed to county of their residence; by so suing plaintiff waives his right to have cause tried in county in which the breach of contract oc curred. — Nelson v. East Side Gro- cery Co., 26 Cal. App. 344, 140 Pac. 1055. 1 Herd v. Tuohy, 133 Cal. 55, 59. 65 Pac. 139; Fletcher v. Stowell, 17 Colo. 94, 28 Pac. 326; Gunnison County Commrs. v. Saguache County Commrs., 2 Colo. App. 412, 31 Pac. 183; Wasson v. Hoffman, 4 Colo. App. 491, 36 Pac. 445; Smith v. Morrill, 12 Colo. App. 233. 55 Pac. 824. 2 See, ante, § 319. See Grocers' Fruit Growing Union v. Kern County Land Co., 150 Cal. 466, 475-6, 89 Pac. 120. 3 Form of affidavit of writs, see Jury's Adjudicated Forms of Plead- ing and Practice, vol. 2, p. 1815, Forms Nos. 1099, 1100, 415 §357 CODE PLEADING AND PRACTICE. [Ft. 1. place of trial,* may, on motion,'' have the trial transferred to the proper county.*' The right to have an action tried in a particular county is a mere personal privilege of the defendant in California and jurisdictions \vith a like statute," which privilege may be waived either expressly or by implication f and where an application is not made; for a change of the place of trial to the proper county in due season,'' and in the proper form under the statute,^" objection on account of the action having been commenced in the wrong county is deemed to be waived,^ ^ and the defendant will be thereafter estopped to raise it by niov- 4 Form of demand for change of place of trial, see Id., p. 1814, Form No. 1097. "i Form of motion for change of place of trial, see Id., p. 1814, Form No. 1096. <« Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427. See Herd V. Tuohy, 133 Cal. 55, 60, 65 Pac. 139. See, also, ante, § 356. T Burton v. Graham, 36 Colo. 199, 84 Pac. 978; White v. Rio Grande W. R. Co., 25 Utah 346, 71 Pac. 593. X Pearkes v. Freer, 9 Cal. 642; Watts V. White, 13 Cal. 321; Jones V. Frost, 28 Cal. 245, 246; Cook v. Pendergast, 61 Cal. 72, 75, 79; Hearne v. De Young, 111 Cal. 373, 376, 43 Pac. 1108; Smith v. Pelton Water Wheel Co., 151 Cal. 399, 401, 90 Pac. 932; Clarke v. Lyon County, 8 Nev. 181, 186. "At or before filing demurrer," is the holding in Pearkes v. Freer, 9 Cal. 642. "At the earliest opportunity," is said to be the uniform rule, in Smith V. Pelton Water Wheel Co., 151 Cal. 399, 401, 90 Pac. 932. "Being dilatory, such motion must be prosecuted with dili- gence," and "if defendant relies on the fact that the action is brought in the wrong county, he ought to move for, or at least de- mand, a transfer on his first ap- pearance in the cause," is said in Cook V. Pendergast, 61 Cal. 79. Failure for ^ore than eighty days after entering appearance to move for a change of venue to proper county is fatal to right to change of venue. — Burton v. Gra- ham, 36 Colo. 199, 84 Pac. 978. Trial on merits had, objection can not be taken. — Johnston v. Wadsworth, 24 Ore. 494, 34 Pac. 13. 10 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427. 11 Herd v. Tuohy, 133 Cal. 55, 60, 65 Pac. 139; Smalley v. Peck- ham Co. (George C), 175 Cal. 146, 165 Pac. 438; Burton v. Graham, 36 Colo. 199, 84 Pac. 978; John- ston V. Wadsworth, 24 Ore. 494, 34 Pac. 13; White v. Rio Grande W. R.' Co., 25 Utah 346, 71 Pac. 593. 446 ch. XV.] OBJECTIONS WAIVER, ETC. § 357 ing for a change of the place of trial. ^- Thus, it has been held that application for a change of the place of trial to the proper county will come too late after demurrer to the complaint or to the amended complaint ;^^ after answer to the merits ;^^ seven months after denial of a similar motion ;^^ and after trial on the merits.^^ Subsequent change of the place of trial to the proper county, before answer, cures the defect and avoids the objection. ^'^ 12 Herd v. Tuohy, 133 Cal. 55, 60, 65 Pac. 139. 13 Jones V. Frost, 28 Cal. 245, 246; Cook v. Pendergast, 61 Cal. 72; Templeton v. Lloyd, 59 Ore. 52, 115 Pac. 1068; Scott v. Hoover, 99 Fed. 248. Application made at time of de- murrer can not be by the court postponed until the answer is filed.— Heald v. Hendy, 65 Cal. 621, 622, 4 Pac, 27. 14 Clarke v. Lyon County, 8 Nev. 181, 186. Divorce case, defendant does not waive right to demand change of venue, on ground of convenience of witnesses, by answering. — Sheckles v. Sheckles, 3 Nev. 404, 406. 15 Smith v. Pelton Water Wheel Co., 151 Cal. 399, 401, 90 Pac. 933. 16 Johnston v. Wadsworth, 24 Ore. 494, 34 Pac. 13. 17 Weiss V. Bethel, 8 Ore. 522, 447 CHAPTER XVI. PLACE OF TRIAL AS DETERMINED BY DOMICILE OR RESIDENCE OF PARTIES. § 358. In general. § 359. In California. § 360. As to rights of plaintiffs — In general. § 361. Co-plaintiffs. § 362. Right to sue in different counties — Election. § 363. As to rights of defendants — In general. § 364. Makers and indorsers : Principals and sureties. § 365. Materiality of resident defendant. § 366. Misjoinder — In general. § 367. Dismissal as to resident defendant. § 368. Joinder of real and personal actions. §369. "Domicile" or "residence" for purposes of action — In general. § 370. In California. § 371. In other states. § 372. Of corporation — In general. § 373 In California. § 374. In other states — Colorado. § 375. Idaho. § 376. Nebraska. §377. Oregon. §378. South Dakota. §379. Utah. § 380. Washington. § 381. Nonresident and absconding defendants — In generaL § 382. A nonresident plaintiff. § 383. Illustrations of doctrine. § 384. California doctrine. § 385. Foreign corporations. § 386. Illustrations of prevailing doctrine. § 387. Objections and exceptions — In general. § 388. Estoppel and waiver. 448 en. XVI.] TRIAL AT DOMICILE. §§ 358, 359 <§, 358. In general. We have already seen that, at com- mon law,^ in the case of transitory actions,- the venue might be laid in any county the plaintiff might select for that purpose.^ In this country, in almost if not quite all the jurisdictions, and in all jurisdictions with a reformed judicature, the matter of the venue in residentiary^ actions is regrilated entirely by statute of the particular jurisdic- tion, wliich must be consulted and followed. The general rule may be said to be that the trial may be had in any county in which the parties, or any one of them, reside at the time of the commencement of the action ; although a large number of the jurisdictions require that the action shall be commenced and the trial had in the county in which the defendant, or one of the defendants, reside at the time of the commencement of the action. § 359. In Californl^.. By statutory provision in California,^ — and the same is true in a large number of jurisdictions having the reformed system of judicature, — rJl the actions not provided for otherwise, as discussed in detail in the preceding chapter, must be tried in the county in which the defendants, or some of them, reside or are domiciled at the time of the commencement of the action, ^ 1 See, ante, §§ 180, 210. of, 97 Cal. 135, 31 Pac. 845; Bailey 2 As to transitory actions, see, v. Cox, 102 Cal. 333, 36 Pac. 650; ante, §§ 320, 322. Brady v. Times-Mirror Co., 106 3 See 1 Chitty on Pleading (16th Cal. 56, 39 Pac. 209; White v. Am. Ed.), p. 282; Stephen on Adler, 5 Cal. Unrep. 215, 42 Pac. Pleading, p. 325. 1070; Bonestell v. Curry, 153 Cal. 1 See Kerr's Cyc. Cal. Code Civ. 418, 420, 95 Pac. 887; Anaheim Odd Proc, 2d ed., §395; Consolidated Fellows' Hall Assoc, v. Mitchell, 6 Supp. 1906-1913, p. 1425. Cal. App. 431, 92 Pac. 331; Krogh 2 ALA. — Montgomery Iron Works v. Pacific Gateway & Devel. Co., 11 V. Eufaula Oil & Fertilizer Co., 110 Cal. App. 237, 104 Pac. 698. COLO. Ala. 395, 20 So. 300. GA.— Jordan —Price v. Lucky Fork Gold Min. V. Jordan, 16 Ga. 446. CAL.— Loehr Co., 56 Colo. 163, 136 Pac. 1021. V. Latham, 15 Cal. 418; Armstrong MINN.— Smith v. Barr, 76 Minn. V. Superior Court, 63 Cal. 410; Ah 513, 79 N. W. 507. MONT.— Mc- Fong V. Sternes, 79 Cal. 30, 21 Pac. Donnell v. Collins, 19 Mont. 372, 381; Smith v. Smith, 88 Cal. 572, 48 Pac. 549; State ex rel. Schatz 26 Pac. 356; Buck v. Eureka, City v. District Court, 40 Mont. 173, 105 I Code PI. and Pr.— 29 449 § 360 CODE PLEADING AND PRACTICE. [Pt. I, with an exception in those cases in which none of the defendants are residents of the state,^ and also in those cases in which the action is (1) for an injury to the person or property, (2) for death from wrongful act, or (3) for damages for injuries from negligence;^ in either of which latter cases the trial may be had in the county in which the act or injuries complained of occurred,'^ even in those cases in which the defendant is a private corporation/' Under those statutes which provided that the defendant shall be sued or the trial had in the county in which he resides or has his domicile,"^ the defendant's right is not a technical one, but a substantial one of importance, which is not to be taken away except in strict compliance with the law.^ § 360. As TO RIGHTS OF PLAINTIFFS In GENERAL. Ill a number of the jurisdictions having the reformed system of judicature, and especially in those jurisdictions follow- ing the provisions of the New York Code of Civil Pro- cedure regulating the venue in the residentiary class of actions, an action belonging to this class of actions is to be brought in the county of the residence or domicile of Pac. 554. N. M.— Oeck v. Shep- 4 Kerr's Cyc. Cal. Code Civ. herd, 1 N. M. 346. OKLA.— Hen- Proc, 2d ed., §395; Consolidated nessey First Nat. Bank v. Hesser, Supp. 1906-1913, p. 1425. 14 Okla. 115, 77 Pac. 36; Burke v. ^ j^ Malaby, 14 Okla. 650, 78 Pac. 105; -. ,,. „. -n /^i,i„ coQ Qi 6 As to corporations defendants, Mouldin V. Rice, 19 Okla. 589, 91 '^ Pac. 1032. UTAH— Konold v. Rio ^ee, post, §§ 372. 385, 386. Grande W. R. Co., 16 Utah 151, 51 "' As to domicile or residence for Pac. 256; Snyder v. Pike, 30 Utah the purposes of an action, see, 102, 83 Pac. 692. post, §§ 369-380. Action for conversion of per- 8 Jacobson v. Hosmer, 76 Mich. sonal property on substitution of 234 42 N W 1110 Statute authorizing suit in party claiming the property, trial to be had in county where substi- tuted defendant resides.-Price v. county other than that of resi- Lucky Fork Gold Min. Co., 56 Colo. dence of defendant, applies to pro- 163 136 Pac. 1021. t>ate courts exercising the jurisdic- 3 As to nonresident defendants, tion In actions at law. — Cody v. see, post, §§ 381 et seq. Raynaud, 1 Colo. 272. 450 ch. XVI.] RIGHTS OF PLAINTIFF AS TO TRIAL §360 the parties, or of either of them, at the time of the com- mencement of the action.^ Under such statutes the plain- tiff has a right to an election- in which county he will bring his action, where the parties reside in different counties;^ and where the plaintiff resides in the county in which the action is commenced a motion to change the place of trial to another county, on the ground that the venue is improperly laid, is unsustainable.* In the case of an action for a divorce, brought by a wife living sepa- rate and apart from her husband, for his fault, the pro- ceeding may be commenced in the county in which the plaintiff wife resides, although that comity is not the 1 New York Code of Civil Pro- cedure 1848, § 104; see present § 984. See: COLO.— Thomas v. Colorado Nat. Bank, 11 Colo. 511, 19 Pac. 501; Denver & Rio Grande R. Co., 8 Cal. App. 158, 45 Pac. 285. M I C H.— Atkins v. Borstter, 46 Mich. 552, 9 N. W. 850. MO.— Chouteau v. Allen, 70 Mo. 290; Thompson v. Bronson, 17 Mo. App. 456; Allen v. St. Louis, I. M. & S. R. Co., 38 Mo. App. 294. MONT.— Yore v. Murphy, 10 Mont. 304, 25 Pac. 1039. N. Y.— Zeimer v. Raf- ferty, 18 App. Div. 397, 46 N. Y. Supp. 345; Shepard & M. Lumber Co. v. Burleigh, 27 App. Div. 99, 50 N. Y. Supp. 135; Hirshklnd v. .Mayer, 91 App. Div. 416, 86 N. Y. Supp. 836; Hislop v. Taaffe, 141 App. Div. 40, 125 N. Y. Supp. 614; Talmadge v. Third Nat. Bank, 27 Hun 61; affirmed, 91 N. Y. 531; Gorman v. South Boston Iron Co., 32 Hun 71; Rossie Iron Works v. Westbrook, 59 Hun 345, 13 N. Y. Supp. 141; Shepard v. Squire, 76 Hun 598, 23 N. Y. Civ. Proc. Rep. 403, 28 N. Y. Supp. 218; Banks v. Selden, 13 How. Pr. 163; Cincin- nati, H. & D. R. Co. v. Ives, 21 N. Y. St. Rep. 67, 3 N. Y. Supp. 895. N. C— Wood v. Morgan, 118 N. C. 749, 24 S. E. 522. Action on note, in Colorado, tri- able in county where payable under Code Civ. Proc, § 1S83, but where suit is brought in the county of the plaintiff's residence, although the defendant resides and the note is payable in another county, where the defendant elects to stand upon the question of jur- isdiction and defaults, a default judgment may be entered against him in the county where action brought. — Thomas v. Colorado Nat. Bank, 11 Colo. 511, 19 Pac. 501. — I n Oregon suit must be brought and the action tried in the county of the defendant's resi- dence. — Dunham v, Shindler, 17 Ore. 256, 20 Pac. 326. 2 As to right to sue in more than one county, see, post, § 362. 3 See Talmadge v. Third Nat. Bank, 27 Hun (N. Y.) 61; affirmed, 91 N. Y. 531. •t Hirshkind v. Mayer, 91 App. Div. (N. Y.) 416, 86 N. Y. Supp. 836. 451 §361 CODE PLEADING AND PRACTICE. [Pt. I, place of residence of the husband,^ notwithstanding the legal fiction that the wife's domicile follows that of the husband,® subject to the defendant's right to a change of the place of trial/ §361. Co-plaintiffs. The provisions in such stat- utes requiring the commencement of the trial of the action in the county in which the parties, "or one of the par- ties," reside and is domiciled at the time of the com- mencement of the action, does not mean that all of the plaintiffs shall reside in the county in which the action is commenced, where commenced in the county of the resi- dence of the plaintiffs instead of in the county of the residence of the defendants, if any one of them resides in such county it is sufficient to carry venue ;^ that is to say. 5 See Kerr's Cyc. Cal. Civ. Code, § 128. See: ILL.— Derby v. Derby, 14 111. App. 645. IND.— Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335. MASS. — Jenney v. Jenney, 14 Mass. 231; Harteau v. Harteau, 31 Mass. (14 Pick.) 181, 25 Am. Dec. 372; Brett v. Brett, 46 Mass. (5 Mete.) 233; Shaw v. Shaw, 98 Mass. 158; Blackinton v. Blackin- ton, 141 Mass. 432, 55 Am. Rep. 484, 5 N. E. 830; Burtis v. Burtis, 161 Mass. 508, 37 N. E. 740. NEB. — Dickman v. Birkhauser, 16 Neb. 686, 21 N. W. 396. N. J.— Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533. N. Y. — Vence v. Vence, 15 How. Pr. 497; affirmed, 15 How. Pr. 576, note. N. C. — Schonwald v. Schon- wald, 55 N. C. (2 Jones Eq.) 367. PA.— Cain v. Cain, 5 Pa. Co. Ct. Rep. 669; Reed v. Reed, 30 Pa. Super. Ct. Rep. 229. R. I.— Ditson V. Ditson, 4 R. I. 87. WIS.— Dutcher v. Dutcher, 39 Wis. 651. As to wife's domicile for pur- poses of a divorce, see note 16 L. R. A. 497. 452 6 See Loker v. Gerald, 157 Mass. 42, 34 Am. St. Rep. 252, 16 L. R. A. 497, 31 N. E. 709. Burden of proof to show deser- tion by the husband rests on wife, otherwise her domicile is taken to follow that of her husband. — Ken- drick v. Kendrick, 188 Mass. 555, 74 N. E. 598. Wilfully remaining away from husband, the rule of law is differ- ent.— Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, affirming 9 Hun 622. 7 Warner v. Warner, 100 Cal. 11, 15, 34 Pac. 523. California Civil Code, § 128, must be read in connection with §§ 395 and 397 of the Code, of Civil Pro- cedure. Section 128 of Civil Code limits the place of commencement of actions for divorce; §§395 and 397 of Code Civ. Proc. provide the place of trial for such actions. — Warner v. Warner, 100 Cal. 11, 15, 34 Pac. 523. 1 Shepard v. Squire, 76 Hun o ch. XVI.] SUING IN DIFFERENT COUNTIES. § 362 where there are two or more plaintiffs, they may elect to commence the action and to have it tried in any county in which any one of such plaintiffs resides and is domiciled at the time of the commencement of the action.- In those cases where the question to be litigated is one of common or general interest to a large number of persons and, under the statutory provision,^ one or more may sue and prosecute for the benefit of all, a person of the class of persons interested and for whose benefit the action is prosecuted, but who is not named in the complaint, even brought in as a party by order of the court, can not be regarded as a party to the action on the hearing of a motion for the change of the place of trial. ^ '^ 362. Right to sue in different counties — PjLec- TioN. "We have already discussed the right to sue in dif- ferent counties, election and what constitutes an election, in one of its phases,^ and it remains but to add here that, in residentiary actions, where the statutory provision as to venue contains an exception, this exception gives to the plaintiff an election as to the county in which his action shall be commenced and tried;- where necessary defen- dants reside in different counties, plaintiff may elect in which county he ^vill sue f and the plaintiff may also have an election in those cases in which the defendant lives alternately in two or more counties, it being uncertain in which he has his legal residence, and he has not complied with the law requiring him to file a declaration as to in (N. Y.) 598, 23 N. Y. Civ. Proc. 631, 45 S. W. 376, affirming In part Rep. 403, 28 N. Y. Supp. 218. and reversing in part 44 S. W. 198. 2 Brown v. Bache, 66 App. Div. 3 as New York Code Civ. Proc, (N. Y.) 367, 72 N, Y. Supp. 687; § 443 4 Brown v. Bache, 66 App. Div. (N. Y.) 367, 72 N. Y. Supp. 687. Mills V. Starin, 119 App. Div, (N. Y.) 336, 39 N. Y. Civ. Proc. Rep. 338, 104 N. Y. Supp. 230; Forehand v. Collins, 1 Hun (N. Y.) ^ ^^®' ^°*®' § ^^2- 316; Shepard v. Squire, 76 Hun 2 Carro v. Carro, 60 Tex. 395. (N. Y.) 598, 23 N. Y. Civ. Proc. ^ Holm v. Colman, 89 Wis. 233, Rep. 403, 28 N. Y. Supp. 218; Fos- 61 N. W. 767. ter v. Gulf, C. & S. R. Co., 91 Tex. See, also, post, §§ 364-366. §363 CODE PLEADING AND PRACTICE. [Pt. I, which he has established his residence ;^ or where a defen- dant has recently removed from one county to another and is guilty of the same delinquency/^ Where the plain- tiff brings suit in the wrong county the defendant, by his acts and conduct, may submit himself to that venue," waiving his right to object and become estopped to move for a change of place of trial on account of a wrong venue."^ § 363. As TO EIGHTS OF DEFENDANTS In GENEEAL. Wc have already seen that in California, and the same is true in other states with similar statutes, — residentiary actions are to be tried in the county in which the defendants, or one of them, reside at the time of the commencement of the action ;^ but the right of the defendant to be tried in 4 Crawford v. Read, 9 Rob. (La.) 243; Taylor v. Beach, 17 La. Ann. 61; Evans v. Payne, 30 La. Ann. 498. 5 Berry v. Gaudy, 15 La. Ann. 533; Ausbacher v. De Nevue, 45 La. Ann. 988, 13 So. 396; Vallee v. Hunsberry, 108 La. 136, 32 So. 359. 6 Tolliurst V. Howard, 94 App. Div. (N. Y.) 439, 88 N. Y, Supp. 235. 7 As to objections and excep- tions, waiver and estoppel, see, ante, § 355, post, §§ 387, 388. 1 Ante, §359. See: CAL.— Loehr V. Latham, 15 Cal. 418; Watkins v. Degener, 63 Cal. 500; Hershfield v. Sevier, 77 Cal. 448, 19 Pac. 819; Banta v. Wink, 119 Cal. 78, 80, 51 Pac. 17; Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034; Aisbett v. Para- dise Mountain Min. «S; Mill. Co., 21 Cal. App. 267, 131 Pac. 330. GA.— Williams Co. (J. P.) v. Bunn, 114 Ga. 707, 40 S. E. 738; Waycross Air Line R. Co. v. Offerman & W. R. Co., 114 Ga. 727, 40 S. W. 738; Cox V, Strickland, 120 Ga. 104, 47 S. E. 912; McGarity v. Simpson, 95 S. E. 968; Brock v. Brantley Co. (A. P.), 96 S. E. 176. IND.— Indiana Nitroglycerine & Torpedo Co. V. Lippencott Glass Co., 165 Ind. 361, 72 N. E. 649. KAN.— Rullman v. Hulse, 33 Kan. 670, 7 Pac. 210. KY.— Hendrix v. Nes- bitt, 96 Ky. 652, 29 S. W. 621; Swift's Exr. V. Donahue, 104 Ky. 137, 46 S. W. 683; Ferguson v. Moore, 19 Ky. L. Rep. 1681, 44 S. W. 113. MO.— Stillwell v. Craig, 58 Mo. 24; Cooney v. Pryor (Mo. App.), 203 S. W. 629. NEB.— First Nat. Bank v. Gibson, 69 Neb. 21, 94 N. W. 965. OKLA.— First Nat. Bank v. Hesser, 14 Okla. 115, 77 Pac. 36; Friedman v. First Nat. Bank, 39 Okla. 486, 49 L. R. A. (N. S.) 548, 135 Pac. 1069. TEX.— Cobb V. Barber, 92 Tex. 309, 47 S. W. 963; Scottish-American Mortgage Co. v. Davis (Tex. Civ. App.), 72 S. W. 217; judgment modified on another point in 96 Tex. 504, 97 Am. St. Rep. 932. 74 S. W. 17; Walhoefer v. Hobgood, 454 Ch. XVI.] RIGHTS OF DEFENDANT AS TO TRIAL,. §363 the county of his residence is subject to the discretionary 18 Tex. Civ. App. 291, 44 S. W. 566; Dublin Cotton-Oil Co. v. Rob- inson (Tex. Civ. App.), 50 S. W. 1054; Fermier v. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 699; Lind- j sey V. State, 27 Tex. Civ. App. 540, 66 S. W. 332; Cruz v. Texas Glass & Paint Co. (Tex. Civ. App.), 199 S. W. 819; Kunz v. Ragsdale (Tex. Civ. App.), 200 S. W. 269; Houston & T. C. R. Co. v. Ennis, City of (Tex. Civ. App.), 201 S. W. 256. WASH. — Kennedy v. Derrick- son, 5 Wash. 289, 31 Pac. 766; McMaster v. Advance Thresher Co., 10 Wash. 147, 38 Pac. 760. WIS.— Pereles v. Albert, 12 Wis. 666. Assault upon passenger by rail- road conductor and another, action against the railroad corporation and such other person is properly brought and tried in the county of the residence of such other. — Cen- tral of Georgia R. Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989. See same principle Aisbett V. Paradise Mountain Min. & Mill. Co., 21 Cal. App. 267, 131 Pac. 330. Co-defendant can not sever where other defendant resides in county where action is brought. — Walhoefer v. Hobgood, 18 Tex. Civ. App. 291, 44 S. W. 566. Conversion of property charged, action may be maintained in the county of the residence of any of the defendants charged. — Cobb v. Barber, 92 Tex. 309, 47 S. W. 963. Corporation and another defen- dants, — e. g., action to declare in- valid an assessment upon stock, — action properly brought in county of residence of individual defen- dant, although that county is one other than that in which the cor- poration has its principal office and place of business. — Aisbett v. Paradise Mountain Min. & Mill. Co., 21 Cal. App. 267, 131 Pac. 330. See same principal Central of Georgia R. Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989. Fraudulently conveyed funds sought to be reached, action may be maintained where the debtor resides and the transferee served in another county. — First Nat. Bank v. Gibson, 69 Neb. 21, 94 N. W. 965. Joint obligors may be sued in the county in which either re- sides.— First Nat. Bank v. Hesser, 14 Okla. 115, 77 Pac. 36. Husband and wife sued for nec- essaries furnished wife living sep- arate and apart from her husband, may be maintained in the county of the residence of the wife. — Fer- mier V. Brannan, 21 Tex. Civ. App. 543, 53 S. W. 699. As to wife's domicile, and where separate from that of her husband, see, ante, § 360, footnotes 5 and 6. Master and servant properly joined as defendants in action for damages for injuries sustained by negligence of servant in conduct- ing master's business, and action may be brought in the county of the residence of either. — Indiana Nitroglycerine & Torpedo Co. v. Lippencott Glass Co., 165 Ind. 361, 72 N. E. 649. Nonresidence of some defen- dants does not deprive defendants residing within state of right to transfer of place of trial to county in which they, or some of them. 455 §363 CODE PLEADING AND PRACTICE. [Pt.I, power of the court to change the place of trial.^ Thus, where two wrongdoers reside in different counties, suit against both may be maintained in the county in which either resides f and where an individual is properly joined with a railroad corporation as defendants in an action to prevent the corporation from removing division head- quarters from a town at which they had been established under contract, the venue is properly laid in the county of the residence of the individual defendant;^ but where the defendant in the county of whose residence the venue is laid is improperly joined as a defendant the rule will be different.^ It has been said that actions to recover damages for injuries to the person*^ and actions for creat- ing a private nuisance are governed by the same rule, being actions for injury to the person f but in California such actions are governed by statutory provision, and may be brought in the county in which the act or injury complained of took ijlace.^ We have already seen that in reside. — Banta v. Wink, 119 Cal. 78, 80, 51 Pac. 17. Railroad defendants within the rule. — Waycross Air Line Co. v. Offerman & W. R. Co., 114 Ga. 727, 40 S. E. 738. Real estate broker suing for commission can not join the ven- dee, residing in another county. — Scottish-American Mortgage Co. v. Davis (Tex. Civ. App.), 72 S. W. 217; judgment modified on another point in 96 Tex. 504, 97 Am, St. Rep. 932, 74 S. W. 17. Surety's action" for contribution against heirs and devisees of co- surety, may be brought and tried in the county of the residence of any of the latter. — Swift's Exr. v. Donahue, 104 Ky. 137, 46 S. W. 683. Warehouseman claiming lien on crop may join vendor and pur- chaser and bring suit in the county of residence of either.— Ferguson V. Moore, 19 Ky. L. Rep. 1681, 44 S. W. 113. 2 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §397; Consolidated Supp. 1906-1913, p. 1429. 3 McPhaul v. Fletcher, 111 Ga. 878, 36 S. E. 938; Central of Geor- gia R. Co. V. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989; Cooper V. Oglethrope Sav, & Trust Co., 147 Ga. 570, 94 S. E. 1006. 4 Houston & T. C. R. Co. v. Ennis, City of (Tex. Civ. App.), 201 S. W. 256. 5 Kunz V. Ragsdale (Tex. Civ. App.), 200 S. W. 269. 6 Mclvor V. McCabe, 16 Abb. Pr. (N. Y.) 319, 26 How. Pr. 257. 7 Ray V. Sellers, 62 Ky. (1 Duv.) 254. s Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. 456 ell. XVI.] MAKERS, ETC. — PRINCIPALS, ETC. § 364 an action for a divorce brought by a woman living sepa- rate and apart from her husband for his fault may be brought in the county of the wife's residence, but the defendant has a right to have the place of trial changed to the county in which he resides.'-^ As respects transitory actions generally it may be said that any county where service of summons may be had is a proper county. Ser- vice within the county where the action is brought is essential to jurisdiction, but a voluntary appearance is equivalent to personal service.^" In quo warranto, the people being a party, their residence extends to every • county.^ ^ In proceedings for a mandamus to compel the execution of a sheriff's deed to a redemptioner, the action may be commenced in the county where the relator re- ' sides. ^^ The writ of habeas corpus, however, should not= issue to run out of the county, unless for a good cause sliown.^^ "§ 364. Makers and indorsers : Principals and SURETIES. The rule as to the proper venue above an- nounced applies in those cases in which the parties defen- dant are maker and indorser, or principal and surety, on negotiable paper and other written obligations, and the action is properly commenced and tried in the county in which either of the defendants resides at the time of the commencement of the action;^ and where there is more 9 See, ante, §360. Weeks, 122 Ga. 70, 49 S. E. 809; 10 Brown v. Deschutes Bridge Stilwell v. Craig, 58 Mo. 24; Pear- Co., 23 Ore. 7, 35 Pac. 177. son v. Kansas Mfg. Co., 14 Neb. 11 People V. Cook, 6 How. Pr. 211, 15 N. W. 346; First Nat. Bank (N. Y.) 448. V. Hesser, 14 Okla. 115. 77 Pac. 36: 12 McMillan v. Richards, 9 Cal. Steele v. Hudson, 30 Okla. 518, 120 365, 420, 70 Am. Dec. 655. Pac. 616; Holm v. Colnian, 89 Wis. 13 Ellis, Ex parte, 11 Cal. 222, 233, 61 N. W. 767. 225; Deny, Ex parte, 10 Nev. 214; Drawee of draft agreeing to ac- Lynn, Ex parte, 19 Tex. App. 122. cept on presentation of draft by an 1 Austin V. Raidford, 61 Ga. 125; assignee thereof renders the maker Lumpkin v. Galloway, 101 Ga. 226, and drawee jointly liable on the 28 S. E. 622; Heard v. Tappan, 116 draft to the assignee thereof, and Ga. 930, 43 S. E. 375; Saussy v. suit may be brought in the county 457 §365 CODE PLEADING AND PRACTICE. [Ft. I, than one indorser or surety, the action may be commenced and tried in the county of the residence of any of the indorsers or sureties ;- but where an action is commenced against a principal and his surety in a county other than the county in which such surety resides, it must appear that the county in which the action is brought is the county of the residence of the principal, in order to con- fer jurisdiction on the court over the surety.^ §365. Materiality of resident defendant. In those cases in which there are two or more defendants, each residing in a different county, or all but one residing in a different county than the one in which the action is brought, the defendant resident in the county in which the action is commenced must be a material and necessary defendant; that is to say, a defendant who is in reality interested in the subject-matter of the action antagonis- tically to the plaintiff,^ against whom relief is prayed in in which the maker resides. — Hull V. First Guaranty State Bank of Overton (Tex. Civ. App.), 199 S. W, 1148. Indemnity bond sued at county of residence of principal, sureties residing in another county are en- titled to have trial of cause re- moved to county of their resi- dence, under Colo. Code, § 27. — Brewer v. Gordon, 27 Colo. Ill, 83 Am. St. Rep. 45, 59 Pac. 404. Maker and indorser sued in county of residence of indorser, who makes no defense and suffers default to be entered, maker can not have service on him set aside because he is not a resident of the county in which action brought. — Steele v. Hudson, 30 Okla. 518, 120 Pac. 616. Principal and guarantor sued in county of residence of latter, fact guarantor has been released does not affect the venue. — Slaughter v. Moore, 17 Tex. Civ. App. 233, 42 S. W. 372. 2 Modoc County v. Madden, 136 Cal. 134, 68 Pac. 491. 3 County treasurer and surety sued in court of county in which treasurer-defendant defaulted, and service made on such defaulting treasurer in another county, the security being a corporation with no office or officer in the county of suit upon whom service could be made, no jurisdiction over the surety attached without a showing that the county in which the action was brought was the county of residence of the defaulting treas- urer. — Whitman County v. Raley, 49 Wash.- 150, 94 Pac. 906. 1 See Waddell v. Lanier, 54 Ala. 440, 442; Read v. San Diego Union Co., 6 Cal. Unrep. 703, 65 Pac. 567; McLean v. Farmers' H i g h 1 i n e 458 eh. XVI.] MATERIALITY OF DEFENDANT; §365 tlie complaint- and a judgment or decree sought;^ a neces- sary and indispensable party,"* as distingiiished from a mere proper party.^ Not only this, the liability must be Canal & Reservoir Co., 44 Colo. 184, 98 Pac. 16; Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080. Resident joined for jurisdiction merely, and not in good faith to recover a judgment against such resident defendant, but to enable the plaintiff to recover a judgment in the jurisdiction of the venue against a nonresident defendant, this will not authorize a service upon another defendant out of the jurisdiction of the venue, and such a service out of the jurisdiction will not confer upon the court jur- isdiction over such nonresident de- fendant. — Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479. Test in determining materiality of resident defendant is in ascer- taining whether he is a bona fide defendant; one having an interest in the action and the determina- tion thereof adverse to the plain- tiff.— Barry v. Wachosky, 57 Neb. 534, 77 N. W. 1080. 2 ALA. — Brierfield Coal & Iron Co. V. Gay, 106 Ala. 615, 17 So. 618. ARK. — Hancock v. Gibson, 72 Ark. 322, 79 S. W. 1061. COLO.— Mc- Lean v. Farmers' Highline Canal & Reservoir Co., 44 Colo. 187, 98 Pac. 16. GA.— Sims v. Sims, 50 Ga. 572; Smith v. Croker, 74 Ga. 390. NEB.— Dunn v. Haines, 17 Neb. 560, 23 N. W. 501; Barry v. Wa- chosky, 57 Neb. 534, 77 N. W. 1080. OHIO— Allen v. Miller, 11 Ohio St. 374; Thompson v. Massie, 41 Ohio St. 307. TENN.— Simonton v. Por- ter. 60 Tenn. (1 Baxt.) 213. TEX.— Pool v. Pickett, 8 Tex. 122. V. Lewis V. Elrod, 38 Ala. 17, 21. 4 As to distinction between n-ec- essary and indispensable, see Becker v. Hopper, 23 Wyo. 20P, Ann, Cas. 191SB, 35, 147 Pac. 1085, 1088. Surviving partner resident in county in which personal represen- tative of a deceased member of a partnership for a partnership ac- counting is a necessary party, and where joined with a nonresident defendant, the fact that he unites with such nonresident defendant in an application for a change of the place of trial to the county of the residence of the latter, on the ground that the resident defen- dant, not having possession of any of the property or assets of the partnership, is merely a nominal party, does not alfect the right of the plaintiff to have the cause tried in the county of the residence of the surviving partner. — O'Brien v. O'Brien, 16 Cal. App. 193, 116 Pac. 696. 5 Hartwell v. Lehman, 72 Ala. 344, 346; Taylor v. Lytle, 26 Idaho 97, 141 Pac. 92. Corporation having no interest, though a proper, is not a necessary party defendant in an action to compel a shareholder to transfer shares in accordance with an al- leged agreement, and where the action is commenced in the domi- cile of the corporation the share- holder has a right to a change of the place of trial to the county of his residence. — Sayward v. Hough- ton, 82 Cal. 628, 23 Pac. 120. Where the corporation has or claims an interest in the subject- 459 § 365 CODE PLEADING AND PRACTICE. [Pt- I, joint and several, not a different and severable liability.*' But the fact that the plaintiff has a right to maintain an action against the principal defendant, alone, for a part of the relief to which he is entitled, does not warrant a change of the place of the trial of the cause of action against all of the persons responsible to the plaintiff in the cause of action stated in the complaint.'^ The test on a motion for a change of the place of trial of a cause is to be made by ascertaining who are necessary parties to the action as the cause of action is stated in the complaint, and to enable the plaintiff to obtain all the relief prayed for in his complaint. If one of the persons thus a neces- sary party resides within the county in which the action was commenced, or resided there at the time of the com- mencement of the action, the venue is properly laid.* Where an owner and another operating a combined- harvester and engine negligently destroy by fire the grain of the plaintiff on an adjoining property, such other is a necessary party Tsdth the owner of the combined-harvester and engine in a suit for damages, and such suit may be brought in the county in which such other person resides ; the fact that the machinery was defective is immaterial on an application for a change of the place of trial to the county in which the owner resides.^ Where the only de- fendant resident in the county in which the suit was com- menced is an unnecessary party, the necessary defendant residing elsewhere is entitled to have the trial of the cause transferred to the county of his residence.^^ And a matter of the litigation, the rule is Joinder of all defendants In de- otherwise.— Hellman V. Logan, 148 mand for change of place of trial Cal. 58, 82 Pac. 848. to the county of the residence of 6 Penney v. Bryant, 70 Neb. 127, ^-^^ ^^^^^ ^j ^1,^ machine does not 9G N. W. 1033. require the court to grant the re- 7 Hellman v. Logan, 148 Cal. 58, quest for such change of place of trial. — Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034. 82 Pac. 848. 8 Hellman v. Logan, 148 .Cal. 58, 82 Pac. 848. & Quint V. Dimond, 135 Cal. 572, lo Sayward v. Houghton, 82 Cal 67 Pac. 1034. 629, 23 Pac. 120, 460 eh. XVI.] MATERIALITY, ETC. — MISJOINDER. § 366 suit on an obligation commenced in the county in which it was to have been performed, will not warrant joining as a defendant a person nonresident of the county who was not a party to the obligation.^ ^ AVhere the only defendant against whom facts stated in the complaint will justify a judgment resides in a county other than the one in which the action is brought, such defendant is entitled to a change of the place of trial to the county in which he resides.^- A defendant's right to a change of the place of trial to the county of his residence is to be determined by the allegations in the complaint at the time of filing the written demand and making the motion ; his right is not taken away by the allegations made in an amended complaint setting up a cause of action against a resident defendant, filed after an application for a change of venue is made.^^ Where a suit is brought on the bond of joint administrators and their sureties in the county of the residence of the administrator against whom no judgment can be recovered, the sureties on the bond residing in another county, the court acquires no juris- diction over the sureties. ^^ In a case in which three per- sons are joined as defendant, and the two residing in the county in which the action is conunenced are proper par- ties plaintiff under the allegations in the complaint, in the absence of an allegation that the resident defendants refused to join in the action as plaintiffs, the nonresident defendant is entitled to a change of the place of trial to the county of his residence. ^^ § 366. Misjoinder — In general. From what has been said in the preceding section respecting the necessity for the resident defendant being a material and necessary defendant, and not merely a nominal one, or a party selected merely for the purpose of laying venue, in order iiBehrens Drug Co. v. Hamil- i4Ross v. Battle, 117 Ga. 877, 45 ton, 92 Tex. 284, 48 S. W. 50. S. E. 252. i2Buell V. Dodge, 57 Cal. 645. i5Read v. San Diego Union Co., 13 Buell V. Dodge, 57 Cal. 645. 6 Cal. Unrep. 703, 65 Pac. 5G7. 461 § 366 CODE PLEADING AND PRACTICE. [Pt. I, to confer jurisdiction on the court over the nonresident defendants, it follows that a misjoinder of parties defen- dant in that no cause of action exists in favor of the plaintiff and against the resident defendant on the facts set out in the complaint/ or a different relief is sought against the resident defendant from that asked against the nonresident defendant, — e. g., legal relief against res- ident defendant and equitable relief against nonresident defendant,- — no jurisdiction will be conferred on the court over the nonresident defendants,^ according to the doc- trine of some of the cases, or does not prevent the non- resident defendant from requiring a change of the place of the trial to the county of his residence,^ according to the doctrine in other jurisdictions. Thus, where joint makers of a promissory note, residing in different coun- ties, are sued upon it before maturity in the county of the residence of one of the makers and a summons issued to the county of the residence of the other maker and prop- erty of the latter attached in the county of his residence, on the ground of an anticipated fraudulent transfer of his property, no attachment having been issued against the resident defendant, and no ground existing therefor, the action was held to have been wrongfully commenced against the resident defendant, and that as the nonresi- dent defendant, against whom alone a cause of action existed, could not be sued out of the county of his resi- dence, the attachment must be dismissed.^ Making per- 1 See Read v. San Diego Union Kan. 598, 5 Pac. 176; rehearing de- Co., 6 Cal. TJnrep. 703, 65 Pac. 567; nied, 33 Kan. 670, 7 Pac. 210. Hamilton v. Du Pre, 111 Ga. 819, 4 Kerr's Cyc. Cal. Code C i v. 35 S. E. 684. Proc, 2d ed., §395, last clause; 2 See Townsend v. Brinson, 117 Consolidated S u p p. 1906-1913, p. Ga. 375, 43 S. E. 748; Ellis v. 1425; Read v. San Diego Union Farmer, 119 Ga. 238, 46 S. E. 105. Co., 6 Cal. Unrep. 703, 65 Pac. 567; 3 Hamilton v. Du Pre, 111 Ga. State ex rel. Campbell v. Superior 819, 35 S. E. 684; Townsend v. Court, 7 Wash. 306, 34 Pac. 1103. Bienson, 117 Ga. 375, 43 S.' C. 748; See, also, authorities cited, post, .Ellis V. Farmer, 119 Ga. 238, 46 § 367, footnote 3. N. E. 105; Rullman v. Hulse, 32 5 RuUman v, Hulse, 32 Kan. 598, 462 Ch. XVI.] DISMISSING RESIDENT DEFENDANT. § 367 sons resident of the county in which the venue is laid, whom the complaint shows are proper parties plaintiff, joined with a defendant residing in another county, con- stitutes a misjoinder of defendants, in the absence of an allegation in the complaint that such resident defendants refused to join as plaintiffs in the action, and the non- resident defendant will be entitled to a change of the place of trial to the county of his residence.® An action for malicious prosecution brought against a principal, in the county of the residence of such principal, and another residing in a different county, if the principal is not liable to the plaintiff on the cause of action stated in the com- plaint, the other defendant can not be held liable because of a want of jurisdiction in the court over him,' according to the rule in some jurisdictions. In a case in which equi- table relief is sought against a nonresident defendant, no such relief being asked against the resident defendant, the latter is improperly joined, and the court acquires no jurisdiction over the nonresident defendant, in some jur- isdictions;^ and in an action, the main object of which is to enforce a trust, the joinder of other persons as defen- dants against whom other relief is sought, but who are not necessary parties to the determination of the question of trust involved, such joinder will not defeat the trustee's right to have the cause tried in the county of his resi- dence.^ § 367. Dismissal as to EEsroENT defendant. In those cases in which there are defendants li\dng in different coimties, and the resident defendants Avero prop- erly joined in the action, the rule has been said to be different from those cases in which there was an improper 5 Pac. 176, rehearing d e n i e d 33 s See: Townsend v. Brinson, 117 Kan. 670, 7 Pac. 210. Ga. 375, 43 S. E. 74S; Ellis v. 6 See Read v. San Diego Union Farmer, 119 Ga. 238, 46 S. E. 105. Co., 6 Cal. Unrep. 703, 65 Pac. 567. 9 State ex rel. Campbell v. 7 Hamilton v. Du Pre, 111 Ga. Superior Court, 7 Wash. 306, 34 819, 35 S. E. 684. Pac. 1103. 463 § 368 CODE PLEADING AND PRACTICE. [Pt. I, joinder of parties defendant, and that their dismissal will not affect the venue or the jurisdiction of the court over the nonresident defendants, and that the latter can not have a change of the place of the trial to the county of their residence,^ for the reason that the rights of the l)arties in respect to the venue are determined by the condition of the things at the time the parties moving appeared ;- but this doctrine has not gonewdthout question in California, where a change of venue may be granted,^ and seems to be against the rule laid down in Georgia,* Kansas,^ and perhaps elsewhere. § 368. Joinder of eeal, and personal actions. We have already seen that the joinder of real and personal causes of action in the same complaint renders the action transitory in its nature;^ and this being true the defen- dant, under the rules above laid down, has a right to have the action tried in the county of his residence, and where there are more than one defendant, in the county in which some one of them resided at the time of the commence- ment of the action.- Thus, where in a suit by a A^fe against her husband to secure maintenance and support who joins other persons as defendants who are the gran- tees in a recorded deed to certain real property executed by the husband to such other defendants, alleging that the deed was never delivered, and seeking to have the cloud 1 Remington Sewing Machine 304, 311, 25 Pac. 1039; Durfee v. Co. V. Cole, 62 Cal. 311, 318. Harper, 22 Mont. 354, 372. 56 Pac. 2 Id.; Wallace v. Owsley, 11 582. Mont. 219, 221, 27 Pac. 790. 4 See, ante, § 366, footnote 3. 3 Sayward v. Houghton, 82 Cal. 628, 629, 23 Pac. 120. See: Read V. San Diego Union Co., 6 Cal. Unrep. 703, 65 Pac. 568; Anaheim Odd Fellows' Hall Assoc, v. Mitch- ^ See, ante, § 333. ell, 6 Cal. App. 568, 92 Pac. 332; 2 Le Breton v. Superior Court, 66 Hannon V. Nuevo Land Co., 14 Cal. Cal. 27, 30, 4 Pac. 777; Smith v. App. 704, 112 Pac. 1105; Bartley v. Smith, 88 Cal. 572, 26 Pac. 356; Fraser, 16 Cal. App. 566, 117 Pac. Warner v. Warner, 100 Cal. 11, 34 685; Yore v. Murphy, 10 Mont. Pac. 523. 464 5 Pullman v. Hulse, 32 Kan. 598. 5 Pac. 176; rehearing denied, 33 Kan. 670, 7 Pac. 210. cli. XVI.] "residence" on "do.micile." § :3G9 on the title removed, the real cause of action being merely ancillary to the cause of action for maintenance and sup- port, the husband is entitled to have the trial of the cause of action removed from the county in which the real prop- erty is situated to the county of his residence.^ §369. ''Domicile" or "residence" for purposes of ACTION — In general. The California statute fixes the venue for all actions of the residentiary class of actions in the county in which the defendants, or some of them, "reside" at the time of the commencement of the action.^ In some jurisdictions the statute provides that the action in all residentiary class of actions shall be commenced and the trial of the cause had in the county in which the defendants, or some of them, are "domiciled." It is to be noted in passing that there is a generic distinction between "domicile" and "residence." The general rule is that to constitute a "domicile" two things must con- cur, namely, (1) present residence, and (2) present inten- tion of making the place of residence the permanent home, and requires both the fact and the fixed intent;- it is the •■} Garrett v. Garrett (— Cal.), 34 Am. St. Rep. 311, 32 N. E. 901; 172 Pac. 587. Phillips v. Boston, City of, 183 1 See Kerr's Cyc. Cal. Code Civ. Mass. 314, 67 N. E. 250. MICH.— Proc, 2d ed., §395; Consolidated High, In re, 2 Doug. 515, 523. Supp. 1906-1913, p. 1425. MINN. — Venable v. Paulding, 19 2 ALA.— Merrill V. Morrissett, 76 Minn. 488, 493; Albion, Town of, Ala. 433, 437. CONN.— Hartford, v. Maple Lake, Village of, 71 Minn. City of, V. Champion, 58 Conn. 268, 503, 74 N. W. 282. MISS.— Haris- 20 Atl. 471. ILL.— Hayes v. Hayes, ton v. Hariston, 27 Miss. 704, 717. 74 111. 312, 316. ME. — Sanders v. 61 Am. Dec. 500; Morgan v. Munes. Getchell, 76 Me. 165, 49 Am. Rep. 54 Miss. 308. MO.— State v. Smith. 606. MD.— Thomas v. Warner, 83 64 Mo. App. 313. N. H.— State v. Md. 14, 34 Atl. 830. MASS.— Put- Moore, 14 N. H. 451, 454; Hart v. nam v. Johnson, 10 Mass. 488, 501; Lindsey, 17 N. H. 235, 244, 43 Am. Lyman v. Fiske, 34 Mass. (17 Dec. 597; Ayer v. Weeks, 65 N. H. Pick.) 231, 234, 28 Am. Dec. 293; 248, 23 Am. St. Rep. 37, 6 L. R. A, Whitney v. Sherborn, Inhabitants 716, 18 Atl. 1108. N. J.— Cadwal- of, 94 Mass. (12 Allen) 111, 114; ader v. Howell, 18 N. J. L. (2 Bangs V. Brewster, Inhabitants of, Harr.) 138, 144; State ex r e 1. Ill Mass. 382, 385; Viles v. Beckett v. Bordentown, Collector Waltham. City of, 157 Mass. 542, of, 32 N. J. L. (3 Vr.) 192. N. Y.— I Code PI. and Pr.— 30 455 §369 CODE PLEADING AND PRACTICE. [Pt. I, place where a person lives and has his home,' or principal home, or where he has his family and principal place of business, from which there is no present intention of remo\'ing or to which there is a present intention of later returning.^ "Residence," technically, means simply a present abiding or dwelling for purposes of business, health, or pleasure, and the like f hence a person's *'domi- Thompson, In re, 1 Wend. 43; Roberts, In re, 8 Paige Ch. 519, 524; Crawford v. Wilson, 4 Barb. 504, 519; Hegeman v. Fox, 31 Barb. 475; Brown v. Ashbough, 10 How. Pr. 260, 263; Cincinnati, H. & D. R. Co. V. Ives, 21 N. Y. St. Rep. 67, 3 N. Y. Supp. 895; Weitkamp v. Loehr, 53 N. Y. Super. Ct. Rep. (21 Jones & S.) 79, 11 N. Y. Civ. Proc. Rep. 36. N. C. — Jones v. Alsbrook, 115 N. C. 46, 20 S. E. 170. PA. — Desesbats v. Berquier, 1 Bin. 336, 2 Am. Dec. 448; Neff V. Neff, 1 Bin. 350; Fry's Election Case, 71 Pa. St. 302, 309, 10 Am. Rep. 698; Carey's Appeal, 75 Pa. St. 201, 205. S. C. — Monroe v. Wil- liams, 37 S. C. 81, 19 L. R. A. 665, 16 S. E. 533. TEX.— Mclntyre v. Chappell, 4 Tex. 187, 197; Hardy v. De Leon, 5 Tex. 211, 235; Blumer, Ex parte, 27 Tex. 734, 738. VT.— Fulham v. Howe, 62 Vt. 386, 20 Atl. 101. VA.— Long v. Ryan, 30 Gratt. 718. WASH. — Dormitzer v. German Sav. & L. Soc, 23 Wash. 132, 62 Pac. 802. W. VA.— White V. Tenant, 31 W. Va. 790, 792, 13 Am. St. Rep. 896, 8 S. E. 596; Andrews v. Mundy, 36 W. Va. 22, 14 S. E. 414; Dean v. Cannon, 37 W. Va. 123, 16 S. E. 444. FED.— Newton v. Mahoning County Commrs., 100 U. S. 562, 588, 25 L. Ed, 710, 712; Chambers v. Prince, 75 Fed. 176; Williams, In re, 99 Fed. 544. Mere intention to go elsewhere to live can not defeat the legal residence in t h e place where a person is for the time being actually domiciled. — G r a h a m v. Graham, 9 N. D. 88, 81 N. W. 44. 3 Harvard College v. Gore, 32 Mass. (5 Pick.) 370; Borland v. Boston, City of, 132 Mass. 89, 95, 42 Am. Rep. 424; Hart v. Lindsey, 17 N. H. 235, 244, 43 Am. Dec. 597; Jones V. Reser (Okla.), 160 Pac. 58; Fry's Election Case, 71 Pa. St. 302, 306, 10 Am. Rep. 698; Ander- son V. Anderson, 42 Vt. 350, 1 Am. Rep. 334; Mitchell v. United States, 88 U. S. (21 Wall.) 350, 352, 22 L. Ed. 584. 4 Zerega, In re, 20 N. Y. Supp. 417. Where family dwells which man maintains, may be said to be his residence or domicile. — J ones v. Reser (Okla.), 160 Pac. 58. 5 CONN.— Salem, Town of, v. Lyme, Town of, 29 Conn. 74, 79; Fairfield, Town of, v. Easton, Town of, 73 Conn. 735, 49 Atl. 200. GA.— Stickney v. Chapman, 115 Ga. 759, 42 S. E. 68. IOWA— Love v. Cherry, 24 Iowa 204; Cohen v. Daniels, 25 Iowa 89. MD.— Shaeffer v. Gilbert, 73 Md. 66, 20 Atl. 434. MASS.— Briggs V. Rochester, Inhabi- tants of, 82 Mass. (16 Gray) 337. MINN.— Keller v. Carr, 40 Minn. 428, 42 N. W. 292. MISS.— Alston V. Newcomer, 42 Miss. 186, 192; 466 ch. XVI.] 'residence -IN CALIFORNIA. §370 cile," for the time being, may be in one place and his ''residence" in another place.^ Some of the cases, how- ever, give to the term ''domicile" as much elasticity as to the term "residence";^ while still other cases hold that the term "domicile," in fixing the venue for the residen- tiary^ class of actions, is used in the sense of "residence."'^ ^370. In California. The word "residence," as used in the California Code of Civil Procedure,^ is con- strued to have the meaning of, and to be synonymous with, the word "domicile," as defined in the preceding section; that is to say, is held to depend upon present intention as well as existing fact, and is the place where one remains when not called elsewhere on business, in quest of health, for pleasure, and the like ; the fixed home of a party as understood by himself, his friends and his Brown v. Crane, 69 Miss. 678, 13 So. 855. N. Y.— Frost v. Brisbin, 19 Wend. 11, 32 Am. Dec. 423; Hart V. Kip, 74 Hun 412, 26 N. Y. Supp. 522, modifies 148 N. Y. 306, 42 N. E. 712; Weitkamp v. Loehr, 53 N. Y. Super. Ct. Rep. (21 Jones & S.) 79, 11 N. Y. Civ. Proc. Rep. 36. S. C. — Bradley v. Lowry, 1 Speer's Eq. 1, 5, 39 Am. Dec. 142. VT.— State V. Cunningham, 75 Vt. 332, 55 Atl. 654. FED.— Pacific Mut. L. Ins. Co. V. Tompkins, 41 C. C. A. 488, 101 Fed. 539; Collins v. Ash- land, City of; 112 Fed. 177. "Residence" distinguished from "domicle." See notes, 48 Am. St. Rep. 712; A n n. C a s. 1915C, 786; L. R. A. 1915A, 406. Has more restricted meaning, technically, than the term 'domi- cile." — Chariton County v. Moberly, 59 Mo. 238, 242; Raymond v. Leish- man, 243 P a. S t. 64, A n n. C a s. 1915C, 780, L. R. A. 1915A, 400, 89 Pac. 791. Gardner v. Board of Education, 5 Dak. 259, 38 N. W. 433; New York, City of, v. Genet, 4 Hun (N. Y.) 487, 489; affirmed, 63 N. Y. 646; Bartlett v. New York, City of, 7 N. Y. Super. Ct. Rep. (5 Sandf.) 44, 47; Williams v. Farmers' Gin 6 Grain Co., 13 Okla. 5, 73 Pac. 269. See note, L. R. A. 1915A, 413. "Residence" means more than a temporary sojourn in a p 1 a c e. — Chinese Tax Cases, The, 14 Fed. 338, 344. 7 See: Woodworth v. Bank of America, 19 Johns. (N. Y.) 391, 417, 10 Am. Dec. 239; Isham v. Gibbons, 1 Bradf. Sur. (N. Y.) 69, 83 ; Denny v. Sumner County Board of Education, 134 Tenn. 468, L. R. A. 1917A, 285, 184 S. W. 14. 8 Brown v. Boulder, 18 Te.x. 431; Pearson v. West, 97 Tex. 238, 77 S. W. 944; O'Connor v. Cook (Tex. Civ. App.), 26 S. W. 1113. 1 Kerr's Cyc. Cal. Code C i v. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. 467 § 371 CODE PLEADING AND PRACTICE. [Pt. I, neighbors.- As defined by tbe decisions of the state, ' ' res- idence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. If a person actually 'lives' in a certain place, with the inten- tion of remaining thfere indefinitely, that place must be said to be his residence. In other words, the abiding is anime manendi when residence is acquired."^ '^Living" in a certain place, with the intention of re- maining there indefinitely, makes that place the person 's ' * residence ' ' ; the abiding being with the intention of re- maining mthin the meaning of the statute requiring resi- dence.^ But a person may "live" in a certain place and still not be a *' resident" thereof within the meaning of the statute.^ Thus, the mere inhabiting at a summer home, or country house, at certain seasons of the year, or at certain times, does not make the party inhabiting such house a resident of the county in w-hich the house is situ- ated, unless he has the present intention of remaining there permanently.^ § 371. In other states. The doctrine of the Cali- fornia cases, as given in the preceding section, finds sup- port in the decisions of other jurisdictions. Thus, in Arizona, ''residence," mthin the meaning of the statute.^ signifies permanent establishment at a certain place, with no present intention or idea of a home elsewhere.- The mere abiding in a place for a definite time, aod until the accomplishment of a specific purpose, unaccompanied by any present intention to remain permanently, or indef- initely, does not constitute a "residence" within the 2 Younger v. Spreckels, 12 Cal. 5 O'Brien v. O'Brien, 16 Cal. App. App. 175. 106 Pac. 895. 103, 116 Pac. 692. „, ^ „._,,. 6 Younger v. Spreckels, 12 Cal. 3 Marston v. ^^ atson. 20 Cal App. ^^^ ^^^ ^^^ 465. 468, 129 Pac. 611; Smihe v. ^ ^riz. Rev. Stats. 1901, par. 3114. Smilie, 24 Cal. App. 420, 426, 141 , g^^^^^ ^ g^^^^^^ ^^ ^^^ ^^^ 40 Pac. 829. L. R, A. (N. S.) 99, 123 Pac. 312; 4 Marston v. Watson, 20 Cal. App. Andrade v. Andrade, 14 Ariz. 379, 368. 465, 129 Pac. 611. 128 Pac. 813. 468 ch. XVI.] "residence" — IN OKLAHOMA, ETC. §371 statute.^ ** Residence " and "usual place of residence," as used in the Kansas statute,^ means an adopted place of habitation as a settled abode; where a person dwells with his family, intending to remain permanently for a time, or to which he intends to return and live when absent f but does not include the place of abode of a man with his ^^ife and family for a transient or temporary purpose, only.^ ''Residence," as used in the constitution of New Mexico,"'' qualifying a person to vote, is said to be a matter of present intention as well as of an existing fact; and that an intention to remain in a certain place as long as the person can secure emplo^Tuent there, or until an opportunity offers to secure more lucrative re- muneration elsewhere, constitutes a permanent residence in that place.* In Oklahoma a ''residence" is said to consist of a settled or fixed abode of a character indicating permanency; an intention to remain permanently, at least for an indefinite time, for business or other purposes, constitutes a residence within the meaning of the statute, making the person's place of abiding his permanent home, at least for the time being, and his principal establish- ment, to which, when he is absent, he has the intention of returning.^ The residence of a man having a family which he maintains is, prima facie, where the family dwells; and a man's acts and conduct are more to be considered in determining the question of a change of 3 Andrade v. Andrade, 14 Ariz. 8 Klutts v. Jones, 21 N. M. 720, 379, 128 Pac. 813. See Bechtel v. L. R. A. 1917A, 291, 158 Pac. 490. Bechtel, 101 Minn. 511, 12 L. R, A. o Fidelity Safe & Deposit Co. v. (N. S.) 1100, 112 N. W. 883. Sheahan, 37 Okla. 702, 47 L. R. A. See, also, note 12 L. R. A. (N. S.) (N. S.) 309, 133 Pac. 228; Jones 1101. V. Reser (Okla), IGO Pac. 58. See: 4 Kan. Gen. Stats. 1909, § 9037. ^Villiams v. Farmers' Gin & Grain Co., 13 Okla. 5, 73 Pac. 269; Berrv- 5 0'Neil V. Eppler. 90 Kan. 314, ^^^ ^ ^^g ^^^ 2 16. rac. Trezevant v. Strong Co., W. R., 3 Fresno Nat. Bank v. Superior 102 Cal. 47, 36 Pac. 395. 472 Ch. XVI.] RESIDENCE OF CORPORATION, § 374 municipal corporation.^ However, an association of per- sons organized for a particular purpose, though not for- mally incorporated, are within the provision, and may be sued in damages for injuries arising from negligence, in the county in which the negligence occurred and the liabil- ity arose. ''^ Action against railroad corporation to recover daniarjes for injuries sustained may be tried in the county where the injury was inflicted, and the defendant corporation has no right to have the place of trial changed to the county where it has its principal place of business.* § 374. In other states — Colorado. The legal residence of a domestic corporation in Colorado, within the meaning of the code,^ providing that actions are to be tried in the county in which the defendant resides, is the county desigTiated in the articles of incorporation as the county in which the principal office of the corporation is to be maintained and its business conducted ;- but in an early case it is held that under the corporation statute,^ providing that process against a corporation must be served in the county in which its general offices are main- tained, must be read and construed in connection with the section of the code, providing, in general terms, that suit may be brought in the first instance in the county in which the plaintiff resides or in the county in which the contract was to be performed,^ and that an action against a corporation, on a contract, may be brought in the county in which the contract was to have been performed, al- though the defendant's main office and place of business was in another county.^ 6 Buck V. Eureka, City of, 97 Cal. 2 Woods Gold Min. Co. v. Roy- 135, 31 Pac. 845. ston. 46 Colo. 191. 103 Pac. 291. TKendrick v. Diamond Creek ^ ^^^^ ^.^^ g^^^^ ^^^., j, ^3.^ Consol. Gold Min. Co., 94 Cal. 137, ^^ 29 Pac 3^4 s Lewis"' V. South Pac. Coast R. ' See Mills' Ann. Code. § 24. Co.. 66 Cal. 209, 5 Pac. 79. •''' Denver & New Orleans Const. 1 Mills' Ann. Code, § 27. Co. v. Stout, 8 Colo. 61, 5 Pac. 627. 473 §§ 375,376 CODE pleading and practice. [Ft. I, § 375. Idaho. Under the Idaho statute/ a domestic corporation has no absolute right to have all actions against it tried in the county in which its prin- cipal office is located and its business carried on;- conse- quently where a corporation is sued in the county in which the contract was entered into, the corporation is not entitled, as an absolute right, to a transfer of the trial to the county in which its main office is located and its business conducted.^ § 376. Nebraska. Under the provisions of the statute regulating the venue in actions against do- mestic corporations which are of a transitory nature and belonging to the residentiary class, in Nebraska,^ other than carriers, railroads and other specified corporations governed by other sections of the Code of Civil Pro- cedure,^ a domestic corporation may be sued in the place provided for in the code, only,^ — which is any county in which it maintains a place of business.* The subsequent provisions of the code as to the manner of serving process upon a corporation,^ do not add to the enumerations of section fifty-five of the places in which suit may be brought against a corporation.*^ An agent or officer of the corporation temporarily employed in transacting business in a county other than the one in which the principal office is located, does not subject the corporation to the jurisdiction of the courts of such county ;''' and where an agent of a corporation, who has an office and place of business for the corporation in another county, employs 1 Idaho Rev. Codes, § 2792. Snyder, 39 Neb. 632, 58 N. W. 149; 2 Smith V. Inter-Mountain Auto Fremont Butter & Egg Co. v. Kil- Co., 25 Idaho 212, 136 Pac. 1125. lian, 39 Xeb. 636, 58 N. W. 150. 3 Id. 5 Neb. Code Civ. Proc, § 73. 1 Neb. Code Civ. Proc, § 55. 6 W e s t e rn Travelers' Accd. 2 Id., §§ 56-58. Assoc, v. Taylor, 62 Neb. 783, 87 3 W e s t e rn Travelers' Accd. N. W. 950. Assoc. V. Taylor. 62 Neb. 783, 87 7 Security Mut. Life Ins. Co. of N. W. 950. Lincoln v. Ress, 76 Neb. 141, lOG 4 Fremont Butter & Egg Co. v. N. W. 1037. 474 C'h. XVI.] RESIDENCE OF CORPORATION. §§ 377, o78 a person to represent him in a county in wliich the cor- poration has no place of business and maintains no office, the residence of the person thus employed by the agent is purely personal to himself, and does not confer juris- diction on the courts of the county in which he resides over the corporation.* <^ 377. Oregon. Under the provisions of tlie Oregon statute,^ requiring actions to be commenced and tried in the county in which the defendants, or either of them may reside, or may be found, a transitory action of the residentiary class against a corporation organized under the laws of the state is to be brought and tried in the county in which the corporation has its principal office and place of business, or in the county in which the cause of action arose.- The complaint failing to disclose where the cause of action arose, the action must be commenced in the county in which the corporation has its principal office and place of business.^ § 378. South Dakota. The provisions of the South Dakota statute,^ regarding the venue in the residentiary class of actions, applies, alike, to natural per- sons and to corporations,- and the venue of the action against a domestic corporation is in the judicial district in which it has its principal office and place of business, not at a place at which it happens to transact business ;•'' and in those cases in which an action is commenced else- where, the corporation will be entitled to have tlio place of trial changed to the judicial district in which it had its sid. Power Co., 61 Ore. 592. 123 Pac. 1 Ore. Civ. Code, §44; L. O. L., 906. § 44. 1 S. D. Code Civ. Proc, § 101. as 2 Holgate V. Oregon Pac. R. Co., amended by Laws 1909, ch. 283. 16 Ore. 123, 17 Pac. 859; Winter 2 Ivanusch v. Great Northern R. V. Union Packing Co., 51 Ore. 97, Co., 20 S. D. 158, 128 N. W. 333. 93 Pac. 930. 3 Mullen v. Northern Accd. Ins. 8 Davis v. Oregon Placer <& ro., 26 S. D. 402, 128 N. W. 483. 475 §§ 379, 380 CODE PLEADING AND PRACTICE. [Pt. I, principal office at tlie time of the commencement of the action,* §379. Utah. The rule as to the venue of actions against domestic corporations under the stat- utes of Utah^ is the same as in California,^ requiring transitory actions of the residentiary class to be tried in the district in which the corporation had its principal office and place of business at the time of the commencement of the action and if the action is not brought in such dis- trict, the corporation will be entitled to a transfer of the place of trial to the proper district.' § 380. Washington. Under the provis- ions of the Washington statute a domestic corporation may be sued in any county in which it has an office, or in which any person resides upon whom process against the corporation may be served,^ or in any county in which it does business.^ Where suit is commenced against a cor- poration in a wrong county the cause may be tried therein, unless the corporation files an affidavit of merits and demands a removal of the trial of the cause to the proper county.^ Yet, where a suit is commenced in a county in which it has no office and has not done business, and no person resides in that county upon whom service of proc- ess against the corporation may be made, a judgment by default in such county will be void, although a proper agent was duly served with the process in another county.* Sending an agent into a county in which no 4 Gotthelf V. Merchants' Bank, 4 McMaster v. Advance Thresher 33 S. D. 259, 145 N. W. 542. Co., 10 Wash. 147, 38 Pac. 760. ,T J /~i T 1000 Rome Action commenced in wrong 1 Under Comp. Laws 1888, § 3196. . ^ county against a corporation, 2 See, ante, § 373. court of that county has no juris- 3 Crookston v. Centennial Eureka diction to enter judgment in the Min. Co., 13 Utah 117, 44 Pac. 714. action; and it is more than a tech- 1 Wash. Code Civ. Proc, § 160. "*^^^ ^'•'•°'" ^° ^'^^«'" Judgment by default without notice after ap- 2 Rem. & Bal. Code, § 206. pearance.— Richman v. Wenah Co., 8 Wash. Code Civ. Proc, § 162. 74 Wash. 370, 133 Pac. 467. 47G ell. XVI ] NONRESIDENT DEFENDANT. § 381 office is maintained to purchase lumber, and purchasing lumber in such county, constitutes doing business in that county within the provisions of the statute,^ although the corporation has its main office and principal place of busi- ness in another county;^ but the fact that a corporation organized to excavate and fill in certain public lands under provisions of statute,'^ for which work payment was to be received in certificates as the work progressed, which certificates they procured to be underwritten by a trust company residing elsewhere, receives and causes to be recorded in accordance with provisions of law the cer- tificates issued as the work progresses and then transmits the certificates to the trust company, does not constitute doing business by the trust company in the county in which the w^ork is done so as to subject the trust company to an action in that county.* § 381. Nonresident and absconding defendants — In GENERAL. — The general rule is that, in the absence of stat- utory provisions controlling otherwise, a nonresident de- fendant may be sued in any county in which he may be found or in which service of process may be had;^ and under the provisions of the statutes in some jurisdictions an action against a nonresident of the state temporarily wthin it need not be commenced in the county in which the service of the process is made, but the venue may be laid in any county which the plaintiff may select.^ Of course an action against a nonresident of the state can be brought in any county in w^hich he has property,^ and 5 Rem. & Bal. Code, § 206. 176; Charles v. Amos, 10 Colo. 6 Strandall v. Alaska Lumber 272, 14 Pac. 114; Clark v. Willis, Co., 73 Wash. 67, 131 Pac. 211. 44 Okla. 303, 144 Pac. 587; Steed T Wash. Act March 9, 1893, Laws v. Harvey, 18 Utah 367, 72 Am. St. 1893, p. 241. Rep. 789, 54 Pac. 1011. 8 State ex rel. Seattle & Lake 2 Fratt v. Wilson, 30 Ore. 542, Washington Waterway Co. v. Su- 48 Pac. 356; Brown v. Lewis, 50 perior Court, 86 Wash. 657, 150 Ore. 358, 92 Pac. 1058. Pac. 1149. 3 Hembrow v. Winsor, 87 Kan. 1 Wagner v. Hallack, 3 Colo. 714, 125 Pac. 22. 477 § 382 CODE PLEADING AND PRACTICE. [Pt. T, the property is attaclied; but in such a case the action will be in rem and not in personam, will bind the property for any judgment that may be rendered, but there can be no personal judgment against the defendant unless lie appears and submits to the jurisdiction.^ Under a stat- ute providing that action may be brought against a non- resident in any county in which he has property or debts owing to him, or in which he may be found, when it does not appear that the defendant has property or debts owing to him in the county where suit is brought, such action can not be instituted before he enters the county." § 382. A NONEESiDENT PLAINTIFF. The doctriuc as to venue in actions against nonresident defendants is the same whether the plaintiff be a resident or a nonresident of the state of the forum,^ and even though the cause of action arose in a foreign country, or upon the high seas.- But in those cases in which the cause of action arose in a foreign country, there is a discretion which the court may exercise in entertaining jurisdiction of the action,^ and 4 See, ante, §§ 180, 247. state involved this is especially 5 Lamb v. Finch, 87 Neb. 565, true. — Olympia Min. & Mill. Co. v. 127 N. W. 903. Kerns, 64 Wash. 550, 117 Pac. 260. 1 Steed V. Harvey, 18 Utah 367, Action for breach of contract of 72 Am. St, Rep. 789, 54 Pac. 1011. warranty and seisin in deed, the Citizen of territory included and title to the land is not affected. — entitled to sue in courts of state. Coleman v. Lucksinger, 224 Mo. —Southern Pacific R. Co. v. 1, 26 L. R. A. (N. S.) 934, 123 S. W. Dusablon, 48 Tex. Civ. App. 207, 441. 106 S. W. 766. Injury to or trespass upon lands 2 Eingartner v. Illinois Steel Co., outside of the state, action for 94 Wis. 70, 59 Am. St. Rep. 859, damages not maintainable. — Pitts- 34 L. R, A. 503, 68 N. W. 664. See: burgh, C. C. & St. L.. R. Co. v. Reeves v. Southern R. Co., 121 Ga. Jackson, 83 Ohio St. 18, 21 Ann. 561, 2 Ann. Cas. 207, 70 L. R. A. Cas. 1313, 93 N. E. 260; Morris v. 513, 49 S. E. 674; Great Western Missouri Pac. R. Co., 78 Tex. 17, R. Co. V. Miller, 19 Mich. 312; 22 Am. St. Rep. 17, 9 L. R. A. 349, Gardner v. Thomas, 14 Johns. 14 S. W. 228; Missouri Pac. R. Co. (N. Y.) 134, 7 Am. Dec. 445; John- v. Cullers, 81 Tex. 388, 13 L. R. A. son V. Dalton, 1 Cow. (N. Y.) 513, 545, 17 S. W. 19. 13 Am. Dec. 564. Compare: Smith v. Southern R. s Title to land in such other Co., 136 Ky. 162, 26 L. R. A. (N. S.) 47S ell. XVI.] NONRESIDENT PI.AINTIFF. U82 may dismiss the action, if for any reason it seems im- proper for the court to take jurisdiction/ This right of a resident of another state to maintain an action in the forum of a sister state against a nonresident of the latter state, is guaranteed by the federal constitution, which provides that ''the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states,"^ and this is construed to include the right to institute actions*^ against nonresidents of the state of the forum. ■^ And the action may be thus brought under the laws of the state or country in which the cause of 927, 123 S. W. 678, holding that action for negligent explosion in- juring building across the line in another state may be maintained in forum of state in which explo- sion occurred. As to forum in which action for damages to land may be brought, see notes, 21 Ann. Cas. 1314; 26 L. R. A. (N. S.) 933. 4 Bradbury v. Chicago, R. I. & P. R. Co., 149 Iowa 59, 40 L. R. A. (N. S.) 684, 128 N. W. 1; Morris V. Missouri Pac. R. Co., 78 Tex. 17, 22 Am. St. Rep. 17, 9 L. R. A. 349, 14 S. W. 228; Olympia Min. & Mill. Co. V. Kerns, 64 Wash. 550, 117 Pac. 260; Eingartner v. Illinois Steel Co., 94 Wis. 70, 59 Am. St. Rep. 859, 34 L. R. A. 503, 68 N. W. 664. 5 U. S. Const., art. IV, § 2, 9 Fed. Stats. Ann. 1st ed., pp. 158 et seq. 6 Bradbury v. Chicago, R. I. & P. R. Co., 149 Iowa 59, 40 L. R. A. (N. S.) 684, 128 N. W. 1; Williams V. Pope Mfg. Co., 52 La. Ann. 1432, 78 Am. St. Rep. 390, 50 L. R. A. 822, 27 So. 851; Cofrade v. Gart- ner, circuit judge, 79 Mich. 332, 342, 7 L. R. A. 511, 44 N. W. 623; Daniels v. Detroit, G. H. & M. R. Co., 163 Mich. 473, 128 N. W. 797: Lemmon v. People, 20 N. Y. 562, 608; Southern Pac. R. Co. v. Dusablon, 48 Tex. Civ. App. 207, 106 S. W. 766; Paul v. Virginia, 75 U. S. (8 Wall.) 168, 19 L. Ed. 357; Ward V. Maryland, 79 U. S. (12 Wall.) 418, 430, 20 L. Ed. 449, 452-3; Cole V. Cunningham, 133 U. S. 107, 114, 33 L. Ed. 538, 541, 10 Sup. Ct. Rep. 269; Mason v. West Branch Boom Co., 3 Wall. Jr. 252, Fed. Cas. No. 9232; Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3230. T Eingartner v. Illinois Steel Co.. 94 Wis. 70, 59 Am. St. Rep. 859. 34 L. R. A. 503. 68 N. W. 664. See: Reeves v. Southern R. Co., 121 Ga. 565, 2 Ann. Cas. 207, 70 L. R. A. 521, 49 S. E. 674; Barrell v. Ben- jamin, 15 Mass. 354; State Bank v. Moxson, 123 Mich. 253, 81 Am. St. Rep. 196, 82 N. W. 83; Slight V. Swanson, 127 Mich. 439, 86 N. W. 1010; Pullman Palace Car Co. v. Lawrence, 74 Miss. 800, 22 So. 53; Morgan v. Neville, 74 Pa. St. 57; Southern Pac. R. Co. v. Graham, 12 Tex. Civ. App. 568, 34 S. W. 135; Thoen v. Harnstrom, 98 Wis. 233, 73 N. W. 1011; Smith v. Em- pire State Idaho Min. & Devel. Co., 127 Fed. 464. 79 §382 CODE PLEADING AND PRACTICE. [Pt. r, action sued upon arose,* and be prosecuted under the lex Attachment by nonresident against property of nonresident. — Morgan v. Neville, 74 Pa. St. 57; Thoen v. Harnstrom, 98 Wis. 233, 73 N. W. 1011. 8 St. Louis, I. M. & S. R. Co. v. Haist, 71 Ark. 258, 100 Am, St. Rep. 65, 72 S. W. 893; Negaubauer V. Great Northern R. Co., 92 Minn. 184, 104 Am. St. Rep. 674, 99 N. W. 620; Vawter v. Missouri Pac. R. Co., 84 Mo. 679, 54 Am. Rep. 105; McGinnis v. Missouri Car & Foundry Co., 174 Mo. 225, 97 Am. St. Rep. 553, 73 S. W. 586; Loucks V. Standard Oil Co. (N. Y.), 120 N. E. 198; Usher v. New Jersey R. Co., 126 Pa. St. 206, 12 Am. St. Rep. 863, 4 L. R. A. 261, 17 Atl. 597; Southern Pac. Co. V. Dusablon, 48 Tex. Civ. App. 207, 106 S. W. 766; Robertson v. Chicago, St. P., M. & O. R. Co., 122 Wis. 66, 106 Am. St. Rep. 925, 66 L. R. A. 919, 99 N. W. 343. Person designated in foreign statute, only, can maintain the action; to permit legislature of forum to authorize another person than the one provided in such law to maintain an action and enforce the right given would be to invest such law of the forum with extra- territorial effect. — M c G i n n i s v. Missouri Car & Foundry Co., 174 Mo. 225, 97 Am. St. Rep. 553, 73 S. W. 586. See: Buckles v. Filers, 72 Ind. 220, 37 Am. Rep. 138; Mc- Carthy V. Chicago, R. I. & P. R. Co., 18 Kan. 46, 26 Am. Rep. 742; Taylor v. Pennsylvania Co., 78 Ky. 348, 39 Am. Rep. 244; Richardson V. New York Cent. R. Co., 98 Mass. 85; Vawter v. Missouri Pac. R. Co., 84 Mo. 679, 54 Am. Rep. 105; Woodard v. Michigan S. & N. I. R. Co.. 10 Ohio St. 121. This doctrine sometimes defeats all right of action in a foreign state. Thus, where the lex loci delicti provides that an action for negligent injury causing death, or a wrongful death, may be main- tained by the personal representa- t i V e of the decedent, only, an administrator appointed in the state of the forum can not main- tain the action under the lex loci delicti in such foreign state. — Mc- Ginnis V. Missouri Car & Foundry Co., 174 Mo. 225, 97 Am. St. Rep. 553, 73 S. W. 586; Vawter v. Mis- souri Pac. R. Co., 84 Mo. 679, 54 Am. Rep. 105. Contra: Stoeckman v. Terre Haute & I. R. Co., 15 Mo. App. 503; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491; Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 L. Ed. 439. An administrator appointed in the state where the act complained of and the death occurred can not sue in a foreign state, because he h a s no extraterritorial rights. — Vawter v. Missouri Pac. R. Co., 81 Mo. 679, 54 Am. Rep. 105. And no one other than the for- eign administrator can maintain an action, because the lex loci delicti provides that the personal representative, only, may maintain the action. — Oates v. Union Pac. R. Co., 104 Mo. 514, 24 Am. St. Rep. 348, 16 S. W. 487. See very comprehensive discus- sion in 8 R. C. L., p. 756, §§ 44-54. Remarkable utterance anent the doctrine of locus regit actum found in the Yale Law Journal for November, 1918, commenting on the commonplace decision in Loucks v. Standard Oil Co. (N. Y.), 120 N. E. 198, can not to 4:80 i ch. XVI.] NONRESIDENT PLAINTIFF. §383 fori, pro\dded such statute is pleaded,^ althougli such statute is in derogation of the common law.^*^ AJ'iPiiage is not a bar under the rule;^^ it is not neces- sary to prove citizenship before the commencement of the action.^- Thus, a nonresident widow of a resident alien with first papers, living in a foreign land, but intending to join her husband in the state of the forum, where he was killed by wrongful or negligent act, may there main- tain an action for damages for his wrongful death.^^ § 383. Illustkations of doctrine. As illus- trating the doctrine as to venue in transitory actions, between parties all of whom are nonresidents of the state, overlooked, because so startling and so contrary to every estab- lished principle of every knovi^n system of law in all civilized nations, tbe asseveration being that: "Aside from existing systems o f positive law — constitutional, i-.tatutory, or judge-made — it seems clear that there is no inherent reason why the law of any sov- reign nation — England, for exam- ple — m ay not, if the sovereign English Parliament or the appro- priate English court so decree, attach any legal consequences whatever to any state of facts whatever, including acts done in other countries, even by persons not citizens or residents of Eng- land. This simply amounts to saying that, a sovereign nation, England may determine what legal consequences shall, in England, by English courts, be held to attach to a given state of facts, if in any way ao English court is presented with a case involving them." St. Louis, I. M. & S. R. Co. v. Haist, 71 Ark. 258, 100 Am. St. Rep. 65, 72 S. W. 893; Wabash R. Co. V. Hassett, 170 Ind. 382, 83 N. E. 705, 1 Cod? PI. and Pr.— 31 ^g]^ Pleading in hasc verba is not essential; it is sufficient to set out the substance and effect of the lex loci delicti. — St. Louis, L M. & S. R. Co., 71 Ark. 258, 100 Am. St. Rep. 65, 72 S. W. 893. See: Stacy V. Becker, 2 111. (1 Scam.) 418; Louisville, N. A. & C. R. Co., 108 111. 628; Consolidated Tank Line Co. V. Collier, 148 111. 266, 39 Am. St. Rep. 181, 35 N. E. 756. 10 Bain v. Northern Pac. R. Co., 120 Wis. 416, 98 N. W. 241. 11 See: Kelly ville Coal Co. v. Petraytis, 195 111. 215, 88 Am. St. Rep. 191, 63 N. E. 94; Mulhall v. Fallon, 176 Mass. 266, 79 Am. St. Rep. 309, 54 L. R. A. 934, 57 N. E. 386; Renuld v. Commodore Min. Co., 89 Minn. 41, 99 Am. St. Rep. 534, 93 N. W. 1057. Contra: Deni v. Pennsylvania R. Co., 181 Pa. St. 525, 59 Am. St. Rep. 676, 37 Atl. 558; Mc:\lillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332, 95 Am. St. Rep. 497, 60 L. R. A. 589, 91 N. W. 979. 12 Southern Pac. R. Co. v. Allen, 48 Tex. Civ. App. 71, 106 S. W. 441. 13 I>aconte v. Kenosha, 149 Wis. 347, 135 N. W. 843. §383 CODE PLEADING AND PRACTICE. [Pt. I, as laid down in the preceding section, tlie following in- stances may be cited : Action by passenger against for- eign railroad company for injuries sustained in a collision occurring in another state ;^ action to collect debt on at- tachment- or garnishment^ process ; action for death from Avrongful act, neglect or default;* action on foreign con- tract,^ performable out of state of forum ;^ action for damages for negligent act in foreign jurisdiction" by employees of a common master, they not being fellow- employees,^ or they being fellow-servants f action for in- jury to personal property occurring out of the state of the forum ;^*^ action for malicious prosecution and false imprisonment in the state of the forum ;^^ action for damages for negligent explosion causing injury to build- ing in another state ;^2 tort action^^ for injuries inflicted in a foreign state,^* and the like. 1 Denver & R. G. R. Co. v. Roller, 41 C. C. A. 28, 100 Fed. 744, 49 L. R. A. 82. 2 Morgan v. Neville, 74 Pa. St. 57. 3 Thoen v. Harnstrom, 98 Wis. 233, 73 N. W. 1011. 4 Wabash R. Co. v. Hassett, 170 Ind. 382, 83 N. E. 705; McGinnis v. Missouri Car & Foundry Co., 174 Mo. 225, 97 Am. St. Rep. 553, 73 S. W. 586; Robertson v. Chi- cago, St. P., M. & O. R. Co., 122 Wis. 66, 106 Am. St. Rep. 925, 66 L. R. A. 919, 99 N. W. 433; Laconte V. Kenosha, 149 Wis. 347, 135 N. W. 843. 5 S t a t e Bank v. Moxson, 123 Mich. 253, 81 Am. St. Rep. 196, 82 N. W. 32 (in county in which debtor's property found). As to venue in action for breach of foreign contract, see note, 26 L. R. A. (N. S.) 928. 6 Western Union Tel. Co. v. Russell, 12 Tex. Civ. App. 85, 33 S. W. 708. 7 Daniels v. Detroit, G. H. & M. R. Co., 163 Mich. 473, 128 N. W. 797. 8 Eingartner v. Illinois Steel Co., 94 Wis. 70, 59 Am. St. Rep. 859, 34 L. R. A. 503, 68 N. W. 664. 9 MacCarthy v. Whitcomb, 110 Wis. 123, 85 N. W. 707. 10 Southern Pac. R. Co. v. Graham, 12 Tex. Civ. App. 568, 34 S. W. 135. 11 Williams v. Pope Mfg. Co., 52 La. Ann. 1432, 78 Am. St. Rep. 390, 50 L. R. A. 822, 27 So. 851. 12 Smith V. Southern R. Co., 136 Ky. 162, 26 L. R. A. (N. S.) 927, 123 S. W. 678. 13 Reeves v. Southern R. Co., 121 Ga. 565, 2 Ann. Gas. 207, 70 L. R. A. 521, 49 S. E. 674. 14 Pullman Palace Car Co. v. Lawrence, 74 Miss. 800, 22 So. 53. 482 Ch. XVI,] FOREIGN CORPORATION PLAINTIFF. §§ 384, 385 § 384. California doctrine. Under the California Code of Civil Procedure if none of the defendants reside in the state, or if residing in the state and the county in which they reside is unknown to the plaintiff, the same may be tried in any county which the plaintiff may desig- nate in his complaint; and if the defendant is about to depart from the state, such action may be tried in any county where either of the parties reside, or service is had ; subject, however, to the power of the court to change the place of trial. ^ This provision of the statute does not defeat a defendant's right to have a transitory action of the residentiary class tried in the county of his residence, and where the action is brought in another county, a mere showing by the plaintiff that he was ignorant of the place of residence of the defendant when the action was com- menced without showing that he used all proper diligence to ascertain his place of residence before commencing the action and failed, does not entitle the plaintiff, under the above provision of the Code of Civil Procedure, to have the trial of the action in the county designated by him, which is other than that of the residence of the def eudant.- And the same rule prevails in other states.^ § 385. Foreign corporations. The rules laid down in the preceding section apply with equal force to for- eign corporations in all transitory actions of the residen- tiary class. ^ That is to say, a foreign corporation, doing 1 Kerr's Cyc. Cal. Code C i v. Super. Ct. Rep. (24 Jones & S.) Proc, 2d ed., §395; Consolidated 108, 15 N. Y. Civ. Proc. Rep. 88, Supp. 1906-1913, p. 1425. 1 N. Y. Supp. 418; Anglo-Amer- 2 Loehr v. Latham, 15 Cal. 418; ican Provision Co. v. Davis Pro- Watkins v. Digener, 63 Cal. 500; vision Co., 169 N. Y. 506, 88 Am. Thurber v. Thurber, 113 Cal. 607, St. Rep. 608, 62 N. E. 587, affirm- 45 Pac. 852. ing 50 App. Div. 273, 63 N. Y. Supp. 3 Dunham v. Schindler, 17 Ore. 987; affirmed in 191 U. S. 373, 48 256, 20 Pac. 326. L. Ed. 225, 24 Sup. Ct. Rep. 92; 1 Robinson v. Oceanic Steam Duquesne Club v. Penn Bank, 35 Nav. Co., 112 N. Y. 323, 16 N. Y. Hun (N. Y.) 390. Civ. Proc. Rep. 255, 2 L. R. A. 636, As to locus of action against a 19 N. E. 625, affirming 56 N. Y. foreign corporation, see a very 483 §385 CODE PLEADING AND PRACTICE. [Pt. J. "business in the state^ and having agents located in the state for this purpose, may be sued and served with proc- ess in the same manner as domestic corporations, upon transitory causes of action, whether such cause of action originates in the state of the forum or elsewhere, and whether the plaintiff be located as resident of the state of the forum or elsewhere, provided only that the enforce- ment of the cause of action would not be contrary to the laws and policy of the state of the forum ;^ although the mere passing through the state of an agent or officer. exhaustive note in 70 L. R. A. 513- 554. 2 As to status of foreign corpora- tion doing business witiiin the state, see Hannis Distilling Co. v. Baltimore, City of, 114 Md. 678,685, 80 Atl. 319; Showen v. Owens Co., J. L., 158 Mich. 331, 133 Am. St. Rep. 376, 122 N. W. 640. Doing business in state in which process is served essential to con- fer jurisdiction on the court, is the doctrine in some jurisdictions. — See cases cited in footnote 3, this section, and Briscoe v. Brant, 38 Utah 65, 110 Pac. 356. Domestic corporation maintain- ing office and advertising connec- tion with foreign railroad corporation and solicited business over such foreign railroad, such railroad corporation was held to be doing business within the state for purpose of an action. — Central R. Co. V. Eichberg, 107 Md. 371, 14 L. R. A. (N. S.) 392, 68 Atl. 690. Soliciting business in Pennsyl- vania for railroad with eastern terminus at Chicago, held not to constitute doing business within the state so as to give the court of Pennsylvania jurisdiction over an Iowa corporation. — Green v. Chicago, B. & Q. R. Co., 205 U. S. 533, 51 L. Ed. 917, 27 Supp. Ct. Rep. 595. Foreign corporation maintaining offices within the state at which it solicits business and at which its dfrectors' meetings are held, held to be doing business within the state for purposes of an action. — Sleicher v. Pullman Co., 170 Fed. 365. Foreign insurance company can not be sued in one county and service of process made upon agent in another county, where the party insured did not reside in the county of the venue either at the time the contract of insurance was entered into or at the time of his death. — Deatrick v. State Life Ins. Co., 107 Va. 612, 59 S. E. 489. 3 Reeves v. Southern R. Co., 121 Ga. 561, 2 Ann. Gas. 207, 70 L. R. A. 513, 49 S. E. 674, overruling on this point Bawknight v. Liverpool & London & Globe Ins. Co., 55 Ga. 194, which latter case was followed in Central R. & Banking Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339; first case followed without discus- sion in Hawkins v. Fidelity & C. Co., 123 Ga. 722, 51 S. E. 724; Southern R. Co. v. Grizzle, 124 Ga. 740, 110 Am. St. Rep. 191, 53 S. E. 244; Smith v. Empire State-Idaho 484 ■ ell. XVI.] FOREIGN CORPOKATIOX Pr.AlNTIFP. §386 though a head officer, woukl not give the courts ol" sacli state jurisdiction of the corporation.^ This is the general and the better doctrine, although it does not go without question: Thus, it has been said that a person injured while traveling upon a railroad in one state incorporated in that state, but extending to and doing business in an- other state, can not maintain an action therefor in the latter state.'' This is in accordance with the former pre- vailing doctrine that actions in personam could not be maintained in a state other than the one in wdiich it was incorporated, unless the contract sued on, or the injury was suffered in the state in which the action was brouiiiit.'" §386. Illustrations of prevailing doctrine A few of the various classes of cases illustrative of the prevailing doctrine as above laid down may be given as follows: An action against a foreign corporation doing Min. & Devel. Co., 127 Fed. 465. See: South Carolina R. Co. v. Nix, 68 Ga. 572, 580; Barrell v. Ben- jamin, 15 Mass. 354; Cole v. Cun- ningham, 133 U. S. 107, 113, 33 L. Ed. 541, 542, 10 Sup. Ct. Rep. 269. 4 Schmidlapp v. La Confiance Ins. Co., 71 Ga. 246; Associated Press V. United Press, 104 Ga. 51, 29 S. E. 869; Reynolds & H. Eastern Mortg. Co. V. Martin, 116 Ga. 495, 42 S. E. 796; Reeves v. Southern R. Co., 121 Ga. 561, 2 Ann. Cas. 207, 70 L. R. A. 513, 49 S. E. 674 (obiter); Abbeville Electric L. & P. Co. V. Western Electrical Sup- ply Co., 61 S. C. 361, 85 Am. St. Rep. 890, 55 L. R. A. 146, 39 S. E. 559. Compare: Harvey v. Thompson, 128 Ga. 154, 119 Am. St. Rep. 373, 9 L. R. A. (N. S.) 769, 57 S. E. 104. ^' Central R. & Banking Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339. c See: Central R. & Banking Co. V. Carr, 76 Ala. 388, 52 Am. Rep. 3 3 9; Bawknight v. Liverpool & London & Globe Ins. Co., 55 Ga. 194, overruled as noted in foot- note 3, this section; Smith v. Mutual Life Ins. Co., 96 Mass. (14 Allen) 386; Newe v. Great W. R. Co. of Canada, 19 Mich. 336; Parke v. Commonwealth Ins. Co., 44 Pa. St. 422; Sawyer v. North American Life Ins. Co., 46 Vt. 697; St. Clair v. Cox, 106 U. S. 350, 27 L. Ed. 222, 1 Sup. Ct. Rep. .^54. For history of development of doctrine as it now prevails, see Reeves v. Southern R. Co., 121 Ga. 561, 2 Ann. Cas. 207, 70 L. R. A. 513, 49 S. E. 674, and notes, 2 Ann. Cas. 210, 70 L. R. A. 513. Statutory provision thus limiting right of action does not offend against the provision of federal constitution. — Central R. & Bank- ing Co. V. Georgia Const. & Invest. Co.. 32 S. C. 319, 11 S. E. 192. 485 §387 CODE PLEADING AND PRACTICE. [Pt. I, business in the state on a contract wholly performable out of the state ;^ action by an employee to recover dam- ages from a foreign railroad company for personal in- juries arising under the federal employer's liability act,- or by a passenger to recover damages for a collision occurring in another state ;^ an action against a foreign corporation by a nonresident of the state for malicious prosecution and false imprisonment at the forum ;^ an action for tort^ against a foreign railroad company for failure to deliver cattle in another state,*^ or for wrongful death in another state.'^ Locus of venue against a nonresident corporation in an action on a cause of action arising outside of the state is any county in which service of process may be had.* But in those cases in which resident defendants are joined with a foreign corporation, the right thus to sue in any county of the state is lost; the locus of the venue is the county in which the resident defendants live.® <§> 387. Objections and exceptions — In general. We have already discussed the question of objections and ex- ceptions, and the method of taking and entering the same, in connection with the place of trial of a cause as deter- mined by the subject-matter of the action or the nature of the proceedings ;^ and it remains but to add here that 1 Western Union Tel. Co. v. Russell, 12 Tex. Civ. App. 85, 33 S. W. 708. 2 Bradbury v. Chicago, R. I. & P. R. Co., 149 Iowa 59, 40 L. R. A. (N. S.) 690, 128 N. W. 1. 3 Denver & R. G. R. Co. v. Roller, 41 C. C. A. 22, 28, 100 Fed. 738. 744, 49 L. R. A. 77, 82. 4 Williams v. Pope Mfg. Co., 52 La. Ann. 1432, 78 Am. St. Rep, 390, 50 L. R. A. 822, 27 So. 851. 5 Reeves v. Southern R. Co., 121 Ga. 561, 565, 2 Ann. Cas. 207, 70 L. R. A. 513, 49 S. E. 674. 6 Bracewell v. Southern R. Co., 134 Ga. 538, 68 S. E. 98; Lytle v. Southern R. Co., 3 Ga. App. 221, 59 S. E. 595. 7 Wabash R. Co. v. Hassett, 170 Ind. 382, S3 N. E. 705. See authorities, ante, § 383, foot- note 4. 8 Wright V. Southern R. Co., 7 Ga. App. 545, 67 S. B. 272; Ivanusch V. Great Northern R. Co., 26 S. D. 158, 128 N. W. 333. 9 Ludington Exploration Co. v. La Fortuna Gold & S. Min. Co., 4 Cal. App. 369, 88 Pac. 290. 1 See, ante, §§ 355, 356. IQQ eh, XVI.] OBJECTIONS — ESTOPPEL AND WAIVER. § 388 in the case of transitory actions of the residentiary class, where the defendant has a personal privilege to have a cause brought and tried, or simply to have the trial, in the county of his residence, where an action is brought in the wrong county timely objection and exception thereto must be made in the manner required by the statute of the particular jurisdiction, or the objection will be deemed to have been waived.- The method of object- ing and taking exceptions to the violation of the defend- ant's privilege differs in different jurisdictions. Thus, in California it is by motion for a change of the place of trial f in Colorado it must be by plain abatement,^ pro- ceedings by motion being insufficient;^ by motion for change of venue in lowa,^ motion to dismiss being im- proper ;^ by motion for change of place of trial in Minne- sota,* Montana*^ and Utah;^*^ while in Nebraska the objec- tion is to be taken in the answer.^^ § 388. Estoppel and waiver. The question of waiver of objection and estoppel to raise question, also has been already discussed,^ and it remains but to add here that where a defendant has a personal privilege of having an action commenced and tried, or the trial had, in the county of his residence, or any particular county, he may waive the privilege either expressly or by impli- 2 See, post, § 388. 7 Marquardt v. Thompson, 7 8 3 See: Kerr's Cyc. Cal. Code Civ. Iowa 158. 42 N. V^. 634. Proc, 2d ed., §395; Consolidated '^Merrill v. Shaw. 5 Minn. 148; Collins V. Bowen. 45 Minn. 186. 47 Supp. 1906-1913, p. 1425; Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981. N. W. 719. 9 State ex rel. Schatz v. District 4 Cody V. Raynaud. 1 Colo. 272; ^^^^^^ ^^ ^^^^^. ^^3^ ^^^ p^^ 554 Western Union Tel. Co. v. Clay- ^^ Snyder v. Pike, 30 Utah 102, more. 2 Colo. 32, 34. g3 p^^, ggg (under Rev. Stats. •■^Id. 1898, § 2933). <•' McDonald V. Second Nat. Bank, 11 Baker v. Union Stock Yards 106 Iowa 517, 76 N. W. 1011; Nat. Bank, 63 Neb. 801. 93 Am. St. Marquardt v. Thompson, 78 Iowa Rep. 484, 89 N. W. 269. 158, 42 N. W. 634. 1 See, ante, § 357. 487 §388 CODE PLEADING AND PRACTICE. [Pt.I, cation ;- but where the constitution^ or statute by manda- tory provision designates the county in which an action shall be brought, a failure to bring it in such county can not be waived by the defendant.* An objection that an action is commenced in the wrong county in violation of the privilege of the defendant is deemed to have been waived where the defendant, w^ithout objecting duly on that ground appears in the action;^ consents to the pro- ceedings, — e. g. the probate of a will;*^ files general de- murrer without moving transfer to proper county,'^ or suffers a default.^ But a simple failure of the defendant to appear at the time of ruling on an application for the change of the place of trial to the proper county, the county of his residence, does not constitute a waiver of the objection that the action was not commenced in the proper county.^ 2 See: Hearne v. De Young, 111 Cal. 373, 43 Pac. 1108; Bohn v. Bohn, 164 Cal. 532, 129 Pac. 981; Miller v. Weston, 25 Colo. App. 231, 138 Pac. 424; McDonald v. Second Nat. Bank, 106 Iowa 517, 76 N. W. 1011; Collins v. Bowen, 45 Minn. 186, 47 N. W. 719; Snyder V. Pike, 30 Utah. 102, 83 Pac. 692; Stone V. Union Pac. R. Co., 32 Utah 187, 207, 89 Pac. 715, 723; Farnsworth v. Union Pac. Coal Co., 32 Utah 112, 89 Pac. 74; State ex rel. Schwabacher Bros. & Co. v. Superior Court, 61 Wash. 681, Ann. Cas. 1914C, 814, 112 Pac. 927. 3 As Utah Constitution, art. VIII, § 5, requiring every cause of action to be tried in the courts of the county 1 n which the cause of action arose. 4 Knold V. Rio Grande W. R. Co.. 16 Utah 151, 51 Pac. 256. 5 State ex rel. Schwabacher Bros. & Co. V. Superior Court, 61 Wash. 681, Ann. Cas. 1912C, 814, 112 Pac. 927. 6 Miller v. Weston, 25 Colo. App. 231, 138 Pac. 424. 7 Farnsworth v. Union Pac. Coal Co., 32 Utah 112, 89 Pac. 74 (under laws 1903, ch. 92, §1, p. 76). 8 McDonald v. Second Nat. Bank, 106 Iowa 517, 76 N. W. 1011. 9 State ex rel. Stockman v. Su- perior Court, 15 Wash. 366, 46 Pac. 395. 488 I CHAPTER XVII. CHANGE OF PLACE OF TKIAL. § 389. In general. § 390. Definitions and distinctions. § 391. Power of court to change place of trial — In general. § 392. Application for change of place of trial — In general § 393. As to time of application. § 394. As to manner of application. §395. As to effect of application. ' § 396. As to causes of action to which applicable ' § 397. Specific instances. j § 398. Who may apply for change — Plaintiffs. § 399. Defendants — In general. § 400. Co-defendants must join. § 401, Affidavit of merits — In general. § 402. Form and sufficiency of affidavit. § 403. Amendment of affidavit of merits. § 404. By one co-defendant for all. § 405. Causes or grounds for change of place of trial. § 406. Counter-motion to retain cause. § 407. Demand for change of place of trial. § 408. Form and statement in demand — In California. § 409. In New York. §410. Affidavits — 1. Where ground nonresidence — Defendant's affidavits. § 411. Plaintiff 's affidavits. § 412. Association or corporation — In California. § 413. Plaintiff 's affidavits. § 414_ 2. Bias, partiality and prejudice — Moving affidavits. § 415. Amount of bias, partiality or prejudice neces- sary. § 416. Counter-affidavits. § 417. 3. For convenience of witnesses — Moving affidavits. § 418. Counter-affidavits. § 419. Application can be made when, 489 § 389 CODE PLEADING AND PRACTICE. [Pt. I, § 420. Discretion of court. § 421. 4. Disqualification of judge — Supporting affidavits. §422. In California. § 423. (1) Party to or interested in action. § 424. What interest disqualifies. §425. (2) Relationship by affinity or consan- guinity. § 426. Party includes whom. § 427. Rule for determination of relation- ship. § 428. (3) Former counsel in case, etc. §429. (4) Bias and prejudice of presiding judge. § 430. (5) In cases against reclamation districts, etc. § 431. Hearing and determination of application for change. § 432. Order — Denying application for change. § 433. Appeal and mandamus. § 434. Granting application for change. § 435. Transfer of cause — In general. § 436. Procedure and practice. § 389. In general. A right to a change in the place of the trial of a cause, is a right of the defendant which was firmly established at common law at the time the thirteen colonies separated from the mother country/ and be- came the ''law of the land" in this country in all those states adopting the common-law system of practice and procedure,- but not in those states which did not adopt that system,^ or in states having the reformed system of 1 See Cochecho R. Co. v. Far- In criminal cases Michigan rington, 26 N. H. 428. courts held to have common-law 2 Id.; Cooke v. Cooke, 41 Md. power to change place of trial, In 362; Lynch v. Horry, 1 Bay. L. p^^pie v. Peterson, 93 Mich. 27, (S. C.) 229. 52 N. W. 1039. 3 Lincoln County v. Prince, 2 Mass. 544; Cleveland v. Welsh, 4 ^^^^ doctrine held in New Mass. 591; Hawkes v. Kenebeck Hampshire, in State v. Albee. 61 County, 7 Mass. 461; Shannon v. N. H. 423, 60 Am. Rep. 325, over- Smith, 31 Mich. 451; Livingston ruling State v. Sawyer, 56 N. H. V. Xoe, 69 Tenn. (1 Lea) 55. 175. 490 Cll. XVII.] DEFINITIONS AND DISTINCTIONS. § 390 judicature.^ The right to a cliange of place of trial is now controlled by constitutional and statutory provisions in the majority, if not all, the jurisdictions ; and the statu- tory provisions must be closely followed in seeking to secure an enforcement of the right. Thus, in California, for example, the application for a change of the place of trial must be made at the time an answer or demurrer is filed f if the demand is made before that time it ^vill be of no avail f and the same is true where the demand is made after his demurrer has been overruled,'^ or after trial. ^ § 390. Definitions and distinctions. The use of the term "change of venue" is thought to be ill-advised, be- cause technically there can be no change in the venue, although there may be a change in the place of trial. ^ "Removal of cause" is also an unfortunate phrase used in a statute, or elsewhere, to convey the idea of a change of the place of the trial of a cause; removal of cause, properly speaking, is where jurisdiction as well as the place of the trial is changed, substituting a federal court for the state court.- Where used in a statute providing for and regulating the change in the place of the trial of a cause, the phrases "change of venue" and "removal of 4 See: Zelle v. McHeniT, 51 8 Smith v. King of Arizona Min. Iowa 572, 2 N. W. 264; State v. & Mill. Co., 9 Ariz. 228, 231, 80 McGehan, 27 Ohio St. 280; Com- pac. 357; Maxon v. Chicago, M. & mercial Nat. Bank v. Davidson, 18 g^ p_ r ^o., 67 Iowa 226. 25 N W. Ore. 57, 22 Pac. 517. ... ... , 144. sThomas v. Placerville Gold Quartz Min. Co., 65 Cal. 600, 4 Pac. ^^^' ^^o^ever, post. § 397. foot- 641; Nicholl v. Nicholl, 66 Cal. 36, °°^® ^^• 4 Pac. 882. See Union Lumber ^ Venue material averment in Co. V. Metropolitan Constr. Co., 13 indictment can not be changed, but Cal. App. 584, 110 Pac. 329. the place of the trial of the action '■- Nicholl V. Nicholl, 66 Cal. 36, or prosecution may be when the 4 Pac. 882. appropriate grounds therefor are ~ See Union Lumber Co. v. Me- made to appear.— See State v. Ad- tropolis Constr. Co., 13 Cal. App. dison, 2 S. C. 356. •')84, 110 Pac. 329; Nutley v. Me- 2 As to removal of cause, see, tropolis Constr. Co., 13 Cal. App. post, §§ 437 et seq. 588, 110 Pac. 331. 491 §391 CODE PLEADING AND PRACTICE. [Pt. I, cause" are used interchangeably as synonymous.^ Strictly speaking, ''change of venue" or ''removal of cause," as used in the statutes and popular parlance, sim- ply means a change in the place of the trial of a cause from one county to another ;^ and sometimes, but inaccu- rately, a transfer from one department to another of the court in the same county,^ but such a transfer, like calling in another judge, in no true sense changes the place of trial.^ § 391. Power of court to chaxge place of trial — In" GENERAL. Under the constitutional and statutory provi- sions in the various jurisdictions authorizing a change in the place of the trial of a cause when specified things are properly made to appear as a cause or ground therefor, the power of the court is limited to the exercise of a judi- cial discretion, on good cause shown. ^ Such change may be applied for on the ground (1) that the action has not been brought in the proper county, considering the loca- 3 State ex rel. Vickery v. Wof- ford, 119 Mo. 375, 24 S. W. 764; Felts V. Delaware, L. E. & W. R. Co., 195 Pa. St. 21, 45 Atl. 493. 4 Hutts V. Hutts, 62 Ind. 240. sWeare v. Williams, 69 Iowa 252, 28 N. W. 589; State ex rel. Vickery v. Wofford, 119 Mo. 375, 24 S. W. 764; State v. Addison, 2 S. C. 356. 6 See Perrin v. State, 81 Wis. 135, 50 N. W. 516. 1 Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; af- firmed upon this point but re- versed upon another point in Ken- non V. Gilmer, 131 U. S. 22, 33 L. Ed. 110, 9 Sup. Ct. Rep. 696; Territory v. Manton, 8 Mont. 95, 19 Pac. 387; Davis, In re, 11 Mont. 1, 27 Pac. 342; State v. Rus- sell, 13 Mont. 164, 32 Pac. 854. Adverse party of great influence over the inhabitants of community in which the action is pending, in- sufficient to warrant change of place of trial without other evi- dence of undue influence.— Greene V. Wilson, 27 Fla. 492, 8 So. 723. Facts must be set forth upon which application for change of venue is based, not the mere opin- ions of affiants and witnesses pro- duced in support thereof. — State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026. Review of order granting or re- fusing application for change of venue not reviewable, in absence of abuse of discretion. — Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847. See Boesch v. Graff, 133 U. S. 699, 33 L. Ed. 788, 10 Sup. Ct. Rep. 379; Bondholders, etc., iron R. Co. v. Toledo, D. & R. R. Co., 62 Fed. 166, 169. 402 Ch. XVII.] CHANGING PLACE OP TRIAL — POWER. § o!)! tion of the subject of the action, or it may be applied for (2) on the ground that the ends of justice, or the con- venience of parties and their witnesses, will be better sub- served by the change; or (3) on the ground of prejudice in the community preventing a fair and impartial trial, or (4) because of bias or disqualification of the judge x)re- siding, or to preside, at the trial of the cause in the count}^ where the action is instituted or prosecution had. In any case where application for a change in the place of trial is made, before it is incumbent upon the court to make the change, good cause must be shown by the party ap- plying therefor, and this remedy is a privilege which may be waived, as by failing to appear,- the statute being mandatory upon the court when the party apph-iug brings himself within its provisions only.^ A motion for change of venue on the ground of the convenience of witnesses, and because a fair and impartial trial can not be had in the county in which the action is brought, is held to be addressed to the sound discretion of the court, and that its action thereon will not be disturbed on appeal, unless it appears that this discretion has been abused, or injus- tice has been done.^ But where an action involving real estate is brought in the wrong county, there is no discre- tion in the court, and the change of venue is a matter of right,^ which may, however, be waived.'' So where the action is one which the defendant is entitled to have tried in the county of his residence, if proper application for the change is made, it is the duty of the court to grant it, 2 Fletcher v. Stowell, 17 Colo. 94, State ex rel. Port Blankley Mill 28 Pac. 326. Co. v. Superior Court, 9 Wash. 673, :: Roberts v. People, 9 Colo. 458, 38 Pac. 155. 13 Pac. 630. •"' Smith v. People, 2 Colo. App. 4 Avila V. Meherin, 68 Cal. 478. 99, 29 Pac. 924, distinguishinj? 9 Pac. 428; Stockton Combined Fletcher v. Stowell, 17 Colo. 94, 28 Harvester & A. Works v. Houser, Pac. 326. 103 Cal. 377, 380, 37 Pac. 179; Bird o See Smith v. People, 2 Colo. V. Utica Gold Min. Co., 2 Cal. App. App. 99, 29 Pac. 924; Elam v. 673, 86 Pac. 509; De Wein v. Os- Griffin. 19 Nev. 443, 14 Pac. 582. born, 12 Colo. 407, 21 Pac. 189: See, also, ante, § 288. 493 §392 CODE PLEADING AND PRACTICE. [Pt. I, and the court has no discretion to refuse to hear the ap- plication, or to impose terms as a condition precedent to the hearing/ The right to a change of venue is to be determined by the condition of things existing at the time the parties claiming it first appeared in the action f party can not be deprived of the right by an amendment there- after made to the complaint or the adding of a new cause of action,'' or new parties defendant. ^*^ § 392. Application for change of place of trial — In GENERAL. After the service of process and a copy of the complaint upon the defendant, the attorney for defendant should make inquiry by examining the complaint as to whether the action is brought in the proper county, and if it is not, and a change of venue is desired, the defendant must at the proper time,^ and in the proper manner,- move the court for a change of the place of trial. This may be done after answer or demurrer^ upon affidavit of merits and notice to the plaintiff. In California, the notice to be given, as to time, is five days before the time appointed for the hearing, if the court is held in the 7 Watts V. White, 13 Cal. 321, 324; Watkins v. Degener, 63 Cal. 500; Hennessy v. Nicol, 105 Cal. 138, 38 Pac. 649; Thuber v. Thu- ber, 113 Cal. 607, 610, 45 Pac. 852; State V. Campbell, 3 Cal. App. 605, 86 Pac. 841; Fletcher v. Stowell, 17 Colo. 94, 97, 28 Pac. 326; Smith V. People, 2 Colo. App. 99, 105, 29 Pac. 649; Yore v. Murphy, 10 Mont. 304, 311, 25 Pac. 1039; Mc- Donnell V. Collins, 19 Mont. 372, 373, 48 Pac. 549; Clarke v. Lyon County, 8 Nev. 186; Elliott v. Whitmore, 10 Utah 246, 251, 37 Pac. 461. 8 Ah Pong V. Sternes, 79 Cal. 30, 33, 21 Pac. 381; Hennessy v. Nicol, 105 Cal. 138, 38 Pac. 649; Brady v. Times-Mirror Co., 106 Cal. 56, 62, 39 Pac. 209; Wallace v. Owsley, 11 Mont. 219, 221, 27 Pac. 790. 9 Ah Fong V. Sternes, 79 Cal. 30, 33, 21 Pac. 381; Warren v. Warren, 100 Cal. 11, 16, 34 Pac. 523; Bond V. Hurd, 31 Mont. 318, 3 Ann. Gas. 566, 78 Pac. 581. 10 Brady v. Times-Mirror Co., 106 Cal. 56, 58, 39 Pac. 209. 1 Demand before or after the proper time, we have already seen, is unavailing. — See, ante, § 389, footnotes 5-7. 2 As to manner of making de- mand for change of place of trial, see, post, § 394. 3 As to time of demand for change of place of trial, see, post, § 393. 494 eh. XVIL] APPLICATION FOR CHANGE. §§393,394 county in wMcli at least one of the attorneys of each party has his office ; otherwise, ten days ' notice must be given. When the notice is served by mail, the number of days before the hearing must be increased one day for every twenty-five miles of distance between the place of deposit and the place of service; such increase, however, not to exceed in all thirty days.^ § 393. As TO TIME OF APPLICATION. lu California, where the place in which the action is commenced is not the proper place of trial thereof, the defendant must file a written demand that the place of trial of the action be transferred to the proper court ; and this w^ritten demand must be filed at the time of filing his answer or demurrer by the defendant.^ Filing such demurrer before- or after^ that time mil be unavailing. § 394. As TO MANNER OF APPLICATION. The manner of application for a change of the place of trial, in Cali- fornia, is by filing an affidavit of the merits,^ which in its requisites and sufficiency is controlled to a certain extent by the cause or ground- for a change of the place of trial, and a written demand that a change in the place of the trial be made.^ The filing of the affida\4t of merits and the written demand for a change in the place of trial do not operate ipso facto, to change the place of trial. The change is effected only by an order of the court,"* after its judicial action has been invoked, by bringing the demand 4 See Kerr's Cyc. Cal. Code Civ. 2 As cause or grounds for change Proc, 2d ed., § 1005; Consolidated of place of trial, see, post, § 396. Supp 1906-1913, p. 1710. •"• See Kerr's Cyc. Cal. Code Civ. 1 See Kerr's Cyc. Cal. Code Civ. P^o^- 2d ed § 396; Consolidated Proc, 2d ed.,§ 396; Consolidated Supp. 1906-191, p. 142 . a iQnciQi9 r. 1497 As to form of demand, see Jury's Supp. 1906-1913, p. 1427. - r^. j- Adjudicated Forms of Pleading 2 See, supra, §389, footnote 6. ^^^ Practice, vol. 2, p. 1814, Form 3 Id., footnote 7. No. 1097. 1 As to affidavit of merits, see. 4 As to order for change of the post, § 401. place of trial, see, post, § 434. 495 §395 CODE PLEADING AND PRACTICE. [Pt. I, on for hearing, on notice,^ in which hearing the defend- ant's right to a change of the place of trial may be con- tested.^ Under the California Code of Civil Procedure the hearing is brought on by a motion duly made^ in the court in which the action is pending^ and due notice of the hearing given ;^ and this motion and notice are neces- sary steps in the proceedings for a transfer of the place of trial of a cause of action.^" Even in those cases in which a defendant has an absolute right to a transfer, he may waive that right,^^ and the trial may be had in the county in which the action is brought ;^^ and where the defendant fails to follow the procedure provided in the Code of Civil Procedure to obtain an order for the trans- fer of the trial of a cause in the proper county, he is deemed to have waived his right.^^ § 395, As TO EFFECT OF APPLICATION. An application for and a demand of a change of the place of trial of a cause, made in accordance with the provisions of the stat- utes of the particular jurisdiction, and at the time pro- vided, has the effect to deprive the court in which the action is commenced, and to which the application is made, of all jurisdiction to proceed with the cause, other than to hear and determine the application for and de- mand of a change in the place of trial of the cause. ^ If 5 Bohn V. Bohn, 164 Cal. 532, 129 Pac. 981, old. 7 See Kerr's Cyc. Cal. Code Civ. Proc, § 1003. sid., § 1004. 9 See, supra, § 392, text and foot- note 4. 10 Bohn V. Bohn, 164 Cal. 532, 129 Pac. 981. 11 See, ante, § 388. 12 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427. 13 Bohn V. Bohn, 164 Cal. 532, 129 Pac. 981. 1 Watts V. White, 13 Cal. 321; Cook V. Pendergast, 61 Cal. 72; Heald v. Hendy, 65 Cal. 321, 4 Pac. 27; Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209; Chase v. Superior Court, 154 Cal. 789, 99 Pac. 355; Smith v. People, 2 Colo. App. 99, 29 Pac. 924, distinguishing Fletcher v. Stowell, 17 Colo. 94, 28 Pac. 326; Veeder v. Baker, 83 N. Y. 156; Bonnell v. Easterly, 30 Wis. 549; Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468; Meiners v. Loeb, 64 Wis. 343. 25 N. W. 216. No further proceedings can be had in the action until the motion 496 Ch. XVII.] CAUSES TO WHICH APPLICABLE. § 396 the application is granted, that terminates the jurisdic- tion and power of the court granting the order,- the act of transmitting the papers in the cause to the court or county to which transferred being merely a ministerial act to be performed by the clerk of the court granting the order.^ At the time of making and entering the order of change in the place of trial, the court to which the cause is transferred acquires jurisdiction.'* <§> 396. As TO CAUSES OF ACTION TO WHICH APPLICABLE. The classes of causes of action to which an application for a change in the place of trial applies include : (1) Civil actions, both at law and in equity, and (2) criminal ac- tions. In civil actions it includes (1) real and local actions, and (2) personal and transitory actions, and the personal privilege is more usually exercised in transitory actions of the residentiary class than any other class of actions. As to real actions, we have already seen^ that in such actions, — e. g. action to enforce a lien on land, where the county has been divided after the action is commenced, and the land by such division of the county thrown into a county other than the original county in which the action commenced, — the court of the latter county does not lose its jurisdiction, in California. The rule seems to be other- wise in some jurisdictions, ^ but where a different rule prevails the change of the place of trial to the newly organized county does not affect the cause of action.^ Is disposed of. — Smith v. People, 3 See Kerr's Cyc. Cal. Code Civ. 2 Colo. App. 99, 105, 29 Pac. 924. Proc, 2d ed., §399; Consolidated — Court can not entertain mo- Supp. 1906-1913, p. 1432. tion to amend complaint, effect of 4 chase v. Superior Court, 154 which would be to defeat motion cal. 789, 99 Pac. 355. for change.-Brady v. Times-Mir- g^ g 43g footnote 1. ror Co., 106 Cal. 56, 61, 39 Pac. 209. „ „ . . X • J * 1 See, ante, § 329. 2 Makmg and entering order ter- minates jurisdiction. — Chase v. - Bookwalter v. Conrad, 15 Mont. Superior Court, 154 Cal. 789, 99 464, 39 Pac. 373. Pac. 355. 3 Id. I Code PI. and Pr.— 32 497 § 397 CODE PLEADING AND PRACTICE. [Pt. I, § 397. Specific instances. It is impracti- cable to lay down rules governing all the classes of cases in which a right to a change in the place of trial exists, because the right in any given case depends entirely upon the statutory provisions of the particular jurisdiction. Tt may be helpful to here collect instances of the various classes of causes of action in which it has been held that the right to a change in the place of trial exists ; but it must be remembered that each case cited is governed by the statutes of the particular jurisdiction and may not be a safe precedent to follow in a jurisdiction in which the statutory provisions are not the same. Thus the right has been held to apply to causes of actions and proceed- ings in justices ' and mayors ' courts/ but not to superior or other court of another county,^ and only after final judgment in some jurisdictions f actions by state con- troller to recover money coming into defendant's hands in his official capacity;^ action for false imprisonment;^ action for forcible entry and detainer;^ action for pen- alty for violation of fish and game laws -^ action for eject- ment,'* although the contrary has been held;® action on \ Palmer v. Snyder, 67 Cal. 105, Powell v. Sutro, 80 Cal. 559, 24 7 Pac. 196; Gross v. Superior Pac. 308. Court, 71 Cal. 382, 12 Pac. 264; 3 Evans v. Phelps, 77 Iowa 526, Luce V. Superior Court, 71 Cal. 555, ^^ N- W. 432. 557, 12 Pac. 677; Smelzer v. Lock- ' ^tate v. Campbell. 3 Cal. App. 604, 86 Pac. 841. 5 Ah Fong V. Sternes, 79 Cal. 30, 21 Pac. 381. Ky. 18;Garst,Inre,10Neb.78, e Monson v. Coleman. 86 Mo. hart, 97 Ind. 315; Finch v. Marvin. 46 Iowa 384; Byram v. Holliday. 4 N. W. 511. App. 18. On appeal from justices' court 7 People v. Coughtry, 58 Hun no change allowed in Iowa. — Boi- (n, y.) 245, 12 N. Y. Supp. 259; lean v. Chicago, B. & Q. R. Co., 69 affirmed, 125 N. Y. 723. 3 Silv. Ct. Iowa 324, 28 N. "W. 621. But see App. Rep. 372. Browne v. Hickie, 68 Iowa 330, 27 s Campau v. Dew^ey. 9 Mich. 381; N. W. 276. Meldrum v. Servis, 1 N. J. L. 2 Gross V. Superior Court, 71 Cal. (Coxe) 203. 382, 12 Pac. 264; Luco v. Superior 9 Atkinson v, Holcomb, 4 Cow. Court, 71 Cal. 555, 12 Pac. 677; (N. Y.) 45. 498 I ch. XVII.] CAUSES TO WHICH APPLICABIiE. §397 bond, in debt;^° action to collect delinquent tax on real estate, can be no change to another county ;^^ action to forfeit franchise of corporation;^- action to recover real property ;^^ action to restrain enforcement of judgment;^"* action to set aside conveyance of land;^^ action to vacate decree;^*"' appeal from board of highway commissioners,^" board of viewers in condemnation proceedings,^^ excise commissioners,^^ and other boards, commissions and in- ferior tribunals ; and also in bastardy proceedings ;-'' in causes not triable by jury;^^ condemnation pro- ceedings prosecuted under power of eminent domain ;-- 10 Meldrum v. Sarvis, 1 N. J. L. (Coxe) 203. 11 State V. Shaw, 21 Nev. 222, 29 Pac. 321. 12 Bel Air Social, Literary, Musi- cal & Dramatic Club v. State, 74 Md. 297, 22 Atl. 68. 13 See Hancock v. Burton, 61 Cal. 70; Duffy v. Duffy, 104 Cal. 602, 38 Pac. 443; Staacke v. Bell, 125 Cal. 309, 314, 57 Pac. 1012; Campau v. Dewey, 9 Mich. 381. Compare: Deacon v. Shreve, 23 N. J. L. (3 Zab.) 204. Fraud true basis of action, trans- fer to county in which land af- fected situated denied in Coch- rane V. McDonald, 4 Cof. Prob. (Cal.) 538. 14 State V. Price, 38 Mo. 382. 15 Henderson v. Henderson, 55 Mo. 534; Wyatt v. Brooks, 42 Hun (N. Y.) 502. 16 State V. Whitcomb, 52 Iowa 85, 35 Am. Rep. 258, 2 N. W. 970. 17 Schmied v. Keeney, 72 Ind. 309. See, also, post, footnote 50, this section. 18 See, post, footnote 22, this sec- tion. I !> State V. Vierling, 33 Ind. 99; Blair v. Vierling, 33 Ind. 269; Blair V. Kilpatrick, 40 Ind. 312; Blair v. Rutenfranz, 40 Ind. 318. See, also, post, footnote 40, this section. 20 Saint v. State, 68 Ind. 128. 21 See footnotes 33 and 41, this section. Express statutory authority said to be necessary for transfer of this class of causes. — See Williams, Ex parte, 12 Tenn. (4 Yerg.) 579. In Oklahoma right of change de- clared not within statute. — See Dean v. Stone, 2 Okla. 13, 35 Pac. 578. 22 State V. Rowe, 69 Ark. 642, 65 S. W. 463; Whitney v. Atlantic Southern R. Co., 53 Iowa 651, 6 N. W. 32; Simmons v. St. Paul & C. R. Co., 18 Minn. 184; Lehmicke V. St. Paul, S. & T. F. R. Co., 19 Minn. 464; St. Louis, O. H. & C. R. Co. V. Fowler, 113 Mo. 458, 3 Bal- lard's Real Prop. 317, 20 S. W. 1069; Pinno v. Lackawanna & B. R. Co., 43 Pa. St. 361. In Michigan a different rule pre- vails. — See Michigan, O. & I. R. Co. V. Circuit Judge, 144 Mich. 44, 107 N. W. 704; followed in Grand Rapids & I. R. Co. v. Circuit Judge, 154 Mich. 493, 117 N. W. 1050. 499 §397 CODE PLEADING AND PRACTICE. I't. i. contempt proceedings;-^ disbarment proceedings;-' divorce proceedings,-^ but not of application for modification of judgment or decree as to alimony or custody of children ;-^ drainage proceedings, either for incorporation of district and locating bound- aries-' or location of the ditch ;-^ election contest,-'* though the contrary has been held;^° garnishment pro- ceedings;^^ habeas corpus proceedings;^- hearing on demurrer ;^^ insolvency proceedings not removable,-*'* but creditor's petition upon ground of defects is;^" interpleader procedure f^ mandamus proceedings ;"' — The reason for the rule is placed on the ground that such proceedings, though subject to ju- dicial review, are not in them- selves judicial, the proceedings being conducted before a tempor- ary tribunal selected for the occa- sion.— Toledo, Ann Arbor & G. T. R. Co. V. Dunlap, 47 Mich. 456, 11 N. W. 271; Port Huron & S. W. R. Co. V. Voorhis, 50 Mich. 506, 15 N. W. 882. -'3 Crook V. People, 16 111. 534; State ex rel. Norris v. District Court, 52 Minn. 283, 59 N. W. 457; Haley, Ex parte, 99 Mo. 150; Penn V. Messinger, 1 Yeates (Pa.) 2; Lamonte v. Ward, 36 Wis. 558. -'4 Darrow, In re, 175 Ind. 44, 92 N. E. 369; see 83 N. E. 1026; Grif- fin, In re, 33 Ind. App. 153, 69 N. E. 192; State v. Clarke, 46 Iowa 155; Slemmer v. Wright, 46 Iowa 705; Peyton, In re, 12 Kan. 398; State v. Smith, 176 Mo. 90, 75 S. W. 586. In Oklahoma held otherwise in Dean v. Stone, 2 Okla. 13, 35 Pac. 578. 25 Usher v. Usher, 4 Cal. Unrep. 521, 36 Pac. 8; Warner v. Warner, 100 Cal. 11, 34 Pac. 523; McPike v. McPike, 10 111. App. 332; Evans v. Evans, 105 Ind. 204, 5 N. E. 24. 768; Craven v. Craven, 27 Wis. 418. 26 Cole V. Cole, 89 Mo. App. 228; Bacon v. Bacon, 34 Wis. 594; Hop- kins V. Hopkins, 40 Wis. 462. Compare: McPike v. McPike, 10 111. App. 332. 27 State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 12 L. R. A. (N. S.) 900, 101 S. W. 567. 2S Bass V. Elliott, 105 Ind. 517, 5 N. E. 663. 29 Weakley v. Wolf, 148 Ind. 208, 47 N. E. 466. 30 Wise V. Martin, 36 Ark. 305. 31 State ex rel. Wyman, Par- tridge & Co. V. Superior Court, 40 Wash. 443, 448, 111 Am. St. Rep. 915, 5 Ann. Cas. 775. 2 L. R. A. (N. S.) 568, 82 Pac. 876. 32 Garner v. Gordon, 41 Ind. 92. 33 Thurber v. Brown, 2 Hill (N. Y.) 382. See footnotes 21 and 41, this section. 34 Michael v. Schroeder, 4 Har. 6 J. (Md.) 227; Scott v. Circuit Judge, 58 Mich. 311, 25 N. W. 200; Heath, In re, 136 Mo. App. 347, 117 S. W. 125; Acker v. Leland, 96 N. Y. 383. 35 Kittridge v. Kinne, 80 Mich. 200, 44 N. W. 1051. 36 Giett V. McGannon :Mercantile Co., 74 Mo. App. 209. 37 Woodworth v. Old Second Nat. Bank, 144 Mich. 338, 8 Ann. 500 ch. XVII.] CAUSES TO WHICH APPLICABLE. §397 motion for leave to issue execution on dormant judg- ment f^ motion for a new trial f'-^ on certiorari to review proceedings in inferior court in excise cases, — e. g. as to liquor license;*^ on issues of law;^^ probate court pro- ceedings*^ where trial of issues is involved,'*^ the appoint- ment of a guardian/* and the like, hearing of claim against the estate of a decedent,*^ hearing of matters re- Cas. 310, 107 N. W. 905; Williams- port, City of, V. Com., 90 Pa. St. 498; Barnett v. Ashmore, 5 Wash. 163, 31 Pac. 466. See note 8 Ann. Gas. 311. Mandamus against county treas- urer to compel him to pay to the state treasurer certain moneys al- leged to be due the state from the county on account of children committed from that county to the California Home for Feeble Minded Children, is triable in the county in which the defendant re- sides, notwithstanding the fact that it is the duty of the treasurer to pay over the money at the state capital, where the suit is brought. — State Commission in Lunacy v. Welch, 154 Cal. 775, 99 Pac. 181. 38 Jaseph V. Schneppcr, 1 Ind. App. 154, 27 N. E. 305. 39 Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746; Upton v. Upton, 94 Cal. 26, 27, 29 Pac. 411; State ex rel. Carleton v. District Court, 33 Mont. 138, 145, 8 Ann. Cas. 752, 82 Pac. 789. 40 State V. Denton, 128 Mo. App. 304, 107 S. W. 446. See, ante, footnote 19, this sec- tion. 41 Clark V. Van Deusen, 3 N. Y. Code Rep. 219. See footnote 33, this section. Construction of written instru- ment only question in cause, which was correctly decided by the trial judge, his refusal to change the place of trial because of his al- leged prejudice, held to be imma- terial in Goodwin v. Goodwin, 65 111. 497. 42 People ex rel. Burdell v. Almy, 46 Cal. 245; Rogers v. How- ard, 4 Ind. 325; Townsend v. Townsend, 9 Gill (Md.) 506. Compare: Carter v. Cutting, 2 Cr. 58, Fed. Cas. No. 2476. See, also, cases cited in foot- notes 43-49. this section. 4 3 White's Estate, In re, 37 Cal. 190; People ex rel. Burdell v. Pro- bate Court, 46 Cal. 245; Spreckels V. De Bolt, 16 Hawaii 479; Rogers V. Howard, 4 Ind. 325; Townsend V. Townsend, 9 Gill (Md.) 506; Backus V. Cheney, 80 Mich. 17, 12 Atl. 635; Jackman's Will Case, 27 Wis. 409. Compare: Byram v. Holliday, 84 Ky. 18; Morris v. Lane, 44 Mo. App. 1. Failure to object waiver of right to change of place of trial.— United Real Estate & Trust Co. v. Barnes, 159 Cal. 242, 113 Pac. 107. See, also, ante, § 388. 44 Berry v. Berry, 147 Ind. 170, 46 N. E. 470. 45 Lester v. Lester, 70 Ind. 201 ; State Treasurer v. Wygall, 46 Tex. 447. But see Everroad v. Lewis, 16 Ind. App. 65, 43 N. E. 1010. 501 §398 CODE PLEADING AND PRACTICE. [Pt. I, garding tlie administration of an estate,^® a (vill contest/' and the like; but is otherwise as to the probate of a will, which must be had in the county of the residence of de- cedent/^ or the trial of an application for the removal of an administrator/^ proceedings to locate a highway,''" although the contrary has been held f^ quo warranto pro- ceedings^^ can be heard in the court directed by the supreme court, only/^ in special proceedings, as distin- g-uished from civil actions, ^^ but where statute designates the court, there can be no change in the place of trial ;^^ and in supplementary proceedings.^® § 398. Who may apply fob change — Plaintiffs. The plaintilf as w^ell as the defendant may have the place of the trial of an action changed whenever he can show a proper cause therefor under the provisions of the statute regulating the change of the place of a trial in the partic- ular jurisdiction/ the fact that the plaintiff has brought an action in a particular county does not estop him, — should cause thereafter arise or be discovered there- for, — from applying for a removal of the trial of the 46 Sloss V. De Toro, 77 Cal. 129, 19 Pac. 233; Frasier v. Circuit Judge, 48 Mich. 176; Treasurer v. Wygall, 44 Tex. 447. 47 Rogers v. Howard, 4 Ind. 325. 48 Byram v. HoUiday, 84 Ky. 18. 49 Bowen V. Stewart, 128 Ind. 507, 26 N. E. 168, 28 N. E. 73. 50 Schmied v. Keeney, 72 Ind, 309. 51 Williams, Ex parte, 12 Tenn. (4 Yerg.) 570. 52 As to proceedings to forfeit franchise, see, ante, footnote 12, this section. 53 State V. Townsley, 56 Mo. 107. 54 Weakley v. Wolf, 148 Ind. 208. 47 N. E. 466; Hadley, In re, 44 Misc. (N. Y.) 265, 89 N. Y. Supp. 910: Griffin, In re, 83 Ind. App. 153, 69 N. E. 192; Whitney v. Atlantic & Southern R. Co., 53 Iowa 651, 6 N. W^ 32. Special proceeding for which statute designates the court, trial can not be changed. 55 Scott V. Circuit Judge, 58 Mich. 311, 25 N. W. 200. 56 Burkett v. Holman, 104 Ind. 6, 3 N. E. 406; Burkett v. Bowen, 104 Ind. 184, 3 N. E. 678; Burkett v. Bowen, 118 Ind. 379, 381, 21 N. E. 38; Burkett v. Haleman, 119 Ind. 141, 21 N. E. 470. 1 Grewell v. W a 1 d e n, 23 Cal. 165; Payne v. Smith, 19 Wend. (N. Y.) 122; Crary v. Reid, 3 How. Pr. (N. Y.) 76. 502 i|| eh. XVII.] CHANGE— BY DEFENDANT. § 399 cause to another county.^ When on application by the plaintiff for a change of venue there are no opposing affidavits, it is error for the trial court to refuse to grant the application.^ Where, however, there are conflicting rights, or if the motion be made on the ground of the convenience of witnesses, and there are conflicting affi- davits, the court may exercise its discretion, and its ruling will not be disturbed except in cases where this discretion has been abused.^ The mere preponderance of witnesses on one side is not necessarily decisive of the motion.^ Nor is the court bound, of its own motion, to change the venue. The right to a change is a mere privilege which may be waived." The proceeding being purely statutory, is gov- erned by the statutory provisions and the judicial deci- sions of the particular jurisdiction. § 399. Defendants — In general. Under the Cali- fornia statute, — and the same is true in all jurisdictions having the same or a similar statutory provision, — the defendant has a right to have the cause of action tried in the county of his residence, except where it is otherwise provided by statutory enactments. And a court has no jurisdiction to try an action against a defendant who is not a resident of the county and has not been served with process therein, if the defendant, at the time he appears and demurs or answers, files an affidavit of merits and demands that the trial be had in the proper county.^ The right of the defendant to have the venue changed to the 2 Willoughby v. Northeastern R. Hearne v. De Young, 111 Cal. 373, Co., 46 S. C. 317, 24 S. E. 308. 43 Pac. l'\S; Wadleigh v. Phelps, 3Grewell v. W a 1 d e n, 23 Cal. 147 Cal. 541, 543, 82 Pac. 200; 165. Scott V. Hoover, 99 Fed. 249. 4 See, post, § 420. See. also, ante, § 288. fi Hanchett V. Finch, 47 Cal. 192; Kennedy v. Derrickson, ") Wash. Cook V. Pendergast. 61 Cal. 72; 289. 31 Pac 366. Bird V. Utica Gold Min. Co., 2 Cal. i See: Watkins v. Degener, 63 App. 673. 86 Pac. 509. Cal. 500: State ex rel. Cumniings Pac. 319; Eddy v. Houghton, 6 Pac. 313; Bond v. Karnui-Ajax Cal. App. 85, 91 Pac. 397; Krogh Consol. Min. Co., 15 Cal. App. 474, V. Pacific Gateway & Devel. Co., 115 Pac. 256. 11 Cal. App. 437, 440, 104 Pac. 1 4 Under Kerr's Cyc. Cal. Code 698. Civ. Proc, § 386. 505 s^400 CODE PLEADING AND PRACTICE. [Pi. I inal defendant to demand such a cbange.^^ But in those cases in which the intervention is voluntary on the part of a person who may be liable to the defendant in the event of a recover^' against him, the rule is different,^** because intervention can be permitted for the protection of substantial rights, only,^" and if a party does not like the form of the action or the place of the trial he should not seek to become a party to the action. ^^ §400. Co-DEFEXDANTs MUST JOIN. The rule is well settled in California that all of the defendants must join in the application for a change of the place of trial, or a good reason shown why they do not;^ otherwise it will be denied.- Complaint showing on its face that both resident and nonresident defendants are unneces- sary parties, they occupy the same relation to each other as they would if necessary parties, and rights of resident defendant determine place of trial. '^ The motion may be made by one of several defendants^ on notice to the other 15 Howell V. Stetefeldt Furnace Co., 69 Cal. 153, 10 Pac. 390. 16 See German Sav. Bank v. Citizens' Nat. Bank, 101 Iowa 530, 63 Am. St. Rep. 399, 70 N. W. 769. IT Kenner's Syndics v. Holliday, 19 La. 154. IS Id. See, also, note, 16 Am. Dec. 180. 1 Fickens v. Jones (unreported, decided Oct. 1863), 2 Park. Cal. Dig., p. 83, §29; Pieper v. Cen- tinela Land Co., 56 Cal. 173, 175: McKenzie v. Barling, 101 Cal. 4.59. 36 Pac. 8; Sailly v. Hutton, 6 Wend. (N. Y.) 508; Legg v. Dor- sheim, 19 Wend. (N. Y.) 700; Welling V. Sweet, 1 How. Pr. (N. Y.) 156; Simmons v. McDoug- all, 2 How. Pr. (X. Y.) 77. Corporation and personal defen- dants in transitory action brought outside of the county of the resi- dence of the personal defendants, the fact that the corporation did not unite in the demand for a change of the place of trial to the county of the residence of such personal defendants, was held not to affect their right to such change in the absence of a showing that the action was brought in the county in which the corporation had its principal office and place of business, in Pittsman v. Car- stenbrook. 11 Cal. App. 224, 227, 104 Pac. 699. 2 Id. 3 Hannon v. Nuevo Land Co., 14 Cal. App. 700, 704-5, 112 Pac. 1103, following McKenzie v. Barl- ing, 101 Cal. 459, 36 Pac. 8. 4 See: McSherry v. Pennsyl- vania Consol. Gold Min. Co., 97 Cal. 637, 32 Pac. 711; Bachman v. Cathry, 113 Cal. 498, 45 Pac. 814; 506 eh. XVII.] AFFIDAVIT OF MERITS. §401 defendants, unless they be in default ; or a defendant sub- sequently served, after a similar motion by another de- fendant has been denied, may move for a change of place of trial. •'^^ This, however, can not be done where part of the defendants live in the county where the action is brought, if the motion is made on the ground that the action is not brought where defendants reside.*^ In an action to determine rights to real estate against several parties, a defendant is entitled, as a matter of right, to have the action tried in the county in which the real estate is situated,'^ and all the defendants need not join in claim- ing such rights.'' So, if several defendants are sued as sureties on a bond, an affida\dt of merits'' in support of a motion for a change of the place of trial need not be made by more than one of them.^" And an application for a change of the place of trial to the proper county, made by all the defendants who had been served at the time, can not be adversely affected by the fact that before its deter- mination another defendant has been served, but has failed to join in the application.^^ § 401. Affidavit of merits — In general. The Cali- fornia Code of Civil Procedure requires that a defendant seeking a change in the place of trial of the cause, at the time of filing his answer or demurrer, shall file an affidavit Mairs v. Remsen, 3 N. Y. Code trial to the county in which the Rep. 138; Bergman v. Noble, 10 land affected is located does not N. Y. Civ. Proc. Rep. 190. prevail. — Cochrane v. McDonald, 4 5 New Jersey Zinc Co. v. Blood, Cof. Prob. (Cal.) 537, 545. 8 Abb. Pr. (N. Y.) 147. ^ ^^ *° affidavit of merits, see, « See Kerr's Cyc. Cal. Code Civ. P^^^' §§ ^01-404. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. 10 Rowland v. Coyne, 55 Cal. 1; People ex rel. Board of Harbor Commrs. v. Larue, 66 Cal. 235, 5 7 See. ante, §§323 and 324. p^^ j^.. p^,,^^^^ ^ n-avc\ay. 92 sSee: O'Neil v. O'Neil, 54 Cal. cal. 199, 28 Pac. 226; McSherry 187, 188; Warner v. Warner, 100 y. Pennsylvania Consol. Gold Min. Cal. 11, 16, 34 Pac. 523. Co., 97 Cal. 637, 32 Pac. 711. Fraud basis of action the rule as ii Gtate ex rel. Allen v. Superior to right to change the place of Court, 9 Wash. 668, 38 Pac. 206. 507 § 402 CODE PLEADING AND PRACTICE. [Pt. I, of merits,^ without any specific provision as to what that affidavit shall contain or by whom it shall be made, where there is more than one defendant; these matters have been left entirely to judicial interpretation. § 402. Form and sufficiency of affidavit.^ An affidavit of merits must be in the usual form of affidavit sworn to by one of the defendants^ appearing and answering or demurring in the action, and is sufficient where it states that the affiant is a defendant in the action and has a personal knowledge of all the matters to be put in issue therein ; that he has fully and fairly stated all the facts to his attorney, giving the name of such attorney, and that after said statement was informed by such attorney that he had a good and valid defense to said action, and that he verily believes that he has such de- fense.^ But it is not sufficient to allege in such affidavit that affiant has ''fully stated his cause" ;^ or has ''fully stated his defense";^ or has stated "all the grounds of 1 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §395; Consolidated Supp. 1906-1913, p. 1425. 1 As to form of affidavit of merits, see Jury's Adjudicated Forms of Pleading and Practice, vol. 2, p. 1815, form No. 1099. 2 See, post, § 403. 3 Rowland v. Coyne, 55 Cal. 1, 4. Defendant a counselor at law, it seems that the affidavit of merits m a y be modified accordingly. — Cromwell v. Van Rensselaer, 3 Cow. (N. Y.) 346. Facts relied upon as a defense need not be stated in the affidavit of merits. — State ex rel. Stephens V. District Court, 43 Mont. 571, Ann. Cas. 1912C. 343, 118' Pac. 268. Failure to allege defendant be- lieved the advice of his counsel that he had a good defense, does not render an affidavit of merits, otherwise good and sufficient, de- fective.— Watt v. Bradley, 95 Cal. 415, 30 Pac. 557. 4 People ex rel. State Board of Harbor Commrs. v. Laure, 66 Cal. 235, 236, 5 Pac. 157; Johnson v. Walden (Cal. Sept. 18, 1886), 12 Pac. 257; Cooper-Power v. Hanlon, 7 Cal. App. 725, 95 Pac. 679. Alleging he stated "his case" to his counsel is equivalent to saying that he stated "his defense," and not equivalent to saying that he stated "the case." — People ex rel. State Board of Harbor Commrs. v. Laure, 66 Cal. 235, 236, 5 Pac. 157. 5 Nickerson v. California Raisin Co., 61 Cal. 268. 508 Ch. XVII.] AFFIDAVIT OP MERITS— AMENDING. §§408,404 his defense";*' or ''all facts of liis defense";" or lias ''fully and fairly stated all the facts constituting his de- fense";'^ or has fully stated "the case in this action";® or has stated "all the facts. "^^ It must appear from the face of the affidavit that affiant has stated to his attorney' all the facts in the case, and after such a statement was informed by such attorney that he had a good and suf- ficient defense. § 403. Amendment op affidavit of merits. The trial court, in the exercise of a sound discretion, may permit the amendment of an insufficient affidavit of mer- its,^ and the objection that the amended affidavit can not be considered for the reason that it was not filed at the time of filing the answer or demurrer, as the Code of Civil Procedure requires,^ is not available;^ and such amended affidavit of merits, otherwise sufficient, will be good if sworn to by a co-defendant other than the one who veri- fied the original affidavit of merits.* § 404. By one co-defendant for all. Where there are two or more defendants in, an action in which a change in the place of the trial is sought, it is not necessary that all the defendants should sign the affidavit of merits or each make a separate affidavit of merits, where all join in the demand for such change. Thus it has been expressly held that an affidavit of merits, used at the hearing of a motion for a change in the place of trial of a cause, in behalf of each and all of the defendants, made by one of 6 Johnson V. Walden (Cal. Sept. lo Jensen v. Dorr, 9 Cal. App. 18, 1886), 12 Pac. 257. 19, 98 Pac. 46. 7 Morgan v. McDonald, 70 Cal. i See: Burnham v. Hays, 3 Cal. 32, 11 Pac. 350; Palmer v. Bar- 115, 58 Am. Dec. 389; Palmer v. clay, 92 Cal. 199, 201, 28 Pac. 226. Barclay, 92 Cal. 199, 201, 28 Pac. 8 Palmer v. Barclay, 92 Cal. 199, 226; Pittman v. Carstenbrook, 11 201, 28 Pac. 226; Cooper-Power v. Cal. App. 230, 104 Pac. 702. Hanlon, 7 Cal. App. 725, 95 Pac. 2 See, ante, § 401. 679. 3 Palmer v. Barclay, 92 Cal. 199, 9 Watkins v. Degener, 63 Cal. 202, 28 Pac. 226. 500. 4 Id. 509 §405 CODE PLEADING AND PRACTICE. [Pt. T, the co-defendants therein, wliicli recites that the affiant makes it for each and all of the defendants and at their request, and that the affiant and the other co-defendants have fully and fairly stated the facts of the case to tlieir respective attorneys, who, upon such statement advised (or informed)^ each and all of them that they had a good and substantial defense upon the merits of the action, which each and all of them believed to be true, is in all respects sufficient, and is not objectionable because made by one of the co-defendants only.^ <§. 405. Causes or grounds for change of place of trl\l. Under the provisions of the California Code of Ci\dl Pro- cedure,^ if the county in which the action be commenced is not the proper county for the trial thereof, the defen- dant has a statutory right to have the same transferred to such county,- and the court has no discretion but to grant it.^ It may, however, be tried in the county in which the action is brought, unless the defendant, at the time he appears and answers or demurs, files an affida\dt of merits, and demands, in w^riting, that the trial be had in the proper county.^ Besides the right of the defendant to a change of venue because the county designated in tlie complaint is not the proper county, the court may also, on motion, change the place of trial (1) when there is reason to believe that an impartial trial can not be had therein;^ (2) when the convenience of ^vitnesses and the 1 "Informed" instead of "ad- vised" was held to be sufficient in an affidavit of merits in Rowland V. Coyne, 55 Cal. 1, 4. 2 Palmer v. Barclay, 92 Cal. 199, 202, 28 Pac. 226. See McSherry v. Pennsylvania Consol. Gold M i n. Co., 97 Cal. 637, 642, 32 Pac. 711. 1 See Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §397; Consolidated Supp. 1906-1913, p. 1429. 2 Id., par. 1; Hennessy v. Nicol, 105 Cal. 138, 139, 38 Pac. 649: Wasson v. Hoffman, 4 Colo. App. 491, 36 Pac. 445. 3 Id. ; S t a t e ex rel. Colgan v. Campbell, 3 Cal. App. 602, 605, 86 Pac. 840. ■i Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427. 5 Id., § 397, par. 2. Bias and prejudice of vicinage alleged and tried upon conflicting affidavits, the voir dire examina- tion of jurors not being in the ilO ch. XVII.] GROUNDS FOR ClIAXGE, §405 ends of justice would be promoted by the change;^ and (3) when from any cause the judge is disqualified from acting.'^ The court has no authority to change the place of trial of a civil cause except as provided by statute.^ If the defendant desires a change of the place of trisd, on the gi'ound that the county designated in the complaint is not the proper county, he must demand a transfer at the time he appears by demurrer or answer,^ and when so made can not be resisted on ground of convenience of Avitnesses.^" If his motion to change the place of trial is brought to a hearing before he has answ^ered, the plaintiff can not, by a cross-motion, demand the retention of the action in the county where it is pending, on the ground of convenience of witnesses and the promotion of the ends of justice. ^^ It is only in cases wh'ere the change is asked record, a denial of the motion will not be reviewed on appeal. — Car- penter V. Sibley, 13 Cal. App. 592, 119 Pac. 391. 6 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §397, par. 3; Con- solidated Supp. 1906-1913, p. 1429. Conclusions of law in counter- affidavits can not be considered on the hearing of the motion for a change of a place of trial for the convenience of witnesses. — See Carr v. Stern, 17 Cal. App. 405, 120 Pac. 35. 7 Id., § 397, par. 4. s Commercial Nat. Bank v. Davidson, 18 Ore. 57, 58, 22 Pac. 517. 9 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427; Pearkes v. Freer, 9 Cal. 642; Cook v. Pen- dergast, 61 Cal. 72, 78; Pennie v. Visher, 94 Cal. 323, 29 Pac. 711; Dennison v. Chapman, 102 Cal. 618, 36 Pac. 943; Smith v. Pelton Water Wheel Co., 151 Cal. 401, 90 Pac. 933. After demurrer to amended complaint is too late. — Jones v. Frost, 28 Cal. 246. Answer filed contemporaneously with demand for change of place of trial does not constitute a waiver of the right to a change.— Mohe V. Reynolds, 38 Cal. 560, 562. Answer without objection to the jurisdiction of the court is a waiver of the right to a change of the place of trial. — Clarke v. Lyon County, 8 Nev. 186. General demurrer constitutes a waiver of the right. — Scott v. Hoover, 99 Fed. 248. As to waiver and estoppel, see, ante, §§ 357 and 388. 10 Cook V. Pendergast, 61 Cal. 72, 76 ; Armstrong v. Superior Court, 63 Cal. 411. 11 See: Tooms v. Randall, 3 Cal. 438; Reyes v. Sanford, 5 Cal. 117; Pearkes v. Freer, 9 Cal. 642; Jones V. Frost, 28 Cal. 245, 246; Mohe V. Reynolds, 38 Cal. 560; Cook v. Pendergast. 61 Cal. 72, 79; Heald V. Hendy, 65 Cal. 321, 4 Pac. 27. 511 §406 CODE PLEADING AND PRACTICE. [Pt. I, because the county designated in the complaint is not the proper county that the motion for the change must pre- cede or accompany the answer or demurrer.^- The motion may be made by the defendant, on any other statutory ground, without the affidavit of merits and demand, within a reasonable time after his appearance, ^^ Such motions, however, being dilatory, must be prosecuted with dili- gence.^* § 406. Counter-motion to retain cause. In those cases in which a demand is made for a change of the trial of a cause at the time of filing an answer on the merits,^ on the ground that the action is brought in a county other than that of the defendant's residence, the plaintiff, if he wishes to have the action tried in the county in which it w^as commenced, on account of the convenience of wit- nesses, must make a counter-motion to have the cause Answer must be in before either party can move on ground of con- venience of witnesses. — Cook v. Pendergast, 61 Cal. 72, 79; Thomas V. Placerville Gold Quartz M i n. Co., 65 Cal. GOO, 601, 4 Pac. 641; Wong Fung Hing v. San Francisco Relief & Red Cross Funds, 15 Cal. App. 537, 539, 115 Pac. 331. — Remand motion, on ground of convenience of witnesses, can not he made until the answer is filed and the issues of fact are joined. — Pascoe v. Baker, 158 Cal. 234, 110 Pac. 816. 12 See Pascoe v. Baker, 158 Cal. 232, 104 Pac. 699. 13 In Colorado, and the same is true in other jurisdictions with like statutory provisions, the ap- plication for a change in the place of trial must be made at the earliest moment. — Roberts v. Peo- ple, 9 Colo. 458, 13 Pac. 630. In Nevada an unjustifiable delay in making application for a chango of the place of trial for the con- venience of witnesses, alone, will take away discretion of trial court to order the change. — Sheckles v. Sheckles, 3 Nev. 404, 406. Fact cause set for trial on a certain day should not interfere with the application, unless there has been delay in making the ap- plication, or the parties have already prepared for trial, sub- poenaed witnesses, etc. — Id. i-t Cook V. Pendergast, 61 Cal. 72-78. 1 Answer must be in before counter-motion can be made to re- tain cause on ground of conveni- ence of witnesses. — See authorities cited in footnotes 5 and 6, this section. This point was made by counsel in Jenkins v. California Stage Co., 22 Cal. 537, but overlooked by the court ver\' improperly. See Cook V. Pendergast, 61 Cal. 72, 77, 78. 512 Ch. XVII.] DEMAND FOR CHANGE. § 407 retained.^ He can not permit the place of trial to be changed and then move to return the cause to the former county.^ But in those cases in which the defendant files a demand and motion for a change of the place of trial of the cause to the county of his residence upon filing a special demurrer, and before the issues are joined upon the merits, the plaintiff can not by counter-motion, de- mand the retention of the cause in the county in which action brought on the ground (1) of convenience of wit- nesses, and (2) on the ground that an impartial trial can not be had in the county to which it is sought to have the trial transferred.^ The reason for the rule is the fact that it is impossible to determine the question of the conven- ience of witnesses before the answer is in and the issues made up.^ § 407. Demand for change of place of trial.^ Under the provisions of the California Code of Civil Procedure, where a transitory action of the residentiary class is com- menced in a county other than that of the residence of the defendant, if he desires to have the trial of the cause removed to the proper county, at the time of filing his -■ Loehr v. Latham, 15 Cal. 418; Co., 48 Cal. 460; Clanton v. RufE- Jckins V. California Stage Co., ner, 78 Cal. 268, 269, 20 Pac. 676. 22 Cal. 537; Edwards v. Southern 4 McSherry v. Pennsylvania Con- Pac. R. Co., 48 Cal. 460. sol. Gold Min. Co., 97 Cal. 637, 641, Convenience of witnesses 32 Pac. 711. ground for denying motion for Motion to retain cause can not change to county of residence of be made until issue joined. — Heald defendant. — Jones v. Swank, 54 v. Hendy, 65 Cal. 321, 4 Pac. 27; Minn. 259, 264, 55 N. W. 1126. Pascoe v. Baker, 158 Cal. 233, 110 In South Dakota defendant has Pac. 816. an absolute right to have the place 5 Cook v. Pendergast, 61 Cal. 72, of trial changed to his county, and 77, 78, criticising Jenkins v. Cali- this right can not be defeated by fornia Stage Co., 22 Cal. 537, on the convenience of witnesses. — this point. Small V. Gilruth, 8 S. D. 287, 290, i For form of demand for change 66 N. W. 452. of place of trial, see Jury's Ad- 3 Pierson v. McCahill, 22 Cal. judicated Forms of Pleading and 127; Hanchett v. Finch, 47 Cal. Practice, vol. 2, p. 1814, form No. 192; Edwards v. Southern Pac. R. 1097. I Code PI. and Pr. — 33 5^3 §408 CODE PLEADING AND PRACTICE, [Pt. I, answer or demurrer he must also file a written demand for such a change f' and the filing of such written demand for a change of the place of trial is essential to the validity of an order by the court in which the action is commenced transferring the trial of the cause to the county of the residence of the defendant."' A notice of motion to change the place of trial is not such a demand.'* In other states lia\dng the reformed system of judicature similar pro- visions are found. Thus, in New York, to procure a change of the place of trial, in case the county named is not the proper county, a demand is first necessary, the service of which is an essential prerequisite to the mo- tion,^ And if the plaintiff fails to consent to the demand, application must be made to the court.^ § 408. Form and statement in demand^ — In Cali- fornia. Under the California Code of Civil Procedure,^ a demand for a change of the place of trial should desig- nate the county to which to be transferred, and should be made by the defendant, or one of the co-defendants for and on behalf of all the defendants,^ but a written demand for a change in the place of trial of a cause is not insuf- ficient because the attorneys of the defendant, describing themselves as such, say that they demand, instead of say- i! See: Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §396; Consolidated Supp. 1906-1913, p. 1427; Nicholl V. Nicholl, 66 Cal. 36, 37, 4 Pac. 882; Palmer v. Barclay, 92 Cal. 199, 201, 28 Pac. 226. 3 Byrne v. Byrne, 57 Cal. 348; Pennie v. Visher, 94 Cal. 323, 326, 29 Pac. 711; Warner v. Warner, 100 Cal. 11, 17, 34 Pac. 523; Elam V. Griffin, 19 Nev. 442, 14 Pac. 582. 4 Byrne v. Byrne, 57 Cal. 348. See Anderson v. Arpin Hardwood Lumber Co., 131 Wis. 41, 110 N. W. 792. 5N. Y. Code Civ. Proc, §986; Vermont Cent. R. Co. v. Northern R. Co., 1 N. Y. Code Rep. N. S. 401, 6 How. Pr. 106; Van Dyck v. McQuade, 18 Hun (N. Y.) 376. •iN. Y. Code Civ. Proc. §986; Marsh v. Lowry, 26 Barb. (N. Y.) 197, 16 How. Pr. 41; Houck v. Lasher, 17 How. Pr. (N. Y.) 520; Clark V. Campbell, 54 How. Pr. (N. Y.) 166. 1 As to form of demand, see Jury's Adjudicated Forms of Plead- ing and Practice, vol. 2, p. 1814, form No. 1097. 2 Kerr's Cyc. Cal. Code Civ. Proc, 2d ed., §296; Consolidated Supp. 1906-1913, p. 1427. ■i See, ante, § 404. 514 ch, XVII,] STATEMENT IN DEMAND, § 409 ing that the defendant demands, the change ;^ because the provisions of the statute relative to the change in the place of trial, being remedial, are to be liberally construed, and a substantial compliance therewith is all that is re- quired f and the written demand for a change in the place of trial may be signed by the attorney for the defendant simultaneously with his appearance in the cause.*^ § 409. In New York. In New York the prac- tice is somewhat different from the practice in California, owing to the difference in the statutory provisions. In that jurisdiction, in the demand, the name of the proper county to w^hich a removal is sought must be inserted.^ And service must be made on the opposite counsel before the time for answering expires, ^ but it may be made simultaneously with the service of the answer,^ yet not after, although defendant answered before his time had expired,^ Either party may move when an impartial trial could not be had, or when convenience of witnesses w^ould be promoted,^ A demand specifying an improper county is irregular.*' On a demand there must be an order or consent; mere service of demand is not sufficient." In a demand to change the place of trial to the proper county, any suggestion as to which is the proper county is sur- plusage.^ Under the New York Code the demand must 4 People ex rel. State Board of 3 Mairs v. Remsen, 3 N. Y. Code Harbor Commrs. v. Larue, 66 Cal. Rep. 138. 235, 5 Pac. 157; Buck v. Eureka, 4 Milligan v. Brophy, 2 N. Y. City of, 97 Cal. 135, 137, 31 Pac. code Rep. 118. °'* • 5 Hinchman v. Butler, 7 How. Pr. 5 Buck V. Eureka, City of, 97 Cal. .j^ y ) 462 135, 137, 31 Pac. 845. 6 People ex rel. State Board of Harbor Commrs. v. Larue, 66 Cal. 235 5 Pac 157. ^ Hasbrouck v. M'Adam, 3 N. Y. 1 Beardsley v. Dickerson, 4 How. Code Rep. 39, 4 How. Pr. 342. Pr. (N. Y.) 81. 8 Philbrick v. Boyd, 16 Abb. Pr, 2 Milligan v. Brophy, 2 N. Y. (N. Y,) 393. Code Rep. 118. 515 6 Beardsley v. Dickerson, 4 How. Pr. (N. Y.) 81. § 410 CODE PLEADING AND PRACTICE. [Pt. I, specify the county where the defendant requires the action to be tried. ^ § 410. Affidavits — 1. When ground nonresidence — Defendant's affidavits. We have already discussed tlie form and sufficiency of the defendant's affidavit of merits where applying for a change of the place of trial on the ground that the action was commenced in an improper county,^ and that an affidavit of merits is not required where the application is upon any of the other grounds- mentioned in the statute.^ A defendant seeking to secure a change in the place of trial of a cause on this ground, in addition to an affida\dt of merits, must file an affidavit set- ting forth fully and clearly the facts as to his place of residence,^ in order that the court may have before it some tangible evidence upon that subject when passing upon the merits of the motion for a change of the place of trial. An affidavit on such a motion on this ground, which unqualifiedly states that affiant is a resident of the county to which he demands that the trial of the cause be changed or transferred, states a probative fact to which affiant is qualified to testify.^ While the better practice is to have the affidavit of merits and the affidavit of resi- dence made by the defendant personally, it has been held that the affida\dt may be made by the attorney of the defendant applying for the change, where the attorney qualifies himself to make such affidavit, and shows a suf- ficient reason for its not being made by the party himself.** 9 N. Y. Code Civ. Proc, §986. Defendant resident of county 1 See, ante, §§ 401-404. nine months previous to com- •-• See, ante, § 405, footnote 12. mencement of action, is not incon- 3 See Kerr's Cyc. Cal. Code Civ. sjstent with his u n q u a 1 i fi e d Proc, 2d ed., §397; Consolidated ^t^tement that at the time of the Supp. 1906-1913, p. 1429. 4 For form of affidavit of resi- dence, see Jury's Adjudicated r- t Di^^^i..^ ^^A D^-./.4^:/.o —O'Brien v. O'Brien, 16 Cal. App. Forms of Pleading and Practice, ' '^^ vol. 2, p. 1815, form No. 1098. 109, 116 Pac. 692. r. O'Brien v. O'Brien, 16 Cal. App. « Nicholl v. NJcholl, 66 Cal. 36, 109, 116 Pac. 692. 4 Pac. 882, distinguishing Bailey 516 commencement of the action he was a resident of another county. ch. XVII.] AFFIDAVITS ON CHANGE — PLAJNTIFF's. §411 A common and convenient practice is to combiiio the jiffidavit of merits with the affidavit of the ground on which the motion is made, where the latter does not appear upon the face of the complaint, and has to be established by affidavit. It has been lield that where it appears from the affidavit of merits, that the defendant is entitled to file an answer which will raise issues for trial which he desires to have tried in the proper county, the affidavit is sufficient.^ § 411. Plaintiff's affidavits. The plaintiff's willful or careless ignorance of the residence of the de- fendant does not put it in the power of such plaintiff to sue the defendant in any county in the state which he may select, however remote from the place of residence of the latter; for if this were the rule of practice, the effect of such rule would be practically to repeal the provision of the statute requiring suit to be brought in the county of the residence of the defendant, and would put it in the power of an unscrupulous plaintiff, by designedly keeping ignorant of the facts, or feigning to be ignorant of them, to sue where he pleased, and thus fraud would be encour- aged and oppression practiced.^ Hence, when a defen- dant, sued out of the county of his residence, applies for a change of the place of trial to the proper county, if the plaintiff resists the application, his affidavits must show that he used all proper diligence to ascertain the resi- dence of the defendant before suit was commenced, and V. Taaffe, 29 Cal. 423; Johnson v. deemed sufficient." — Johnson v. Lynch, 15 How. Pr. (N. Y.) 199. Lynch, 15 How. Pr. (N. Y.) 199. "Affidavit of the attorney of a ' ^^^^^ ^^ ''^^- ^"^^ ^- Superior Court, 9 Wash. 668, 88 Pac. 206. For form of combined affidavit of merits and residence, see Jury's as to residence, on personal know!- Adjudicated F o r m s of Pleading edge,— "and shows an adequate and Practice, vol. 2, p. 1815, form excuse for its not being made by No. 1100. the party; absence beyond seas or i Loehr v. Latham, 15 Cal. 418, out of the state will usually be 420, . 517 party will be sufficient where it swears to merits," — or as to facts §412 CODE PLEADING AND PRACTICE. [Pt. I, failed ;- a mere showing of ignorance, without a showing of diligence, will not entitle the plaintiff to a trial in the county where the suit is brought.^ On conflict as to residence of the defendant, where plaintiff contends that the defendant is a resident of the county where sued, the affidavits furnished by the plain- tiff to support his contention must set forth probative facts and not merely the opinions or conclusions of affi- ants, or mere conclusions of law.* Resistance on ground convenience of luitnesses requires cause to be tried in the county in which the action was commenced can not be indulged ; and if the court refuses to grant the change when asked for on such ground, where the motion is made at the time of defendant's demurring or appearance, it is ground for reversal on appeal.^ H12. Association or corporation — In Cali- fornia. The California constitution^ provides that an association of persons or a corporation may be sued (1) in the county where the contract was made or was to be performed, or (2) in the county where the obligation or liability arose or the breach occurred, or (3) in the county in which the principal place of business of such associa- tion or corporation is situated, subject to the power of the court to change the place of trial, as in other cases. Hence, where a suit against an association or a corpora- tion is commenced in a county other than the county in which its office and principal place of business is situ- ated, — e. g., against a railroad corporation for a breach 2 Id.; Thurber v. Thurber, 113 Cal. 607, 45 Pac. 852; Mohler v. Drummer Boy Gold Min. Co., 7 Cal. App. 190, 193, 93 Pac. 1064. 3 Thurber v. Thurber, 113 Cal. 607, 45 Pac. 852. 4 Bernou v. Bernou, 15 Cal. App. 341, 345, 114 Pac. 1000. 5 Cook V. Pendergast, 61 Cal. 72; Bailey v. Sloan, 5 Cal. Unrep. 387, 4 Pac. 349; Heald v. Hendy, 65 Cal. 321, 4 Pac. 27; Yore v. Murphy, 10 Mont. 311, 25 Pac. 1041; Williams V. Keller, 6 Nev. 141. 1 Cal. Const. 1879, art. XII, § 16; Henning's Gen. Laws, 2d ed., p. 81. As to domicile of corporations, see, ante, §§ 372-380. il8 eh. XVII.] CHANGE — BIAS AND PREJUDICE. §§413,414 of its duty as a common carrier, — such defendant associa- tion or corporation seeking to have the place of trial of the cause changed to the county in which its principal office and place of business is situated, must show by its affidavits (1) that the contract sued on was not made or to be performed in the county in which the action was commenced; or (2) that the obligation or liability sued on, or that the damage, default, injury or negligence com- plained of, did not arise or occur in the county in which the action was commenced ; and if they do this they will be sufficient,- otherwise they will be insufficient.^ V <§i 413. Plaintiff's affidavits. In an'_ application by an association or a corporation for a change of trial to the proper county, as discussed in the preceding section, the plaintiff's counter-affidavits must be equally full and precise in stating facts which bring the plaintiff within the provisions of the constitution, to justify the bringing of the action in the county where pending and warrant its retention. Thus, on the hearing of such a motion, it will not be sufficient for the plaintiff merely to read the verified complaint, sho\ving that he is a resident of the county in which the action was com- menced, and alleging that the breach of the contract sued on occurred there, but not setting forth where the con- tract was made or was to have been performed.^ <§ 414. 2. Bias, partiality and prejudice — Moving AFFIDAVITS. Either party to an action may have the cause removed to another county for trial for this cause or ground, and the general rules herein laid down as to the 2 See Byrum v. Stockton Com- As to cause of action for breach bined Harvester & A. Works, 91 of contract, — e. g., failure of war- Cal. 657, 27 Pac. 1093. ranty,— arising at place in which 3 Chase v. Southern Pac. Coast contract is made, see: Bancroft v. R. Co., 83 Cal. 468, 23 Pac. 532. San Francisco Tool Co., 5 Cal. Un- 1 Byrum v. Stockton Combined rep. 586, 47 Pac. 684; Byrum v. Harvester & A. Works, 91 Cal. 657, Stockton Combined Harvester & •J.1 Pac. 1093. A. Works. 91 Cal. 657, 27 Pac. 1093. 519 414 CODE PLEADING AND PRACTICE. [Ft. I, sufficiency of the moving affidavits and the counter affi- davits apply with equal force no matter by which party the application is made. Where the defendant seeks to have the trial of a cause removed t<3 another county because of bias or prejudice against him in the county where the action is pending, or because of partiality in favor of the plaintiff in that county, preventing a fair and impartial trial of the cause, it is necessary that the affidavits supporting his applica- tion for a change in the place of trial shall state all the facts and circumstances which induce the belief that a fair and impartial trial can not be had in the county in which the action is pending,^ in order that the court may be able to judge whether the belief is well-founded ; affi- davits of individuals to their belief that a fair and impar- tial trial can not be had are insufficient.- Such an appli- cation should be supported by the affidavits of persons 1 Gibbert v. Washington Water Power Co., 19 Idaho 637, 115 Pac. 924; McCormick Harvesting Ma- chine Co. V. Hayes, 7 Kan. App. 141, 53 Pac. 70; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; Lady Franklin Min. Co. v. Delaney, 4 N. M. (Gilders.) 51, 12 Pac. 628; Richardson v. Augustine, 5 Okla. 667, 49 Pac. 930. As to partiality of judge of county where action pending, see, post, § 429. 2 See: Sloan v. Smith, 3 Cal. 410; McCormick Harvesting Ma- chine Co. V. Hayes, 7 Kan. App. 141, 53 Pac. 70; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; State v. Millain, 3 Nev. 409; State v. Dwyer, 29 Nev. 427, 91 Pac. 305; People v. Vermilye, 7 Cow. (N.Y.) 108; People v.Bodine, 7 Hill (N. Y.) 147; Scott v. Gibbs, 2 Johns. Cas. 116; Bowman v. Ely, 2 Wend. (N. Y.) 250. "Affiant has reason to believe" that a fair trial can not be had, is insufficient. — Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847. Affidavit of defendant's agent that it is his belief that an im- partial trial can not be had, in- sufficient. — McCormick Harvesting Machine Co. v. Hayes, 7 Kan. App. 141, 53 Pac. 70. In action of replevin, where the plaintiffs own a mine from which the ore in controversy came, and the application is made on the ground that an organized combina- tion was continually stealing ore from the mine, the affidavits ought to be shown of what persons this combination was composed, and in what manner they were trying to influence the action of the jury. — Lady Franklin Min. Co., 4 N. M. (Gilders.) 51, 12 Pac. 628. 520 ch. XVII.] BIAS AND PREJUDICE — AMOUNT. § 415 who have been over the county generally, or who have been through large communities thereof, and have heard the citizens of the county generally express themselves in regard to the subject-matter of the action ; or the affidavits should be made by persons residing in different portions of the county who are acquainted with the sentiments and feelings prevailing in their respective localities in the county.^ Actual experiment, it has been said, should be first made by attempting to impanel a jury in the cause,^ or by at least one trial of the cause.^ But this view has not been sustained, and other circumstances than the actual trial, or attempted trial, of the cause, may be sufficient evidence that a fair and impartial trial can not be had in the county in which the action is pending.^ § 415. Amount of bias, partiality or preju- dice NECESSARY. lu general, the granting or refusing a motion for the change of the place of trial of a cause on the ground of bias, partiality or prejudice is discretionary with the trial court, subject to revision in case of abuse of discretion, only.^ The existence of local bias and preju- 3 Gibbert v. Washington Water 5 Messenger v. Holmes, 12 Wend. Power Co., 19 Idaho 637, 115 Pac. (N. Y.) 203; People v. Wright, 3 924. See State V. Rooke, 10 Idaho N. Y. Code Rep. 75, 5 How. Pr. 388, 79 Pac. 82. (N. Y.) 23. As to amount of bias, partiality e People v. Webb, 1 Hill (N. Y.) or prejudice necessary, see, post, 179; People v. Long Island R. Co., § 415. 16 How. Pr. (N. Y.) 106, 4 Park. 4 State V. Gray, 19 Nev. 215, 8 Cr. Rep. 602; Budge v. Northani, Pac. 457, holding that it is proper 20 How. Pr. (N. Y.) 248. for a trial judge to overrule a County plaintiff in action is not motion for the transfer of the a sufficient cause for transfer of place of trial of a cause, on the place of trial. — See note, 74 Am. ground that there exists in the Dec. 244. community where pending such a i See: People v. Lee, 5 Cal. 353; prejudice that the defendant can People v. Fisher, 6 Cal. 155; Wat- not obtain an impartial trial, until son v. Whitney, 23 Cal. 375, 378; it can be shown by an examination Avila v. Meherin, 68 Cal. 478, 479, of a sufficient number of jurors 9 Pac. 428; Power v. People, 17 that a fair jury can not be obtained. Colo. 178, 28 Pac. 1121; Hyde v. 521 §415 CODE PLEADING AND PRACTICE. [Pt. I, dice is of no consequence in a case where the cause is an equitable one or a cause triable by the court. In case the trial judge should become infected with the bias or preju- dice of the community, an application for a change of the place of trial should be granted, or a judge from another district called in to try the cause.^ But in those cases in which the cause is one which must be tried to a jurj^, the general bias and prejudice, or sentiment of the commun- ity respecting the merits of the cause may be such an obstacle to a fair and impartial trial and the administra- tion of justice between the parties that a change of the place of trial should be ordered.^ In a case of this kind, where one county is attached to another for judicial pur- poses an application for a change of trial from the county to which such county is attached for judicial purposes wdll be insufficient unless the affidavits show that the disquali- fying bias and prejudice attaches to the latter county also.'' Application not granted on the ground of bias and prejudice in the community against a corporation or a turnpike road company, where a corporation or a turn- pike road company is a party to the action.^ Neither is it ground for a change in the place of trial that the people of the county in wliich the action is pending are interested in the question involved f or because a high party spirit prevails in such county.'^ In an action against a sheriff, the influence of his office in the county in which the action is brought will not, of itself, be sufficient ground for the transfer of the trial to another county.^ But in a criminal Harkness, 1 Idaho 601. 603; State V. Billings, 77 Iowa 417, 42 N. W. 456; Davis' Estate, In re, 11 Mont. 1, 27 Pac. 342; State v. Pomeroy, 30 Ore. 20, 46 Pac. 798. 2 People ex rel. Walp.ert v. Rogers, 12 Colo. 278, 20 Pac. 702. 3 People V. Baker, 3 Abb. Proc. (N. Y.) 42, 3 Park. Cr. Rep. 181. 4 Black V. Bent, 20 Colo. 342, 38 Pac. 387. 5 New Windsor Turnpike Co. v. Wilson, 3 Cai. (N. Y.) 127. 6 Conley v. Chedic, 7 Nev. 336. 7 Zobieskie v. Bander, 1 Cai. (N. Y.) 487. 8 Baker v. Sleight, 2 Cai. (N. Y.) 46. 522 Ch. XVII.] BIAS, ETC. COUNTER-AFFJDAVITS. §416 cause, where it is made to appear by the affidavits support- ing the application for a change of place of trial that one hundred citizens of the county united in employing coun- sel to prosecute the defendant, just ground for granting the application is shown,'-* though this absolute doctrine has been modified.^^ In Wyomimg, under a statute providing that the judge shall grant a change of venue whenever either party to a civil action shall file an affidavit that the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant or to his cause of defense, if an affidavit is filed setting up the existence of such prejudicial fact in the words of the statute the court has no discretion to refuse a change of venue.^^ § 416. Counter-affidavits. The question of changing the place of trial because of bias, partiality and prejudice in the county in which the action is pending to such an extent that a fair and impartial trial can not be had in that county, is an issuable fact, and counter- affidavits are admissible to enable the court to judge of the necessity of such a change;^ and the trial court may, in its discretion, grant time in which to prepare and file People V. Lee, 5 Cal. 353; criti- ing long time and has been gen- cised as "decided without an erally talked about and discussed examination of the law as it is throughout the county, and that a now settled, and we should not number of rich and influential be justified in applying it as Persons in the county have inter- authority in any case falling short ^^^^^ themselves in procuring a of it in any degree."-People v. conviction, does not sufficiently G\ aham, 21 Cal. 265. ^^°^ ^^^^ ^ ^^'^ and impartial trial 10 People V. Graham, 21 Cal. 261, 265; Boyle v. People, 4 Colo. 176, 181, 34 Am. Rep. 76; State v. Mil- lain, 3 Nev. 409, 434, 462. can not be had in the county, was held in State v. Lowry, 4 Nev. 166. As to change of place of trial in a criminal case, see Fremont Older V. Superior Court, 157 Cal. 11 Perkins v. McDowell, 3 Wyo. 770, 109 P a c. 4 7 8, and Kerr's H)3, 19 Pac. 440. Whart Crim. Proc, vol. III. § 1537. Mere fact criminal charge pend- 1 Hyde v. Harkness, 1 Idaho 601. 523 §417 CODE PLEADING AND PRACTICE. [Pt. I, such counter-affida\'its.^ Where the counter-affidavits do not deny the existence of bias and prejudice, but do deny that the party can not have a fair and impartial trial, stating the reasons upon which such denial is based, they "will be sufficient.^ ^17. 3, For convenience of witnesses — Moving AFFIDAVITS. In an application for a change in the place of trial of a cause on the gi'ound of the convenience of wit- nesses, the affidavit should be made by the moving party himself, but it may be made by his attorney in the action, where special reasons are shown therefor.^ The support- ing affidavits on such a motion should be addressed to the place of residence of the witnesses for whose conven- ience the change in the place of trial is sought, and not go merely to their physical comforts;- must show that the witnesses, and each of them,^ are necessary* and material witnesses to make out the cause of the moving party,^ McCahill, 22 Cal 2 Pierson v 127. 3 Hyde v. Harkness, 1 Idaho 601, 604. 1 See, ante, § 410, footnote 6; also Scott V. Gibbs, 2 Johns. Cas. (N. Y.) 116. 2 Affidavit that witness troubled with bronchitis, made November 9th, and that it was dangerous for him to be in the county in which the action was brought at that season of the year, is immaterial on an issue of the change of the place of trial for the convenience of witnesses, — though it might be material in hearing of a motion for a continuance, or on an ap- plication for fixing the date of trial, — because the court will not take judicial notice that the climate of the county in which the action is brought is at all times dangerous to one alTected with bronchitis. — Miller & Lux v. Kern County Land Co., 140 Cal. 132, 73 Pac. 836, affirming Miller v. Kern County Land Co., 7 Cal. Unrep. 9, 70 Pac. 183. 3 "Every one of them" has been held to be essential. See cases cited, post, footnote 6, this sec- tion. ■i Necessary as well as material must be shown by the moving af- fidavits. — Satterlee v. Groot, 6 Cow. (X. Y.) 33; Young v. Scott, 3 Hill (N. Y.) 32. 35. 5 Cook V. Pendergast, 61 Cal. 72, 77; Grant v. Bannister, 14.5 Cal. 219, 78 Pac. 653; Ennis-Brown Co. v. Long, 7 Cal. App. 313, 316, 94 Pac. 250. "All the witnesses who are ma- terial witnesses, except the plain- tiff, reside in" the county to which it is sought to remove the trial of the cause, held to be insufficient as to materiality in Grant v. Ban- nister, 145 Cal. 219, 78 Pac. 653. i2-l Ch. XVII.] CONVENIENCE OF WITNESSES. § -117 wherein they are essential and that without their testi- mony the party can not safely proceed to trial/' and must state what is expected to be shown by them,'^ and also the particular facts each of such witnesses is expected to tes- tify to,^ especially where the application is contested.^ The supporting affidavits should also state the name and the residence of each witness ;^° a mere statement that they reside in the county has been said to be insufficient," as the place of trial will be determined by the county in which the -witnesses reside rather than the distance they must travel.^- In California, it is not necessary for the applicant for a change to state in his supporting affidavit that he expects to be able to procure the attendance of such witnesses at the trial. ^^ Application not made by all of the persons named, served and appearing in the action, with the applicant for a change, the supporting affidavit of the moving party must show the reason why all do not join in such appli- cation.^^ Little reliance placed by court Grant v. Bannister, 145 Cal. 219, upon the mere allegation that 221-2, 78 Pac. 653. designated witnesses are material, 9 id.- Price v Fort Edwards unless it be shown by the sup- Water Works, 16 How. Pr. (N. Y.) porting affidavits in what respect ^^^ they are material. — People v. Hayes, 7 How. Pr. (N. Y.) 248. fi Satterlee v. G r o o t, 6 Cow. (N. Y.) 35; Anonymous, 3 Wend. (N. Y.) 424; Constantine v. Dun- ham, 9 Wend. (N. Y.) 431; Onon- daga County Bank v. Shepherd, 19 Wend. (N. Y.) 10; People v. "Anonymous, 6 Cow. (N. Y.) Hayes, 7 How. Pr. (N. Y.) 248. ^^^' ^^^^^^ ^- G"""^' ^ «»" (^'^- Y) TEnnis-Brown Co. v. Long, 7 445; Westbrook v. Merritt. 1 How. Cal. App. 313, 94 Pac. 250; Hills P''- ^^- ^-^ '^^^■ V. La Due, 5 Colo. App. 248, 38 ^- Hull v. Hull, 1 Hill (N. Y.) Pac. 430; Denver & Rio Grande 671; People v. Wright, 3 N. Y. R. Co. V. Chill, 8 Colo. App. 158, Code Rep. 75, 5 How. Pr. 23. 45 Pac. 285. i3 Reavis v. Cowell, 56 Cal. 588. s Price v. Fort Edwards Water 14 Welling v. Sweet, 1 How. Pr. Works, 16 How. Pr. (N. Y.) 51; (N. Y.) 156. 525 10 See: Grant v. Bannister, 145 Cal. 219, 221-2, 78 Pac. 653; Crooks- ton V. Centennial Eureka Min. Co., 13 Utah 117, 44 Pac. 714; Denver & Rio Grande R. Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285. § 418 CODE PLEADING AND PRACTICE. [Pt. I, Wherein witnesses are material in the trial of a cause, we liave already seen,^^ must be made to appear by the supporting affidavits, the courts placing very little reli- ance upon mere allegations of materiality.^^ Thus, where a change in the place of trial of an action for the breach of a contract was asked for the convenience of witnesses on the ground that the written memorandum of the con- tract which was the subject-matter of the action was in- definite and uncertain as to the terms thereof and as to the amount of the consideration, and was subject to an oral agreement, this was held merely to state the conclu- sion of the affiant, and to be insufficient to show that the contract would admit of oral proof by the witnesses for whose convenience the change of place of trial was asked.^'^ § 418. Counter- AFFIDAVITS. In an application for the change of the place of trial for the convenience of witnesses, the counter-affidavits are governed by the same rules as in an application for a change on other grounds, the application being issuable.^ Thus, a statement in a counter-affidavit that named ^vitnesses are material merely states the conclusion of the affiant, and is insuf- ficient;- so also is an allegation, in an action to recover See, also, discussion and author- i See, ante, §§411, 413. See: ities, ante, § 400. Pierson v. McCahill, 22 Cal. 127, 15 See footnotes 3-9, this sec- 131; Edwards v. Southern P a c. tion, and text going therewith. q^^ 43 c^i. 46I; Hyde v. Hark- 16 People V. Hayes, 7 How. Pr. ^^^^^ ^ j^^^ g02. (N Y ) 248 „ . ■ _, . „ In Oklahoma the showing for a 17 Ennis-Brown Co. v. Long, i Cal. App. 313, 94 Pac. 250. ^^^^^^ °f P^^^^ °f ^"^^ *^ ^^^^ ^" Written memorandum of con- ex parte showing, so that other tract should have been set out, evidence can be considered by the so that the court could judge court in contradiction of the facts whether the established rules of and circumstances detailed in the law ^sould admit of parol proof supporting affidavits.— Richardson to show that it was the subject v^ Augustine, 5 Okla. 667, 49 Pac. of such an agreement as claimed. 930. —Ennis-Brown Co. v. Long, 7 Cal. 2 Carr v. Stern, 17 Cal. App. 397, App. 313, 94 Pac. 250. 120 Pac. 35. 526 Ch. XVII.] CONVENIENCE OF WITNESSES. §§419,420 damages for a personal injury, that affiant expects to dis- prove the statements in supporting affidavits of the mov- ing party alleging injury through negligence and to be able to prove that the injury occurred through the negli- gence of the injured party.^ The counter-affidavits must contain the same specific facts and details required in the supporting affidavits;^ and in Utali it seems it must be further shown that the plaintiff opposing a change has a meritorious cause of action, and there should be incorpo- rated in his counter-affidavit all the elements of an affi- davit of merits.^ § 419. Application can be made when. In California,^ Nevada,^ New York,^ and perhaps elsewhere, an application for a change in the place of trial on the ground of the convenience of "svitnesses can not be made until the answer is in and the issues joined. Conse- quently a plaintiff can not, before issue joined, use this ground to resist a motion to change the venue, made liV the defendant, on the ground of nonresidence in the county in which the action is brought.* <^ 420. Discretion of court. The granting or refusing of a motion to change the venue on the ground of convenience of ^vitnesses is discretionary with the trial court,^ and an exercise of this discretion is subject 3 Id. (N. Y.) 481; Merrill v. Grinnell, 4 Crookston v. Centennial Eu- 10 How. Pr. (N. Y.) 31, 12 Leg. reka Min. Co., 13 Utah 117, 49 Pac, Obs. 236; Toll v. Cromwell, 12 714. How. Pr. (N. Y.) 79; Hubbard v. 5 Id. National Protection Ins. Co., 11 1 Cook V. Pendergast, 61 C a 1. How. Pr. (N. Y.) 149. 72; Thomas v. Placerville Gold 4 See, ante, §406, footnote 4; Quartz Min. Co., 65 Cal. 600, 4 also, Wallace v. Owsley, 11 Mont. Pac. 641; Howell v. Stetefeldt 219, 27 Pac. 790. Furnace Co., 69 Cal. 153, 10 Pac. i Reavis v. Cowell, 56 Cal. 588, 390. 592; Avila v. Meherin, 64 Cal. 478, 2Sheckles v. Sheckles, 3 Nev. 9 Pac. 428; Clanton v. Ruffner, 78 404; Williams v. Keller, 6 Nev. Cal. 268, 20 Pac. 676; Stockton 141. Combined Harvester & A. Works 3 Mason v. Brown, 6 How. Pr. v. Houser, 103 Cal. 377, 37 Pac. 527 § 421 CODE PLEADING AND PRACTICE. [Pt. I, to review only in cases of abuse;- tlie preponderance of evidence or witnesses upon one side or the other does not foreclose the court's discretion and compel a transfer of the trial. ^ In an action to foreclose a mortgage upon lands partly in two counties, where the affidavits on the part of the defendants established clearly that the convenience of witnesses would be promoted by a change of venue to the other county in which the suit might properly have been brought, and the record dis- closes no reason or sufficient showing to the contrary, an order denying the motion of the defendants for such change can not be justified upon the ground that the granting of such orders is in the discretion of the court, and it will be reversed upon appeal.^ § 421. 4. Disqualification op judge — Supporting AFFIDAVITS. On a motion for a change in the place of trial of a cause on account of the bias, partiality, or other legal disqualification of the presiding judge preventing the party from having a fair and impartial trial in the county in which the action is pending, the supporting affidavits 179; Bird v. Utica Gold Min. Co., rel. Port Blankley Mill Co. v. 2 Cal. App. 673, 68 Pac. 509. Superior Court, 9 Wash. 673, 38 As to discretion of court, see, pac. 155. also, ante, § 415. 3 Reavis v. Cowell, 56 Cal. 588, 2 Pierson v. McCahill, 22 Cal 592; Cook v. Pendergast, 61 Cal. 72, 77, 78; Armstrong v. Superior Court, 63 Cal. 410, 411; Heald v. Hendy, 65 Cal. 321, 322, 4 Pac. 27; Clanton v. Ruffner, 78 Cal. 268, 20 Pac. 676; Pascoe v. Baker, 158 Cal. 234, 110 Pac. 816; Wong Fung Hing v. San Francisco Re- lief & Red Cross Funds, 15 Cal. 127; Reavis v. Cowell, 56 Cal. 588, 592; Hanchett v. Finch, 47 Cal. 192; Avila v. Meherin, 68 Cal. 478, 9 Pac. 428; Clanton v. Ruffner, 78 Cal. 268, 269, 20 Pac. 676; Stock- ton Combined Harvester & A. Works V. Houser, 103 Cal. 377, 37 Pac. 179; Grant v. Bannister, 145 Cal. 219, 221, 78 Pac. 653; Park v. „'_,,. r-,0 i-ic App. 537, 539, 115 Pac. 331. Greenwell, 15 Cal. App. 512, 115 ^^ Pac. 254; Ennis-Brown Co. v. Motion to remand after change, Long, 7 Cal. App. 316, 94 Pac. 251; can not be made on ground of De Win v. Osbom, 12 Colo. 407, 21 convenience of witnesses until af- Pac. 189; Michael v. Mills, 22 Colo. ter issues joined.— 158 Cal. 234, 439, 45 Pac. 429; Denver & Rio HO Pac. 816. Grande R. Co. v. Cahill, 8 Colo. 4 Thompson v. Brandt, 98 Cal, App. 164, 45 Pac. 285; State ex 155, 156, 32 Pac. 890. 528 eh. XVII.] DISQUALIFICATIOX OF JUDGE. § 421 must set forth the grounds upon which the charge of bias, partiality, or prejudice or other disqualifying ground is based ; it is not sufficient simply to allege that affiant has reason to believe and does believe that he can not have a fair and impartial trial/ or to boldly declare that the judge is prejudiced,- except under constitutional provis- ions^ making change of place of trial mandatory upon the moving party filing an affidavit duly verified, charging the presiding judge of the trial court mth bias and preju- dice.* But it is not necessary or proper to set out facts in the affidavits that would in themselves, or by the man- ner in which they are stated, be calculated to scandalize the judge or to bring him into public contempt/' It has been held in California that an affidavit made on applica- tion for a change in the place of trial, on the ground of bias and prejudice on the part of the presiding judge, which states "that the judge, as the affiant is informed, and verily believes, has frequently stated that he believes the affiant guilty of the crime charged in the indictment, and has frequently expressed himself against and ad- versely to the affiant in connection with said charge," does not merit consideration, as it contains a mere charge upon information and belief, and does not show how the information was obtained, or upon what the belief was based." But this was before the amendments to the Code of Civil Procedure in this regard ; it is thought that this affidavit would sufficiently state the ground of opinion that moving party could not have a fair and impartial trial, under present provisions of the Code.'^ 1 Bell V. Bell, 18 Idaho 636, 111 Idaho 556, 10 Ann. Cas. 260, 86 Pac. 1074; Emporia, City of, v. Pac. 531; State v. Brown, 24 Okla. Volmer, 12 Kan. 627. 433, 103 Pac. 762; Ellis, Ex parte, . Griggs V. Carson, 71 Kan. 884. ^ ^^^^- ^'- ^^^' ^^ »-. R. A. (N. S.) 653, 105 Pac. 184. 81 Pac. 471. \^ ^ r> Hughes v. People, 5 Colo. 436. * As Oklahoma constitution, « p^^pj^ ^ Williams, 24 Cal. 31. Bunn's Okla. Const, § 15. 7 g^g^ p^gj g 422. 4 Rea V. State, 3 Okla. Cr. 276, As to sufficiency of affidavit for 105 Pac. 384. See Day v. Day, 12 ciiange of place of trial on account I Code PI. and Pr.— 34 529 §422 CODE PLEADING AND PRACTICE. [Pt. I, § 422. In California. In California the only matters disqualifying a judge are those provided in the Code of Civil Procedure/ which include bias and preju- dice on his part,- but without a special statutory or con- stitutional provision to that effect bias and prejudice on the part of the presiding judge does not disqualify him to try the cause.^ However, bias or prejudice of the trial judge is not a ground for the transfer of the trial to an- other county under the California code; the judge thus disqualified is required forthwith to secure the services of some other judge, of the same or some other county, to pre- side at the trial of the action or proceeding.^ On motion for change of place of trial on any of the grounds of dis- qualification of judge, the supporting affidavits must fully set forth the facts as pointed out in the following sections. A judge who is satisfied that he is disqualified to sit and act in a cause, ought not to wait until the parties object to him because of such disqualification, but should refuse of prejudice of presiding judge, Erroneous ruling made by the see McCann v. People, 88 111. 103. judge on a previous trial is not Irrelevant and immaterial affi- evidence of bias and prejudice. — davit setting forth bias and preju- People v. Williams, 24 Cal. 31, 35. dice in trial judge as a contempt of court. — Jones, In Matter of, 103 Cal 397 37 Pac 385 1 Kerr's Cyc' Cal. Code Civ. 590, 8 Pac. 857; Bulmer Consol. Proc, 2d ed., § 170; Biennial Supp. Min. Co. v. Standard Consol. Min. 1915, p. 3040; Jones, In Matter of, Co., 83 Cal. 613, 23 Pac. 613; Bryan 103 Cal. 397, 37 Pac. 385; Patter- v. State, 41 Fla. 643, 659, 26 So. son V. Conlan, 123 Cal. 453, 455, i022; Davis' Estate, In re, 11 56 Pac. 105. Mont. 1, 19, 27 Pac. 342; Allen v. 2 Kerr's Cyc. Cal. Code Civ. Rgilly, 15 Nev. 452, 455; Gaines v. Proc. 2d ed., §170, par. 4; Bien- g^^^^^ 33 ^^^ ^^ 202, 215, 42 nial Supp. 1915, p. 3040; Gay v. ^ ^^ ^^ state ex rel. Barnard v. Torrence, 145 Cal. 144, 152, 78 Pac. ^^^^^ ^^ Education, 19 Wash. 8. "140 „. .. • ^- t K^ oc 14, 67 Am. St. Rep. 706, 40 L. R. A. Bias and prejudice must be es- ^ i- > tablished by facts and circum- 317, d2 Pac. 317. stances clearly shown by affidavits. 4 Kerr's Cyc. Cal. Code Civ. —Emporia, City of, v. Volmer, 12 Proc, 2d ed., §170, par. 4; Bien- Kan. 627. nial Supp. 1915, p. 3040. 530 3 People V. Williams, 24 Cal. 31; McDowell V. Levy, 2 Cal. Unrep. eh. XVII.] JUDGE PARTY OR INTERESTED. §423 to hear the case, and cause an entry to be made in the docket to that effect, setting forth the reason of his dis- qualification.^ §423. (1) Party to or interested in ACTION. A judge is prohibited from acting in a cause, — i. e., hearing and determining the same and entering up a judgment, — in which he is a party or is interested, either directly or indirectly.^ But it has been held that where 5 Moses V. Julian, 45 N. H. 52, 84 Am. Dec. 114. 1 Tracy v. Colby, 55 Cal. 67, 72; North Bloomfleld Gravel Min. Co. V. Keyser, 58 Cal. 315, 322; Heil- bom V. Campbell, 3 Cal. Unrep. 204, 23 Pac. 122; Howell v. Budd, 91 Cal. 342, 353, 27 Pac. 747; Oak- land, City of, V. Oakland Water- Front Co., 118 Cal. 249, 251-2, 50 Pac. 268; Foley v. Foley, 120 Cal. 35, 40, 65 Am. St. Rep. 147, 52 Pac. 123; Adams v. Minor, 121 Cal. 372, 53 Pac. 813; Limerick v. Murlatt, 43 Kan. 318, 23 Pac. 567; Penin- sular R. Co, V. Howard, 20 Mich. 25; State ex rel. Bullion & Ex- change Bank v. Mack, 26 Nev. 430, 69 Pac. 862; Washington Ins. Co. V. Price, 1 Hopkin. Ch. (N. Y.) 1; First Nat. Bank v. McGuire, 12 S. D. 226, 76 Am. St. Rep. 598, 47 L. R. A. 413, 80 N. W. 1074; First Nat. Bank v. Keenan, 12 S. D. 241, 80 N. W. 1735; Barnett v. Ash- more, 5 Wash. 163, 31 Pac. 466; Hovey v. Elliott, 167 U. S. 409, 42 L. Ed. 215, 17 Sup. Ct. Rep. 841. Action to revive judgment where judge seeking to enforce lien for his fees on the judgment sought to be revived, he is disqualified to determine the matter of revivor. — Toole V. Berkley, 60 Kan. 446, 56 Pac. 755. Action to vacate judgment ren- dered, judge presiding at trial at which judgment rendered is not disqualified by interest in the pro- ceedings to vacate the judgment. —Chicago, B. & Q. R. Co. v. Kel- logg, 54 Neb. 138, 74 N. W. 403. Foreclosure of liens on property which judge had obtained and transferred, he is disqualified to try the action. — Findley v. Smith, 42 W. Va. 305, 26 S. E. 370. Interest in common with all the citizen voters of the county in the change of the county seat, does not disqualify him from sitting and acting at hearing of injunction suit to prevent removal. — Sauls v. Freeman, 24 Fla. 209, 12 Am. St. Rep. 190, 4 So. 525. Judge made party to partition proceedings disqualified by inter- est to try the cause. — Younger v. Superior Court, 136 Cal. 682, 69 Pac. 485. — Can not arbitrarily determine that he has no interest, and direct that application for change of place of trial be stricken from files. — Id. See McClatchy v. Su- perior Court, 119 Cal. 413, 419, 39 L. R. A. 691, 51 Pac. 696. — Question of interest must be tried upon affidavits alone, with- out reference to judge's own knowledge. — See Keating v. Keat- ing, 169 Cal. 754, 147 Pac. 974. 631 §423 CODE PLEADING AND PRACTICE. [Ft. I, thus interested he may make an order transferring the Membership of bar association of state does not disqualify him to sit and act in a proceeding brought for the disbarment of an attorney, although the association may be liable for costs. — Alabama Bar As- sociation, Ex parte, 92 Ala. 113, 12 L. R. A. 134, 8 So. 768. Membership of vestry of church, whose vestrymen and wardens have been incorporated and in- vested with the property of the church, including donations, gifts and grants, to hold the same for the benefit of the church, with power to sue and use all necessary means to recover and defend any and all property belonging to the church, disqualifies a judge to sit and act in the probate of a will in which the vestrymen and wardens are beneficiaries. — State ex rel. Colcord V. Young, 31 Fla. 594, 34 Am. St. Rep. 41, 19 L. R. A. 636, 12 So. 673. Ownership of stock in bank in- tervening in proceedings pending before him in which the validity of bonds held by the bank is in question, disqualifies the judge to preside at the proceedings. — Adams v. Minor, 121 Cal. 372, 53 Pac. 813. Ownership of stock in corpora- tion presenting claims against es- tate of decedent, disqualified from passing on such claim. — State ex rel. Bullion & Exchange Bank v. Mack, 26 Nev. 430, 69 Pac. 862. But former ownership of stock which has been disposed of, does not disqualify. — Scadden Flat Gold Min. Co. V. Scadden, 121 Cal. 33, 53 Pac. 440. Partnership in poi;tical party and activity in supporting contes- tant, does not disqualify a judge to sit and act in an election con- test. — Fulton V. Longshore, 156 Ala. 614, 19 L. R. A. (X. S.) 002, 46 So. 989. Otherwise where judge's own election at the same general elec- tion is contested. — Medlin v. Tay- lor, 101 Ala. 242, 13 So. 310. Probate judge interested in es- tate through power of attorney from persons claiming as heirs of the estate to receive their money or property for them, or other- wise, is disqualified thereby to act in any proceeding touching the ad- ministration of the estate. — White, Estate of, 37 Cal. 190, 192; Oakley V. Aspinwall, 3 N. Y. 547. — Creditor of estate does not dis- qualify. — Regents of University of California v. Turner, 159 Cal. 451, 114 Pac. 842. Signature to petition by jud.5e for removal of county seat does not disqualify him from presiding at the hearing and determining a mandamus suit to compel the proper officers to call an election thereunder. — Sauls v. Freeman, 24 Fla. 209, 12 Am. St. Rep. 190, 4 So. 525. Wife of Judge stockholder in cor- poration party to action, — although there are no statutory provisions on the subject, and the husband is not directly interested in the property of his wife during her life time, and she may encumber or dispose of it without his con- sent, — disqualifies the judge to sit or act in the action. — First Nat. Bank v. McGuire. 12 S. D. 226, 76 Am. St. Rep. 598, 47 L. R. A. 413, SO N. W. 1074; First Nat. Bank v. Keenan, 12 S. D. 241, 80 N. W. 532 4 eh. XV 11. J JUDGE PARTY OR INTERESTED. §42;j trial of the cause to another county,^ draw a jury panel for the term of court at which will come on for trial and determination a cause in which he is disqualified to sit l)ecause of his interest in the cause ;^ issue an order to show cause in an application by a corporation, in whicli he is a stockholder, for permission to change its name,^ but he can not issue an order directing the publication of the petition in such a cause f hear and determine pro- ceeding on affidavits charging contemptuous conduct toward the court," and the like. But a judgment of any kind by a judge disqualified, by reason of interest in the cause, is void," and the consent of the parties to his acting in the hearing and determination thereof can not srive it 1735; First Nat. Bank v. McCarthy, 13 S. D. 365, 83 N. W. 423. 2 People V. McGarvey, 55 Cal. 327, 328; Livermore v. Brundage, 64 Cal. 299, 30 Pac. 848; Kern Valley Water Co. v. McCord, 70 Cal. 646, 11 Pac. 798. 3 People V. Ah Lee Doon, 97 Cal. 171, 173, 31 Pac. 933. 4 Los Angeles Trust Co., In re, 158 Cal. 603, 112 Pac. 56. 5 Los Angeles Trust Co., In re, 158 Cal. 603, 607, 112 Pac. 56. citing Johnson v. German Ins. Co., 150 Cal. 336, 88 Pac. 985. « Hughes V. Moncur, 28 Cal. App. 462, 152 Pac. 968. 7 ALA. — Clouch V. Castelberry, 23 Ala. 85; Heydenfeldt v. Towns, 27 Ala. 423. CAL.— People ex rel. Carrillo v. De la Guerra, 24 Cal. 73; White, Estate of, 37 Cal. 190. IND. — Fecheimer v. Washington, 77 Ind. 366. MD. — Buckingham v. Davis, 9 Md. 324. MASS.— Cottle, Appellant, 22 Mass. (5 Pick.) 483; Coffin V. Cottle, 26 Mass. (9 Pick.) 287; Sigonrney v. Sibley, 38 Mass. (21 Pick.) 101, 32 Am. Dec. 428; Gay V. Minot, 57 Mass. (3 Cush.) 352; Bacon, Appellant, 73 Mass. (7 Gray) 791; Hall v. Thayer, 105 Mass. 219, 7 Am. Rep. 513. NEV.— Frevert v. Swift, 19 Nev. 363. 11 Pac. 273. N. H.— Stearns v. Wright, 51 N. H. 608; Bedell v. Bailey, 58 N. H. 62; Fowler v. Brooks, 64 N. H. 423, 10 Am. St. Rep. 425, 13 Atl. 417. N. Y.— Oakley v. Aspin- wall, 3 N. Y. 547; Wigand v. De- jonge, 8 Abb. N. C. 260; Schoon- maker v. Clearwater, 41 Barb. 200; affirmed in Chambers v. Clear- water, 40 N. Y. (1 Keyes) 310; Foot V. Morgan, 1 Hill 654; People V. Tweed, 50 How. Pr. 434; Darling v. Pierce, 15 Hun 452; Hancock, Matter of, 27 Hun 78; judgment reversed, 91 N. Y. 284; Edwards v. Russell, 21 Wend. 63. TENN. — Reams v. K e a r n s. 45 Tenn. (5 Coldw.) 217; Price v. Bowers, 67 Tenn. (8 Baxt.) 353. TEX.— Garnett v. Gaines, 6 Tex. 435; Chambers v. Hodges, 23 Tex. 104; Newcomb v. Light, 58 Tex. 141, 44 Am. Rep. 604; Abrams v. State, 31 Tex. Cr. App. 449, 452, 20 S. W. 987. See, also, note 32 Am. Dec. 428. 533 §424 CODE PLEADING AND PRACTICE. [Pt. I, validity, because consent can not confer jurisdiction where statute expressly declares disqualification.^ Similar statutes to the California statute regarding the disqualification of judges to try and determine causes of action pending in their courts are found in all the juris- dictions ; and it is universally held that they should re- ceive a broad and liberal interpretation rather than one that is technical or strict.^ H24. What interest disqualifies. The interest disqualifying a judge from hearing and determining a cause must be made to clearly appear,^ and must be shown by the supporting affidavits to be a direct, 8 See People ex rel. Carrillo v. De la Guerra, 24 Cal. 73; Segour- ney v. Sibley, 38 Mass. (21 Pick.) 101, 32 Am. Dec. 248; Richardson V. Welcome, 62 Mass. (8 Cush.) 331; Peninsular R. Co. v. Howard, 20 Mich. 25; Oakley v. Aspinwall, 3 N. Y. 547; Low v. Rice, 8 Johns. (N. Y.) 409; Clayton v. Per Dun, 13 Johns. (N. Y.) 218; Convers v. McArthur, 17 Barb. (N. Y.) 410; Schoonmaker v. Clearwater, 41 Barb. (N. Y.) 200; affirmed in Chambers v. Clearwater, 40 N. Y. (1 Keyes) 310; Hancock, Matter of, 27 Hun (N. Y.) 82; Abrams v. State, 41 Tex. Cr. App. 449, 20 S. W. 987. Voidable only and not void, is the doctrine of some of the cases. — See Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; Stearns v. Wright, 51 N. H. 600; Crowell v. Londonderry, 63 N. H. 49; Fowler V. Brooks, 64 N. H. 423, 10 Am. St, Rep. 425, 13 Atl. 417; Dimes v. Grand Junction Canal Co., 3 H. L. Cas. 759, 785, 790, 10 Eng. Repr. 301, 312, 314; Philips v. Eyre, L. R. 6 Q. B. 1, 22. — "As a rule, the judgment of an interested judge is voidable, and liable to be set aside by petition, error, or appeal, as the case may be; but it is not absolutely void, and persons acting under the au- thority of such a judgment, before it is set aside by competent au- thority, would not be liable to be treated as a trespasser." — Philips V. Eyre, L. R. 6 Q. B. 1, 22. — Doctrine applicable only at common law and in jurisdictions following the common law, not under statutory prohibition and in jurisdictions with the reformed procedural judicature. Disqualification existing by pub- lic policy and not by statute, the privilege is a personal one which may be waived by a party. — State v. Ham, 24 S. D. 640, Ann. Cas. 1912A, 1070, 124 N. W. 955. 9 North Bloomfield Gravel Min. Co. v. Keyser, 58 Cal. 315; Stock- well v. White Lake Tp. Board, 22 Mich. 350. 1 Heinlin v. Heilbom, 97 Cal. 101. 117, 31 Pac. 838. See, also, authorities footnote 8, this section. 534 ell. XVII.] INTEREST OF JUDGE DISQUALIFYING. §424 proximate, substantial and certain interest in the action or the result thereof, and not merely an indirect, remote, contingent, uncertain and shado\\y interest.- Thus, an interest as a taxpayer in the result of a cause in which it is sought to collect a money demand, the judgment in which cause will be contingent upon there having been money in the treasury applicable to the payment tliereof at the time when the claim accrued, does not constitute a disqualifying interest in the cause ;2 neither does the fact that the judge, as a taxpayer, has an interest in revenue to be derived from the defendants as a result of the judg- 2Heinlin v. Heilborn, 97 Cal. 101, 31 Pac. 838; Lassen Irr. Co. v. Superior Court, 151 Cal. 360, 90 Pac. 709. Additional compensation for hold- ing court in a county attached to another for judicial purposes, does not give the judge a disqualifying pecuniary interest. — White v. Hin- ton, 3 Wyo. 753, 17 L. R. A. 66, 30 Pac. 953. In Florida the interest disquali- fying a judge is a property interest in the action or its result, as con- tradistinguished from an interest of feeling, or sympathy, or bias that would disqualify a juror. — See Ochus V. Sheldon, 12 Fla. 138; Sauls V. Freeman, 24 Fla. 209, 12 Am. St. Rep. 190, 4 So. 525; Har- ris, Ex parte, 26 Fla. 77, 23 Am. St. Rep. 548, 6 L. R. A. 713, 7 So. 1. In Ohio, it is a pecuniary inter- est of the judge in the event or result of the trial which requires the removal of a cause. — State v. Winget, 37 Ohio St. 153. To same effect, Lassen Irr. Co. v. Superior Court, supra. Mayor of city ex officio judge, not disqualified from presiding at trial of a prosecution ci^iT-o-^nc; liquor-license violation, by the fact that any fines imposed are paid into the salary fund. — Guerrero, Ex parte, 69 Cal. 88, 10 Pac. 2G1. Ownership of paramount water, right by judge will not disqualify him in an action between a water company, holding a subservient right, and its customers claiming damages for failure to supply water under contract. — Lassen Irr. Co. v. Superior Court, 151 Cal. 360, 90 Pac. 709. Purchase of land at foreclosure sale disqualifies judge to grant leave to oflScer serving process to amend a defective return in the case. — Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438. Unsuccessful bid by trial judge for the lease of a mining claim does not disqualify him, because of interest, from hearing and deter- mining the validity of lease to the successful bidder. — Patrick v. Crowe, 15 Colo. 543. 25 Pac. 985. 3 Higgins V. San Diego, City of, 126 Cal. 303, 308, 58 Pac. TDO. .'9 Pac. 209; Los Angeles, City of. v. Pomeroy, 133 Cal. r)32, 6.:. P a c. 1019. Contingency of increase of taxes in future as result of decision, too remote and indistinct to disqualify 53: §424 CODE PLEADING AND PRACTICE, [Ft. T, ment in the action-/ or the fact that an action by the judge is pending against the moving party, where the action is in no way connected with the cause on trial, and the judgment in the one cause will in no way affect the judgment in the other cause f or the fact that the judge has purchased lands in the vicinity of the boundary line which is the subject-matter of the action, situated several miles away from the lands involved in the action on trial, when it is not shown by the supporting affidavits that the title to the judge's lands depends either upon the evidence or the law involved in determining the rights of the liti- gants in the pending action.^ Judge disqualified, because of his interest, where a bank, in which he is a stockholder, OAvns bonds of an issue the establishment of the validity of which is the object of the suit;^ or being a taxpayer, in an action to enjoin the a judge who is a tax-payer. — Los Angeles, City of, v. Pomeroy, 133 Cal. 532, 65 Pac. 1049. Lunacy inquest pending, judge who has purchased property from the alleged lunatic is not disqual- ified by interest from holding the inquest. — State ex rel. Smith v, Pitts, 139 Ala. 15G, 36 So. 20. Tax-paying judge not for that reason "personally interested" to a disqualifying degree in an action in which the county is a party. — Brittain v. Monroe County, 214 Pa. St. 651, 6 Ann. Cas. 617, 63 Atl. 1076. Validity of city charter amend- ment authorizing bond issue and levy of tax to pay the debt, being in issue, judge a property-owner and tax-payer in the city not dis- qualified to hear and determine the case.— Oak Cliff, City of, v. State ex rel. Gill, 97 Tex. 391, 393, 79 S. W. 1068. 4 Oakland, City of, v. Oakland Water-Front Co., 118 Cal. 249, 251, 50 Pac. 268. See: Guerrero, Ex parte, 69 Cal. 88, 10 Pac. 261; State ex rel. Schaw v. Noyes, 25 Nev. 31, 56 Pac. 946. sSouthern California Motor Road Co. V. San Bernardino Nat. Bank, 100 Cal. 316, 320, 34 Pac. 711 ; Southern California Motor Road Co. V. Merrill (Cal.), 34 Pac. 712. 6 Heinlin v. Heilborn, 97 Cal. 101, 117, 31 Pac. 838; Lambertson V. Superior Court, 151 Cal. 461, 91 Pac. 100. 7 Adams v. Minor, 121 Cal. 372, 53 Pac. 815. Extension of time within which any act is to be done in the cause is within the prohibition and not within the exceptions respecting disqualified judge by reason of in- terest.— Johnson V. German Amer- ican Ins. Co., 150 Cal. 339, 88 Pac. 985. ' ■ 536 eh. XVII.] RELATIONSHIP OF JUDGE. § 425 issuing of bonds, ^ or in a suit to declare an election estab- lishing a school district illegal and restrain assessment and collection of taxes,^ or a suit to enjoin city from con- structing water-works to be paid for in municipal bonds ;^^ or in an action for an injunction, where the property of the judge was equally subject to injury by the acts sought to be enjoined as the property of the plaintiff, and where the injunction sought would equally protect his property, the judge is disqualified from acting, and a writ of pro- hibition mil lie to restrain him from proceeding in the action, although the court over which he presides has jurisdiction of the cause. ^^ (^ 425. (2) Relationship by affinity or CONSANGUINITY. The commou law was ever watchful over the purity of trials, and to secure the fair administration of justice, guarded against the influences of those pas- sions most likely to pervert the judgment of men, — whether as judges or as jurors, — in deciding upon the conduct and controversies of their fellow men.^ By the common law a judge related to the parties, either by affinity- or consanguinity, or so related to any person a party to an action, which was pending in a court over which he presided, was disqualified to sit and act in the cause.^ Affinity is an artificial relationship arising from marriage,'' and the affinity that disqualifies a judge con- Wife a stockholder disqualifies. 2 Moses v. Julian, 45 N. H. 52, —See, ante, § 423, footnote 1. 84 Am. Dec. 114. 8 Meyer v. San Diego, City of, :; See: Bean v. Quimby, 5 N. H. 121 Cal. 102, 104. 66 Am. St. Rep. g^. ^^^^ ,, g^^j^j^ 9 ^J h. 63; 22, 41 L. R. A. 762, 53 Pac. 434. ^^^^^^ ^ j^^^.^^ ^5 ^. ^ 5,^ g^ State ex rel. Hart v. Call, 41 ^^^^.,^^ ^ ^^,.^^,^^^ Fla. 445, 79 Am. St. Rep. 189, 26 ' ^ „ . ,- ",,„,; 64 N. H. 423, 10 Am. St. Rep. 42o, So. 1014. ,, „ 10 State ex rel. Schaw v. Noyes, 13 Atl. 417j^ Sanborn v. Fellows, 25 Nev. 49, 56 Pac. 946. 22 N. H. 473. u North Bloomfield Gravel Min. i Kelly v. Neely, 12 Ark. 657, 5G Co. V. Keyser, 58 Cal. 315. Am. Dec. 288: Tegarden v. Philliro, 1 Jaques v. Com., 10 Gratt. (Va.) 14 Ind. App. 27, 32, 42 N. E. 549. G:)0. 537 I M25 CODE PLEADING AND PRACTICE. [Pt. I, sists in the relationship of the husband to the mfe's con- sangninei, and vice versa f but it does not exist between the blood relations of either spouse and the blood rela- tions of the other spouse.^ There are statutes in all the jurisdictions which disqualify a presiding judge from hearing and determining causes when they are related to either of the parties within a specified degree. The Cali- fornia statute^ may be taken as an example in this regard This statute provides that no judge shall sit or act as such 5 Harris, Ex parte, 26 Fla. 77, 23 Am. St. Rep. 548. 6 L. R. A. 713, 7 So. 1. 6 ALA.— Kirby v. State, 89 Ala. 63, 8 So. 110. ARK.— Kelly v. Neely, 12 Ark. 657, 56 Am. Dec. 288. FLA. —Harris, Ex parte, 26 Fla. 77, 23 Am. St. Rep. 548, 6 L. R. A. 713, 7 So. 1; State ex rel. Perez v. Wall, 41 Fla. 463, 79 Am. St. Rep. 195, 49 L. R. A. 548, 26 So. 1020. Ga!— Blalock V. Waldrup, 84 Ga. 145, 20 Am. St. Rep. 350, 10 S. E. 622 IND.— Tegarden v. Phillips, 14 Ind. App. 27, 33, 42 N. E. 549. ME_Spear v. Robinson, 29 Me. 531. N. Y. — Carman v. Newell, 1 Den. 25; Paddock v. Wells, 2 Barb. Ch. 331; Sollinger v. E a r 1 e, 45 N Y Super. Rep. (13 Jones & S.) 80- affirmed in 82 N. Y. 393, 60 How. Pr. 116. OHIO— Chinn v. State, 47 Ohio St. 575, 11 L. R. A. 630, 26 N. E. 986. TENN.— Water- house V. Martin, 7 Tenn. (Pick.) 374; Hume v. Commercial Bank, 78 Tenn. (10 Lea) 1, 34 Am. Rep. 290. "Affinity, as distinguished from consanguinity, signifies the rela- tion which each party to a mar- riage, the husband and the wife, bears to the kindred or blood re- lations of the other. The mar- riage having made them one person, the blood relations of each are held as related by affinity in the same degree to the one spouse as by consanguinity to the other, but the relationship by affinity does not extend further, and hence the maxim affinis mei affinis non est mihi affinis— a person related by affinity to one who is related to me by affinity is not related to me by affinity."— Cooper, J., in Hume V. Commercial Bank, 78 Tenn. (10 Lea) 1, 43 Am. Rep. 290. "If we undertake to apply the rule of affinity to the relation of husband and wife, we can not ex- clude the husband from sitting in a case in which his wife has the right to sue alone and is an in- terested party, as they are not related to each other by affinity or consanguinity, — a n d no one would ever suppose that this was permissible."— Mabry in State ex rel. Perez v. Wall, 41 Fla. 463, 79 Am. St. Rep. 195, 49 L. R. A. 548, 26 So. 1020. If not excluded on the ground of relationship, the judge is surely excluded on the ground of interest. —See, ante, § 423, footnote 1. 7 Kerr's Cyc. Cal. Code C i v. Proc, 2d ed., § 170, par. 2; Bien- nial Supp. 1915, p. 3040. 538 rh. XVII.] RELATIOXSHIP OF JUDGE. §425 in any action or proceeding when he is related to either party,^ or to an officer of a corporation which is a party,*^ or to an attorney,^® counsel, or agent of either party, by ** Creditor in insolvency proceed- ing related to judge before whom hearing is to be held does not dis- qualify him to preside at the hear- ing. — Chinette v. Conklin, 10.5 Cal. 465, 38 Pac. 1107. Otherwise if he has filed a claim. — See, post, § 426, footnote 3. Part ownership by brother of a mining claim does not disqualify trial judge from hearing and de- termining an action involving the validity of a lease of the mine, where there is nothing to show that the brother's interest was covered by the lease. — Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985. 9 Cousin-german of stockholder of corporation a party wife of judge, does not disqualify latter. — Robinson v. Southern Pac. Co., 105 Cal. 526, 28 L. R. A. 773, 3 Pac. 94, 722. Director of corporation is an of- ficer thereof within the meaning of the statute. — Lynip v. Alturas School District, 29 Cal. App. 158, 155 Pac. 109. — Bank in which brother a direc- tor being the real party in interest, though action brought in name of a private individual, disqualifies presiding judge. — Id. Order to show cause on applica- tion for permission to change name of corporation is not within the prohibition, because in mak- ing such order no discretion is exercised and is ministerial rather than judicial. — Los Angeles Trust Co., In re, 158 Cal. 603, 112 Pac. 56. — Order for publication of peti- tion is otherwise. — Id., citing Johnson v. German American Ins. Co., 150 Cal. 33, 88 Pac. 985. Relationship to stockholder of corporation party to the action, does not disqualify judge to cause. — Robinson v. Southern Pac. Co., 105 Cal. 526, 28 L, R. A. 773, 38 Pac. 94, 722; Bank of Lassen County v. Sherer, 108 Cal. 513, 41 Pac. 415. Compare: Place v. Butternuts Woolen & C. Mfg. Co., 28 Barb. (N. Y.) 503; case reversed, 26 How. Pr. (N. Y.) 601. Stockholder's kinship to Judge does not disqualify the latter to sit and act in a cause in which the corporation is a party or directly interested. — Dodge, Mat- ter of, 77 N. Y. 105, 33 Am. Rep. 579. Wife of judge stockholder in corporation, disqualifies judge. — See, ante, § 423, footnote 1. 10 Attorney employed after is- sues framed related to judge to preside at trial, said to disqualify, but this holding was pure dictum in the case. — Estudillo v. Security Loan & Trust Co., 158 Cal. 66, 109 Pac. 884. Attorney of record not essential to disqualify trial judge; if he appears in the case as "of counsel" that is sufficient to disqualify. — .Johnson v. Brown, 115 Cal. 694, 696, 47 Pac. 686. In Colorado it has been held that the fact that the trial judge is a brother of an attorney of one of the parties does not disqualify him to hear and determine the nause; but the court, reversing the 539 ^425 CODE PLEADING AND PRACTICE. [Pt. I, consanguinity or affinity, within the third degree,^^ with enumerated instances in which the disqualification may be waived by filing a written stipulation to that effect. Such disqualification, however, does not prohibit the presiding or trial judge from regulating the calendar and arranging the business of his court,^- or from transferring the trial of the cause to another court, ^-^ or from calling another judge to hear and determine the cause. Even in those cases in which no objection is made by any party to the action, the judge has no right to act, and should, of his owTi motion,^* decline to sit and act as judge in the cause. In such a case the judge can not dismiss the action ; and if he should make an order dismissing it, such order will be void, on the ground of his incapacity to act in the cause. ^^ Should a judge thus related within the prohib- ited degree sit and act at a trial of a cause, any judgment rendered will not only be voidable, but void,^^ on the judgment on other . grounds, sug- gested the advisability of calling in another judge on the retrial of the cause, if a change in the place of trial was not granted in the meantime. — Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985. Son having contingent fee in the cause, judge disqualified by reason of relationship to attorney. — Howell V. Budd, 91 Cal. 342, 27 Pac. 747; Vine v. Jones, 13 S. D. 54, 59, 82 N. W. 82. See, to same effect, Johnson v. State, 87 Ark. 45, 50, 18 L. R. A. (N. S.) 619, 112 S. W. 143. 11 People ex rel. Carrillo v. De la Guerra, 24 Cal. 73. Fourth degree in New Hamp- shire. — Fowler v. Brooks, 64 X. H. 423, 10 Am. St. Rep. 425, 13 All 417. Sixth degree in Tennessee. — Hume V. Commercial Bank, 78 Tenn. (10 Lea) 1, 43 Am. Rep. 290. Ninth degree at common law. — O'Connor v. State, 9 Fla. 215; Morrison v. McKinnon, 12 Fla. 552. 12 People ex rel. Carrillo v. De la Guerra, 24 Cal. 73. i:i People ex rel. Carrillo v. De la Guerra, 24 Cal. 73. 14 People ex rel. Carrillo v. De la Guerra, 24 Cal. 73. 15 People ex rel. Carrillo v. De la Guerra, 24 Cal. 73; Abrams v. State, 31 Tex. Cr. App. 449, 452, 20 S. W. 987; State ex rel. Cougill V. Sachs, 3 Wash. 691, 695, 29 Pac. 446. Extension of time within which to do an act required in the cause is within the prohibition where the trial judge is disqualified by relationship. — See Johnson v. Ger- man American Ins. Co., 150 Cal. 339, 88 Pac. 985. ic Judicial discretion exercised, the act is void in a case where he 540 ell. XVII.] RELATIONSHIP — "pARTY"W1I0. §§42G, 42( i>TOund of the incapacity of the judge to sit and act in the cause/^ and such judgment will be reversed on appeal;''* consent of tlie parties that the judge may sit and act can not validate the judgment/'' — except in those instances especially provided for. § 426. ' * Party ' ' includes whom. The w^ord ''party," as used in the California statute and statutes having a similar provision, is not confined to the persons whose names appear in the record, but includes all persons whose interests are represented by parties to the record.^ Thus, wdiere a bank is in fact the real party in interest in a cause, it is a ''party" to the suit within the provision of the statute, notwithstanding the fact that the suit is instituted in the name of a private individual. - And where a person has filed a claim in insolvency pro- ceedings, he is a " party ' ' to such proceedings within the statute.* § 427. Rule for determinixg rela- tionship. In California rule for computing the degrees of relationship is the civil-law rule;^ that is to say, the degrees of kindred are established by the number of gen- is disqualified from acting. — Fre- Bloomfield Gravel Min. Co. v. Key- vert V. Swift, 19 Nev. 363, 11 Pac. ser, 58 Cal. 315, 322; Fredericks 273. v. Judah, 73 Cal. 604, 608, 15 Pac. 17 See authorities, footnote 15, 305; Briggs v. Briggs, 80 Cal. 253, this section. 255, 22 Pac. 342; Stockwell v. isOrd V. De la Guerra, 18 Cal. White Lake Tp. Board, 22 Mich. 67; De la Guerra v. Burton, 23 Cal. 341, 350; Hodde v. Susan, 58 Tex. 592; People ex rel. Carrillo v. De 389; Gains v. Barr, 60 Tex. 676; la Guerra, 24 Cal. 73, 77; Ruse v. Schultze v. McLeary, 73 Tex. 92, Moore (Cal. October Term, 1863), 11 S. W. 924. unreported. 2 Lynip v. Alturas School Dis- 19 Oakley v. Aspinwall, 3 N. Y. trict, 29 Cal. App. 158, 155 Pac. 547; Abrams v. State, 31 Tex. Cr. 109. App. 449, 452, 20 S. W. 987. 3 Chinette v. Conklin, 105 Cal. 1 Howell v. Budd, 91 Cal. 342, 465, 38 Pac. 1107; Chope, In re, 352-3, 27 Pac. 747. See: Johnson 112 Cal. 630, 632, 44 Pac. 1066. V. State, 87 Ark. 45, 18 L. R. A. i People ex rel. Carrillo v. De (N. S.> 619, 112 S. W. 143; North la Guerra, 24 Cal. 73, 76. 541 §427 CODE PLEADING AND PRACTICE. [Ft. r, erations, and each generation is called a degree.- In the collateral line the degrees are counted by generations from one of the relations up to a common ancester, and down from common ancester to the other relation. This makes brothers related in the second degree; uncle and nephew or niece, in the third degree ; cousins-german, in the fourth degree, and so on.^ Illustrations under rule — Disqualifying judge to sit and act in a cause when one of the parties thereto, or a party in interest, or an attorney or counsel for one of the par- ties, is a brother-in-law,^ cousin,^ first cousin by mar- riage,*' a nephew,'^ a niece,^ a son,^ and the like. Not disqualifying, it has been held on the other hand, where the party or the attorney is cousin-german or second cousin,^" or is a cousin of the wife of the judge, ^^ or is husband of the aunt of the wife of the judge,^^ or husband of the sister of the judge's Avife,^^ or husband of the niece of the wife of the judgej^"* and the like. 2 Kerr's Cyc. Cal. Civil Code, § 1389. 3 Id., §§1389-1393, and notes. 4 Hall V. Thayer, 105 Mass. 219, 7 Am. Rep. 513. Compare: Footnote 13, this sec- tion. •"' Horton v. Howard, 79 Mich. CA2, 19 Am. St. Rep. 198, 44 N. W. 1112. 439. Restrictions on removal, — State and fed- eral,. Any restriction upon the right to remove a cause from a state to a federal court, imposed by a state legis- lature is unconstitutional,^ — e. g. revocation of license of 4 Hagula V. Mississippi River Power Co., 202 Fed. 771. In this connection see the dis- cussions and authorities cited in Myers v. Chicago & N. W. R. Co., 118 Iowa 312, 91 N. W. 1076; Kirby V. Chicago & N. W. R. Co., 106 Fed. 551; Mason City & Ft. D. R. Co. V. Boynton, 204 U. S. 570, 51 L. Ed. 629, 27 Sup. Ct. Rep. 321; Wisner, Ex parte, 203 U. S. 449, 51 L. Ed. 264, 27 Sup. Ct. Rep. 150; criticised and overruled in part in Moore, In re, 209 U. S. 490, 52 L. Ed. 904, 14 Ann. Gas. 1164, 28 Sup. Ct. Rep. 585, 706; Winn, In re, 213 U. S. 458, 53 L. Ed. 873, 29 Sup. Ct. Rep. 515; Harding, Ex parte, 219 U. S. 363, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, 31 Sup. Ct. Rep. 324. 5 Jackson v. Alabama Great So. R. Co., 58 Miss. 684. « Landers v. Tracy, 171 Ky. 657, 188 S. W. 763; Illinois Cent. R. Co. V. Sheegog, 177 Fed. 756; South- ern R. Co. V. Allison, 190 U. S. 326, 47 L. Ed. 1078, 23 Sup. Ct. Rep. 713; Mason City & F. D. R. Co. V. Boynton, 204 U. S. 570, 51 L. Ed. 629, 27 Sup. Ct. Rep. 321; Dunn, In re Matter of, 212 U. S. 374, 53 L. Ed. 558, 29 Sup. Ct. Rep. 299. 7 See Fidelity Trust Co. v. Gill Car Co., 25 Fed. 737; Martin v. Carter, 48 Fed. 596; Johnson v. Wells, 91 Fed. 3; Phoenix Ins. Co. v. Pechner, 95 U. S. 183, 24 L. Ed. 427; Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Kentucky v. Powers, 201 U. S. 1, 50 L. Ed. 633, 5 Ann. Gas. 692, 26 Sup. Ct. Rep. 387, re- versing 139 Fed. 452. 8 Willard v. Chicago, B. & Q. R. Co., 91 C. C. A. 215, 165 Fed. 181. 1 Donald v. Philadelphia & Read- ing Coal & Iron Co., 241 U. S. 239, 60 L. Ed. 1027, 36 Sup. Ct. Rep. 563 §439 CODE PLEADING AND PUACTICE. [Ft. 1, foreign corporation to do business in the state on its re- moval of a suit brought against it from the state to a federal court,- — and does not prevent a removal." But Congress may provide for the removal of one class of cases because of local prejudice and undue influence pre- venting a fair trial in the state courts, to the exclusion of other cases similarly situated.'* Common carriers' liability cases, to their employees, are by express provision excepted from the operatioii of the statute providing for removal, when the action is brought in a state court of competent jurisdiction.^ 563, affirming Western Union Tel. Co. V. Frear, 216 Fed. 199. See Hess V. Reynolds, 113 U. S. 73, 28 L. Ed. 927, 5 Sup. Ct. Rep. 577; Southern Pac. Co. v. Denton, 146 U. S. 202, 36 L. Ed. 493, 13 Sup. Ct. Rep. 44; Regan v. Farmers' Loan & T. Co., 154 U. S. 362, 391, 38 L. Ed. 1014, 14 Sup. Ct. Rep. 1047, 4 Inter. Com. Rep. 560; St. Louis & S. F. R. Co. V. James, 161 U. S. 545, 40 L. Ed. 802, 16 Sup. Ct. Rep. 621; Southern R. Co. v. Allison, 190 U. S. 326, 47 L. Ed. 1078, 23 Sup. Ct. Rep. 713; Courtney v. Pradt, 196 U. S. 89, 49 L. Ed. 398, 25 Sup. Ct. Rep. 208; Madisonville Traction Co. v. St. Bernard Min. Co., 196 U. S. 239, 49 L. Ed. 462, 467, 25 Sup. Ct. Rep. 251; Young, Ex parte, 209 U. S. 123, 52 L. Ed. 714, 14 Ann. Cas. 764, 13 L. R. A. (N. S.) 932, 28 Sup. Ct. Rep. 441; Herndon v. Chicago, R. I. & P. R. Co., 218 U. S. 135, 54 L. Ed. 907. 80 Sup. Ct. Rep. 633; Harrison v. St. Louis & S. F. R. Co., 232 U. S. 318, 58 L. Ed. 621, L. R. A. 1915F, 1187, 34 Sup. Ct. Rep. 333. 2 See Home Ins. Co. v. Morse, 87 U. S. (20 Wall.) 445, 22 L. Ed. 365; Harrison v. St. Louis & S. F. R. Co., 232 U. S. 318. 58 L. Ed. 621, L. R. A. 1915F, 1187, 34 Sup. Ct. Rep. 333, affirming 171 Fed. 4SU; Donald v. Philadelphia & Reading Coal & Iron Co., 241 U. S. 239, 60 L. Ed. 1027, 36 Sup. Ct. Rep. 563. A contrary view has also been announced, holding that a state legislature has the right to pro- vide for the forfeiture of the li- cense of a foreign company to do business in the state upon its re- moval of a suit brought against it from the state to a federal court. — Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246, 50 L. Ed. 1013, 6 Ann. Cas. 317, 26 Sup. Ct. Rep. 619. But that case is criticised as "extremely narrow" in the cases above cited. See discussion in 5 Fed. Stats. Ann., 2d ed., pp. 35 et seq. 3 Judson V. Knights of the Mac- cabees of the World, 220 Fed. 1004. See Barrow v. Hunton, 99 U. S. 80, 25 L. Ed. 407. 4 Lombardo v. Boston & M. R. Co., 223 Fed. 427. 5 Federal Judicial Code, § 28, second "proviso"; 5 Fed. Stats. Ann., 2d ed., p. 17. 564 Ch. XVIII.] RIGHT OF REMOVAL. § 440 Employers' Liability Act cases, under the federal stat- ute, are made unremovable by special provision,*' and this provision has been held to be constitutionaL"^ But it has been held that when in the complaint, for the same injury, there are counts under the federal Employers' Liability Act, under the common law, and under the state statute, the action is removable from the state to a federal court.^ In an action against a railroad alleging that the company was engaged in interstate commerce, on an application for removal of the cause on the ground that the allegation that the defendant was engaged in interstate commerce was fraudulently made, the state court may try the ques- tion of the fraudulent allegation of jurisdictional facts." § 440. Right of eemoval. We have already seen that the removal of a cause from a state to a federal court is a purely statutory proceeding^ which is subject to re- strictions by act of Congress,- notwithstanding the fact that the constitution of the United States secures to de- fendants who are citizens of another state than the one in which an action at law or a suit in equity is brought an absolute right to remove the cause from the state court Old., third "proviso"; also fed- 7 See Kansas City Southern R. era] Employers' Liability Act, § 6. Co. v. Cook, 100 Ark. 467, 140 S. W. See Southern R. Co. v. Puckett, 16 579; Fish v. Chicago, R. I. & P. R. Ga. App. 551, 85 S. E. 800; Jones Co., 263 Mo. 106, Ann. Cas. 191611. V. Kansas City Southern R. Co., 147, 172 S. W. 340; McChesney v. 137 La. 178, 68 So. 401; Moore v. Illinois Cent. R. Co., 197 Fed. 85; St. Joseph & G. I. R. Co., 268 Mo. Kelly v. Chesapeake & O. R. Co.. 31, 186 S. W. 1035; Texas & P. R. 201 Fed. 602; Teel v. Chesapeake Co. V. Rasmussen (Tex. Civ. App.), & O. R. Co., 123 C. C. A. 240, 204 181 S. W. 212; Texas & P. R. Co. Fed. 918, 47 L. R. A. (N. S.) 21; V. Sherer (Tex. Civ. App.), 183 Gibson v. Ballingham & N. R. Co., S. W. 404; Lombardo v. Boston & 213 Fed. 4SS; Gaines v. Fuentes, M. R. Co., 223 Fed. 427; Peek v. 92 U. S. 10, 17-18, 23 L. Ed. 524. Boston & M. R. Co., 223 Fed. 448; 8 Flas v. Illinois Cent. R. Co., 229 Kansas City Southern R. Co. v. Fed. 319. Leslie, 238 U. S. 539, 59 L. Ed. 9 Chesapeake & O. R. Co. v. 1478, 35 Sup. Ct. Rep. 844, revers- Shaw, 168 Ky. 537, 182 S. W. 653. ing 112 Ark. 305, Ann. Cas. 1915B, i See, ante, § 438. 834, 167 S. W. 83. 2 See, ante. § 439. 565 §440 CODE PLEADING AND PRACTICE. [Pt. I, into a federal court, upon compliance with the terms of the statute providing for the removal of causes upon such a ground/'' whether or not the action or suit, as an original proceeding, could have been maintained in the federal court to Avhich it is sought to be removed,^ except in those cases in which the amount in controversy is below the limit of the jurisdiction of the federal court.-^ The right of removal is restricted as to the parties who can exercise it, as to the classes of actions in which it may be exercised, and as to the time at which an election to exer- cise the privilege must be made.^ The jurisdictional amount is raised from five hundred dollars to two thou- sand dollars. So, the right of removal is limited to the defendant or defendants in the suit; but the language should be construed, in respect to such defendants, as it was prior to the enactment of the federal Judicial Code." The right of a citizen to remove a cause into a federal court is not a vested right of property. The rules as to statutory construction in those cases in which vested rights are involved do not apply when the jurisdiction of a federal court to entertain a removal cause has been cut off by an act of Congress.^ The right of removal is restricted by the federal Judicial Code'' to * ' any suit of a civil nature, at law or in equity,"^*' and it is not sufficient to confer the right of removal that the cause arises under 3 See Home Ins. Co. v. Morse, 87 U. S. (20 Wall.) 445, 22 L. Ed. 365. See, also, authorities, cited 5 Dig. U. S. Reps. (Co.-ops. ed.), p. 5056, par. 9. 4 Kern v. Huidekoper, 103 U. S. 485, 26 L. Ed. 354. See Baltimore & O. R. Co. V. Gary, 28 Ohio St. 216. ^ As to amount in controversy as affecting the right to remove the cause, see, post, § 455. <; See Woolf v. Chisholm, 30 Fed. 881; Gregory v. Pike, 67 Fed. 837. See full provision in federal Ju- dicial Code, § 28, 5 Fed. Stats. Ann., 2d ed., p. 16. 7 See New York Construction Co. V. Simons, 53 Fed. 1. s Manley v. Onley, 23 Fed. 708. Matter fully discussed, ante, §439. 9 § 28, 5 Fed. Stats. Ann., 2d ed., p. 16. 10 See Ferguson v. Ross, 38 Fed. 161; Texas v. Day Land & Cattle Co., 41 Fed. 228; Brisenden v. Chamberlain, 53 Fed. 307. 566 Ch. XVIII.] RIGHT OF REMOVAL. § 440 the constitution and laws of the United States, or that it is between citizens of different states ; it must be a * ' suit of a civil nature, at law or in equity, "^^ and does not in- clude an action to enforce a criminal, or a quasi-criminal statute of the state, or to recover a penalty thereunder, ^- but does include an action to recover indemnity for a civil injury, although the statute punishes the act which is the cause of the injury, and the basis of the suit, as a crime.^^ It is not the form but the nature of the action which determines whether it is removable or not remov- able.^^ Thus, there has been held to be within the removal statute an action or proceeding to secure alimony awarded under a decree of a state court,^^ or for damages for caus- ing a wrongful levy of an execution to be made by a United States marshal upon property of the plaintiff in a cause arising under the laws of the United States, ^^ or for damages for causing wrongful death ;i^ for the estab- lishment of a drain under a state statute, after the filing of the report of the commissioners in the state court and the presentation and filing of a remonstrance thereto ;^^ in proceedings under the power of eminent domain for the appointment of appraisers to estimate the daraage^^ 11 Kurtz V. Moffitt, 115 U. S. 487, Co., 37 Fed. 497; Texas v. Daj' 29 L. Ed. 458, 6 Sup. Ct. Rep. 148. Land & Cattle Co., 41 Fed. 228, 12 See, among other cases, Iowa 230; Day v. Chicago, M. & St. P. V. Chicago, B. & Q. R. Co., 37 Fed. R. Co., 45 Fed. 82, 84; Indiana v. 497, 503; Ferguson v. Ross, 38 Alleghany Oil Co., 85 Fed. 873: Fed. 161; United States v. Mexi- Ames v. Kansas, 111 U. S. 449, 28 can Nat. R. Co., 40 Fed. 769; Texas L. Ed. 482, 4 Sup. Ct. Rep. 437; V. Day Land & Cattle Co., 41 Fed. Wisconsin v. Pelican Ins. Co., 127 228, 49 Fed. 593; United States v. U. S. 265. 32 L. Ed. 239, 8 Sup. Ct. Whitcomb Metallic Bedstead Co., Rep. 1370. 45 Fed. 89; Indiana v. Alleghany is Israel v. Israel, 130 Fed. 237. Oil Co., 85 Fed. 870; Montgomery i« Hurst v. Cobb. 61 Fed. 1. V. Postal Tel. Cable Co.. 218 Fed. it Malloy v. American Hide & 471. Leather Co., 148 Fed. 482. 13 Robertson v. Kittell, 64 N. II. is Jarnecke Ditch, In re, Gl) Fed. 430, 14 Atl. 78; Buford v. Strother, 161. 3 McCr. 253, 10 Fed. 406. i'.> Hartford & C. W. R. Co. v, n Iowa V. Chicago, B. & Q. R. Montague, 94 Fed. 227. 567 §440 CODE PLEADING AND PRACTICE. [Ft. I, or to determine the amount of compensation to be paid to a landowner whose property is taken or injured,-** but does not include an application by a railroad to the rail- road commission for peimission to take land;^^ forcible entry and detainer proceedings ;-2 prize proceedings against an inhabitant of the United States ;2^ quo war- ranto proceedings;-^ suit to compel the receiver of a national bank to pay to the complainant certain assets of the bank in his hands ;^^ and a suit against a receiver ap- pointed by a federal court may be removed from a state to a federal court on that ground alone.^^ Among the actions and proceedings not within the removal statute are con- tempt proceedings ;-''' proceedings to establish and pro- bate a wilP^ or to determine whether decedent's property is community or separate property,-^ — although an action 20 Patterson v. Mississippi & Railroad Boom Co., 3 Dill. 465, Fed. Cas. No. 10829; Delafield, In re, 109 Fed. 577. 21 New York, N. H. & H. R. Co. V. Cockcroft, 46 Fed. 881. 22 Wheeler v. Bates, 6 Biss. 88, Fed. Cas. No. 17492. 2a Graham, Ex parte, 3 Wash. C. C. 456, Fed Cas. No. 5657. 24 Illinois V. Illinois Cent. R. Co., 33 Ft J. 721; Ames v. Kansas, 111 U. S. 449, 28 L. Ed. 482, 4 Sup. Ct. Rep. 437. 25 Sowles V. First Nat. Bank, 46 Fed. 513; Hot Springs Indepen- dent School Dist. V. First Nat. Bank, 61 Fed. 417. 26 Jewett V. Whitcomb, 69 Fed. 417; Carpenter v. Northern Pac. R. Co., 75 Fed. 850; Texas & P. R. Co. V. Cox, 145 U. S. 593, 603, 36 L. Ed. 829, 832-3, 12 Sup. Ct. Rep. 905. 2T Williams Mower & Reaper Co. V. Raynor, 7 Bis. 245, Fed. Cas. No. 17748; McLeod v. Duncan, 5 McL. 342, Fed. Cas. No. 8898; Kirk V. Milwaukee Dust Collector Co., 26 Fed. 501. 2S PoweU V. Watkins, 172 N. C. 244, 90 S. E. 207; Frazer, In re, 18 Alb. L. J. 353, 7 Cent. L. J. 227, Fed. Cas. No. 5068; Reed v. Reed, 31 Fed. 49; Cilley, In re, 58 Fed. 977; Cilley v. Patten, 62 Fed. 498; Foley, In re, 76 Fed. 390; Aspin- wall, In re, 83 Fed. 851; Wahl v. Franz, 40 C. C. A. 638, 100 Fed. 680, 49 L. R. A. 62; Broderick's Will, Case of, 88 U. S. (21 Wall.) 503, sub nom. Kieley v. McGlynn, 22 L. Ed. 599. Proceeding inter partes, and not in rem, under the state statute, to establish will conclusively as muni- ment of title, it is a suit of a civil nature. — Broadhead v. Shoemaker, 44 Fed. 518. Reason for the rule is explained in Underground Electric R. Co. v. Owsley, 99 C. C. A. 500, 176 Fed. 26. 29 Foley, In re, 80 Fed. 949. 568 •h. XVIII.] POWER OF REMOVAL, §441 to construe""' or contest a will,^^ where the state statute authorizes such an action as a distinct proceeding as dis- tinguished from a proceeding to establish and probate a will, or contest of distribution,^- or to establish a lost will,22 or a claim against decedent's estate,^^ or to estab- lish heirship,^^ are suits within the removal statute. But libel in personam in admiralty is not within the removal statute,^^ or scire facias proceedings,^^ and the like.^'' § 441. Power of Removal. The power to remove a cause from a state to a federal court is a purely statutory one,^ and must be exercised in accordance with and only when a cause therefor is made out under the removal stat- ute. The power to order the removal resides, in the first instance, in the state court in which the action is pending, and is confined to a suit of a civil nature, at law or in equity.- Thus, it has been held that a district court of 30 Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396. 31 Richardson v. Green, 9 CCA. 565, 15 U. S. App. 488, 61 Fed. 423; Williams v. Crabb, 54 C C A. 213, 117 Fed. 193, 59 L. R. A. 425; Sawyer v. White, 58 C. C. A, 587, 122 Fed. 223; Pulver v. Leonard, 176 Fed. 586; McDermott v. Han- non, 203 Fed. 1015; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Fraser v. Jennison, 106 U. S. 191, 27 L. Ed. 131, 1 Sup. Ct. Rep. 171; Ellis V. Davis, 109 U. S. 485, 27 L. Ed. 1006, 3 Sup. Ct. Rep. 327. 32 Craigie v. McArthur, 4 Dill. 474, Fed. Cas. No. 3341. 33 Southworth v. Adams, 4 Fed. 1. 34 Schneider v. Eldredge, 125 Fed. 639; Yonley v. Lavender, SS IT. S. (21 Wall.) 276, 22 L. Ed. 538; Hess V. Reynolds, 113 U. S. 73, 28 L. Ed. 927, 5 Sup. Ct. Rep. 377; Clark V. Bever, 139 U. S. 96, 35 L. Ed. 88, 11 Sup. Ct. Rep. 468; Lyers v. McAulcy, 149 U. S. 608. 37 L. Ed. 867, 13 Sup. Ct. Rep. 906. 35 McClellan v. Garland, 217 U.S. 268, 53 L. Ed. 208, 29 Sup. Ct. Rep. 92. 36 Manchester v. Hotchkiss, 13 Int. Rev. Rec. 125, 10 Am. L. Reg. (N. S.) 379, Fed. Cas. No. 9004; Atkins V. Fiber Disintegrating Co., 85 U. S. (18 Wall.) 272, 21 L. Ed. 841; Louisville Underwriters, In re, 134 U. S. 492, 33 L. Ed. 994, 10 Sup. Ct. Rep. 589. 37 Steams v. Barrett, 1 Mas. 153, Fed. Cas. No. 13337. 3s As to what are "suits" within the removal statute, see 5 Fed. Stats. Ann., 2d ed., pp. 43-57. As to suits removable, see, Id., pp. 84-SS. As to suits nonremovablo, sec, Id., pp. 89-92. 1 See. ante. §§ 438, iZd. - See, ante, § 440. Order of state court removing a cause to the federal court can confer no jurisdiction on the lat- 569 §442 CODE PLEADING AND PRACTICE. [Pt. I, the United States has no authority or power to order a criminal prosecution pending in a state court to be trans- ferred into the federal district court therefrom.^ § 442. Persons who may remove action. A person who has brought an action in a court of his own state against a citizen of another state, is not entitled to remove the action to a federal court/ that privilege being accorded to defendants only.- A defendant within the meaning of section twenty-eight of the federal Judicial Code, is one who is named as such, and appears in the record as a defendant, at the time the right of removal exists.^ Fail- ure on the part of one of the defendants to join in the petition is fatal to the right of removal when there is no separable controversy.* But merely nominal or formal defendants need not join in the petition, where they have not appeared, and where there is no issue between them and the plaintiff upon which a verdict could have been rendered.^ And defendants who are all residents of the ter court, where the petition for removal fails to show that the party is entitled to a removal. — • Hubbard v. Chicago, M. & St. P. R. Co., 176 Fed. 994. 3 Virginia v. Paul, 148 U. S. 107, 37 L. Ed. 386, 13 Sup. Ct. Rep. 536. 1 Hurst V. Western & A. R. Co., 93 U. S. 71, 23 L. Ed. 805. 2 Judicial Code, §28, 5 Fed. Stats. Ann., 2d ed., p. 16. See: Chappell V. Chappell, 86 Md. 532, 39 Atl. 984; Pitkin County Min. Co. V. Markell, 33 Fed. 386; Caples V. Texas & P. R. Co., 67 Fed. 9; Hageria v. Mississippi River Power Co., 202 Fed. 771; Glover Machine Works v. Cooke Jellico Coal Co., 222 Fed. 531; Harnick v. Harnick, 153 U. S. 192, 38 L. Ed. 685, 14 Sup. Ct. Rep. 835. a Walker v. Richards, 55 Fed. 129. 4 Western Union Tel. Co. v. Brown, 32 Fed. 337; Thompson v. Chicago, St. P. & K. C. R. Co., 60 Fed. 773; Plymouth Consol. Gold Min. Co. V. Amador & S. Canal Co., 118 U. S. 264, 30 L. Ed. 232, 6 Sup. Ct. Rep. 1034. 5 Shattuck y. North British & Mercantile Ins. Co., 7 C. G. A. 386, 58 Fed. 609. Parties having no interest, either personal or representative, have no right to remove cause. — Adelbert College of Western Re- serve University v. Toledo, W. & W. R. Co., 47 Fed. 836; appeal dis- missed, 146 U. S. 354, 36 L. Ed. 1002, 13 Sup. Ct. Rep. 281. Thus, where a person has made no application to intervene, and under the statute can not inter- vene with an order of court grant- ing permission to do so, can not 570 Ch. XVIII.] TIME OF APPLICATION. § 443 state in wliicli the suit is brought, they are not entitled to a removal.^ An unnaturalized Indian sued in state court may remove the cause to a federal court/ Superintend- ent of insurance of a state creating an insurance com- pany, in whom its property has vested by its dissolution, inaj^ remove a suit brought in a court of the state before its dissolution, by a citizen of another state. ^ § 443. Time of application for removal — In general. The Judicial Code requires that in all cases, except in suits removable on the ground of prejudice or local influ- ence,^ where a party desires to remove a cause he must make and file his petition, duly verified, in the state court at the time, or at any time before, the defendant is re- quired by the laws of the state or the rule of the state court to answer or plead to the complaint or declaration of the plaintiff.- This is substantially the provision as to time when to apply for a removal prevailing before the adoption of the federal Judicial Code.^ This require- ment as to time has been said not to be jurisdictional and may be waived.'* And an application for removal is re- remove a cause. — State v. Barns, fluence as a ground for removal of 5 N. D. 350, 65 N. W. 688. See cause, see, post, § 448. Chesapeake & O. R. Co. v. Ven- 2 J u d i c i a 1 Code, § 29, 5 Fed. able, 111 Ky. 41, 63 S. W. 35. Stats. Ann., 2d ed., p. 235. f. Martin v. Snyder, 148 U. S. 3 See: Dixon v. Western Union 663, 37 L. Ed. 602, 13 Sup. Ct. Rep. Tel. Co., 38 Fed. 377; Cookerly v. 706. See: Chappell V. Chappell, 86 Great Northern R. Co., 70 Fed. Md. 544, 39 Atl. 984; Gregory v. 277; Fidelity Trust & Safety-Vault Pike, 15 C. C. A. 42, 21 U. S. App. Co. v. Newport News & M. V. Co., 638, 67 Fed. 847; Fife v. Whittell, 70 Fed. 403; First Littleton Bridge 102 Fed. 539; Parkinson v. Barr, Corp. v. Connecticut River Lum- 105 Fed. 84; Martin v. Baltimore her Co., 71 Fed. 225; Collins v. 6 O. R. Co., 151 U. S. 677, 38 L. Ed. Stott, 76 Fed. 613. 313, 14 Sup. Ct. Rep. 533. See, also, cases cited in next 7 Paul V. Chilsoquie, 70 Fed. 420. footnote. s Relfe V. Rundle, 103 U. S. 22, 4 Ayers v. Watson, 113 U. S. 594, sub nom. Life Assoc, of America, 28 L, Ed. 1093, 5 Sup. Ct. Rep. 641; Relfe, Supt. Ins. v. Rundle, 26 St. Louis & S. F. R. Co. v. Mc- L. Ed. 337. Bride, 141 U. S. 127, 35 L. Ed. 659, 1 As to prejudice or local in- ii Sup. Ct. Rep. 982; Texas & 571 §443 CODE PLEADING AND PRACTICE. [Pt.l, garded as in time, if not made within the time specified in the removal statute, if the application is made as soon as the cause becomes a removable one.^ On the other hand it has been held that it is imperative that the appli- cation to remove be made when the answer is due,*' and the court possesses no discretionary power to enlarge the time.^ A cause is held not to be removable after the time fixed by the state statute or the rules of the state court for the defendant to answer or plead, even though the time has been extended by stipulation and by order of court,^ although a contrary doctrine is announced in some of the cases.^ If one of several defendants in a suit on a joint cause of action loses his right to remove the action by failing to make the application in time, the right is lost as to all.^° The objection that the right of removal from the state court was not asserted within the time required by the removal act, is an objection which may p. R. Co. V. Cox, 145 U. S. 593, 36 L. Ed. 829, 12 Sup. Ct. Rep. 905; Central Trust Co. v. McGeorge, 151 U. S. 129, 38 L. Ed. 98, 14 Sup. Ct. Rep. 286; Martin's Admr. v, Baltimore & O. R. Co., 151 U. S. 673, 14 Sup. Ct. Rep. 533, sub nom. Gerling Admr. of Martin v. Baltimore & O. R. Co., 38 L. Ed. 311; Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 42 L. Ed. 673, 18 Sup. Ct. Rep. 264. 5 Remington v. Central Pac. R. Co., 138 U. S. 95, 49 L. Ed. 959, 25 Sup. Ct. Rep. 577. See Bryson V. Southern R. Co., 141 N. C. 595, 54 S. E. 434. 6 Kansas City, Ft. S. & M. R. Co. V. Daughtry, 138 U. S. 298, 34 L. Ed. 963, 11 Sup. Ct. Rep. 306. 7 Dougherty v. Western Union Tel. Co., 61 Fed. 138. 8 Spangler v, Atchison, T. & S. F. R. Co., 42 Fed. 305; Ruby Canyon Gold Min. Co, v. Hunter, 60 Fed. 305. Stipulations between the parties allowing defendant further time to answer, are ineffectual to extend the time within which to file the petition for removal. — Martin v. Carter, 48 Fed. 596; Rock Island Nat. Bank v. Keator Lumber Co., 51 Fed. 897; Schipper v. Consumer Cordage Co., 72 Fed. 803. Compare: All mark v. Platte Steamship Co., 76 Fed. 614. 9 Roycroft v. Green, 49 Fed. 177; People's Bank of Greenville v. Aetna Ins. Co., 53 Fed. 161; Turner V. Illinois Cent. R. Co., 55 Fed. 689; Price v. Lehigh Valley R. Co., 65 Fed. 825. 10 Rogers V. Van Nortwick, 45 Fed. 513; Fletcher v. Hamlet, 116 U. S. 408, 29 L. Ed. 679, 6 Sup. Ct. Rep. 426, 572 I ell. XVIII.] PREJUDICE OR LOCAL INFLUENCE. § 44-i bo waived ;" and, altbough the petition for removal is not filed until after a demurrer is interposed in the state court, if no motion to remand on that ground is made in the district court, the objection is waived, and can not be made on appeal. ^^ § 444. On ground of prejudice or local, influ- ence. When it shall be made to appear in the manner re- quired by statute that a party can not secure a fair and impartial trial in the state court in which the action is brought, because of prejudice or local influence, the cause may be removed to a federal court at any time before the trial or final hearing thereof is actually held.^ Among the reasons for this liberal rule peculiar to this particular cause of removal are (1) the fact that the prejudice may not exist at the beginning of the action, or (2) the hostile local influence may not become known or developed at an earlier stage of the proceeding than at the time when the application for removal is made.- Where there has been a trial by jury in the state court, the judgment on the 11 See authorities, footnote 4, Hearing b e f o r e a commission this section. appointed under a state statute is 12 Newman v. Schwerin, 61 Fed. not a "trial" within the meaning 865 of the removal statute. — Gurnee v, 1 Federal Judicial Code, § 28, 5 „ • , , tt ,. „„^ r^ ^ o* * A o^ J .^ c- Brunswick, 1 Hughes 270, 1 Va. Fed. Stats. Ann., 2d ed., p. 16. See: ^ ^ „^. ^ .. . , . r^ V. OT L. J. 301, Fed. Gas. No. 5S72; Gontmental Ins. Go. v. Casey, 27 ' Gratt. (Va.) 216; Lookout Mt. R. ^""^'' ''• ^'^^^^^ ^^^^^y, 14 Fed. Co. V. Houston, 32 Fed. 711; Davis "^' Mississippi & Rum River V. Chicago & N. W. R. Co., 46 ^°°"^ <^°- ^- Patterson. 98 U. S. Fed. 307; Detroit, City of, v. De- ^^^' ^5 L. Ed. 206; Hess v. Rey- troit City R. Co., 54 Fed. 1; Fisk ^"l^^' ^^^ U. S. 73. 28 L. Ed. 927. v. Henarie, 142 U. S. 459, 35 L. Ed. ^ ^"P- ^^- ^^P- ^^^ Delaware 1080, 12 Sup. Ct. Rep. 207. levers- <^°""ty v. Diebold Safe & Lock ing 32 Fed. 417, 35 Fed. 230. ^°' ^^^ ^- ^- ^'^^' ^^ ■- ^^' ^^^' See, also, note, 11 L. R. A. ."0. ^^ ^''P- ^^- ^^P- 399. Before final hearing and deter- Compare: Drainage District No. mination of the cause, only, can 19 v. Chicago, M. & St. P. R. Co., removal be had on the ground of 198 Fed. 253. prejudice or local influence. — 2 Hess v. Reynolds, 113 IT. S. Stevenson v. Williams. 86 U. S. 73. 78 L. Ed. 927, 5 Sup. Ct. Rep. (19 Wall.) 572, 22 L. Ed. 162. 377. 573 §445 CODE PLEADING AND PKACTICE. [I't. r, verdict has been set aside and a new trial granted, the canse may be thereafter, and before a second trial is had, removed to a federal court, for "local prejudice," bo- cause the judgment of the state court, having been va- cated and set aside, the trial which was had in the state court becomes a nullity in so far as the removal of the cause is concerned.^ § 445. From what court. The Judicial Code regulat- ing the removal of causes for any one of the reasons or grounds therein provided^ applies to courts of record only, and does not include justices' courts and like courts of inferior jurisdiction, for the reason that all such causes are appealable to state courts of record in which they are triable de novo,- although the contrary is held.^ And it has been said causes are removable under the removal act from courts of original jurisdiction, only, and not from appellate courts.* 3 Home Life Ins. Co. v. Dunn, 86 U. S. (19 Wall.) 214, 22 L. Ed, 68; Baltimore & O. R. Co. v. Bates, 119 U. S. 464, 30 L. Ed. 436, 7 Sup. Ct. Rep. 285; Schraeder Min. & Mfg. Co. V. Packer, 129 U. S. 688, 37 L. Ed. 760, 9 Sup. Ct. Rep. 385. Compare: Fisk v. Henarie, 142 U. S. 459, 35 L. Ed. 1080, 12 Sup. Ct. Rep. 207, reversing 32 Fed. 417, 35 Fed. 230; McDaniel v. Jor- dan, 178 U. S. 229, 44 L. Ed. 1048, 20 Sup. Ct. Rep. 886, but both of these cases, it is to be noted, were decided under the peculiar pro- visions of the statute of March 3, 1887, which provisions are not carried into the Judicial Code. 1 As to grounds for removal of cause, see, post, §§ 447-453. 2 Rathbone Oil Tract Co. v. Ranch, 5 W. Va. 79; New York, I. & P. Co. V. Milburn Gin & Ma- chine Co., 35 Fed. 225, 226; dis- cussed but not decided. Special tribunal, as commis- sioners of appraisement, and the like, are not included.— See, ante, § 444, footnote 1. 3 Ward V. Matthews, 2 Blatchf. 370, Fed. Cas. No. 17955; Katz v. Herschel Mfg. Co., 150 Fed. 684. 4 Williams v. Lowe, 4 Neb. 382; affirmed, 94 U. S. 650, 24 L. Ed. 216; Berry v. Irick, 23 Gratt. (Va.) 484, 12 Am. Rep. 539; Craigle V. McArthur, 4 Dill. 474, 4 Cent. L. J. 237, 15 Alb. L. J. 121, Fed. Cas. No. 3341; McCallon v. Water- man, 1 Flipp. 651, Fed. Cas. No. 8675; Katz v. Herschel Mfg. Co., 150 Fed. 684; Stevenson v. Wil- liams, 86 U. S. (19 Wall.) 572, 22 L. Ed. 162; Vannevar v. Bryant, 88 U. S. (21 Wall.) 41, 43, 22 L. Ed. 476, 477; Fashnacht v. Frank. 90 U. S. (23 Wall.) 416, 419, 23 L. Ed. 81, 82; Lowe v. Williams, 94 U. S. 650, 652, 24 L, Ed. 216, affirming 4 Neb. 382. See, also, note, 12 Am. Rep. 545. 74 Cll. XVIII.] GROUNDS OF REMOVAL. §§ 44G, 447 § 446. To WHAT COURT. A cause can be removed from a state court to the federal district court of the district in which the state in a court of which the suit is pending is located, without regard to where the action originated;^ but where the ground of removal is that a federal ques- tion is involved- in controversies between parties resid- ing in different states, the parties can confer jurisdiction upon a particular federal court, although neither the plaintiff nor the defendant reside within the territorial jurisdiction of that court.^ § 447. Grounds of removal — In general. We have already seen that the grounds of removal of a cause from a state court to a federal court is wholly statutory, and that the express words of the removal statute cover only a very small part of the cases arising in actual practice ; those cases not provided for in express terms of the stat- ute are included by the courts by construction,^ with the result that a complicated and technical system has grown up. The main classes of cases which are removable under the express terais of the present federal Judicial Code and by the statutory construction of the courts are those involving : 1. Diversity of citizenship; 2. Separable controversy; 3. Prejudice or local influence; 4. Denial of civil rights ; 1 Federal Judicial Code, § 29, 5 parte, 85 U. S. (18 Wall.) 417, 21 Fed. Stats. Ann., 2d ed., p. 235. L. Ed. 904; Hess v. Reynolds, 113 See: Stewart v. Cybur Lumber U. S. 73, 28 L. Ed. 927, 5 Sup. Ct. Co., Ill Miss. 844, 72 So. 276; -^^^P- ^"'^• Knowlton v. Congress & Empire " ^^ *° federal q u e s 1 1 o n s in- Spring Co., 13 Blatchf. 170, Fed. ''^^^^^ ^' -''"""^ °f removal, see. post, § 452. Cas. No. 7902; Cobb. V. Globe Mut. 'rur.^ ^ u • ,, „ 3 Hubbard v. Chicago, M. & L. Ins. Co.. 3 Hughes 452, Fed. g^ p ^ ^^^ ^^g p^^ ^^^ ^^^. Cas. No. 2921; St. John v. United western Land Co. v. Butte & Bos- States Fidelity & Guaranty Co., ton Min. Co.. 210 U. S. 368, 52 213 Fed. 685; St. John v. Taintor, l. Ed. 1101, 28 Sup. Ct. Rep. 720. 220 Fed. 458; State Ins. Co., E.x i See, ante, § 438. 575 § 448 CODE PLEADING AND PRACTICE. [Ft. I, 5. Actions in which a federal question is involved ; and 6. Actions against public officers, etc. A71 outline treatment of each of these classes of cases follows, without any effort to be exhaustive of all the points raised and decided in connection with these classes of cases removable. Such a treatment would require a volume of more than a thousand pages. We must content ourselves with a reference to the most recent, most schol- arly and most exhaustive treatment of each and all of these classes of cases, and of other incidental matter con- nected therewith.- § 448. 1. Diversity op citizenship. We have al- ready seen that the right to remove a case from a state to a federal court is restricted by the federal Judicial Code to the defendant or the defendants in the cause. ^ The phiintiff, having chosen his forum, no matter where, must remain in that forum, and he can not remove at all. But any defendant sued, not in a court of his o^\ti state, but in the state court of the plaintiff, may always remove, by compliance with the procedure devised for that pui*pose.- Defendants sued in a court of their own state by citizens of another state have no right of removal;^ but any de- fendant who is a citizen of another state may remove the cause, notwithstanding his codefendants are citizens of tlie state in which the action is brought,* where the con- 2 See 5 Fed. Stats. Ann., 2d ed., 3 Martin v. Snyder, 146 U. S. pp. 21-235. 663, 36 L. Ed. 602, 13 Sup. Ct. Rep. 1 See ante §442 '^^^- ^^^- Chappell v. Chappell, 86 „ _ , „, Md. 544, 39 Atl. 984; Gregory v. 1; Gavin v. Vance, 32 Fed. 84. -,c r> r< a ^» 01 tt c- Ar.r^ Pike, 15 C. C. A. 42, 21 U. S. App. "Residence" is not synonymous q^S, 67 Fed. 847; Hunter v. Con- with "citizenship" within the re- rad, 85 Fed. 806; Fife v. Whittell, moval statute. — Cameron v. 102 Fed. 539; Parkinson v. Barr, Hodges, 127 U. S. 322, 32 L. Ed. 105 Fed. 84; Martin v. Baltimore 132, 8 Sup. Ct. Rep. 1154. See: & O. R. Co., 151 U. S. 677, 38 L. Ed. Dannahy v. National Bank, 12 313, 14 Sup. Ct. Rep. 533. C. C. A. 76, 24 U. S. App. 351, 64 4 Hall v. Chattanooga Agricul- Fed. 149; Blair v. Silver Peak tural Works, 48 Fed. 599; Reeves Mines, 93 Fed. 335. v. Corning, 51 Fed. 774. 57G L'h. XVIII.] DIVERSITY OF CITIZENSHIP. § 448 troversy is a separable one." Nor is it necessary to entitle a defendant to remove that the plaintiffs should all ho citizens of the state where the action is brouglit.*' Municipal as well as private corporations are treated as citizens of the state under whose laws they are org^anizod or created, for the purpose of removal of causes.'^ The citizensliip of a corporation within the meaning of the Judicial Code is fixed in the state granting its charter, although it may be organized for the purpose of doing business chiefly in other states,^ for the legal presumption is that its members are citizens of the state in which, alone, the corporate body has a legal existence, and a suit against such corporation in its corporate name is pre- sumed to be a suit against citizens of the state which cre- ated the corporation ; and no averments or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States.^ The citizenship of parties which determines the right to remove a cause is that of the parties as persons, and not an official citizenship, acquired in a representative capacity.^** •'•As to separable controversy, 314, 14 L. Ed. 953; Ohio & M. R. see, post, § 449. Co. v. Wheeler, 66 U. S. (1 Black) Alley V. Hines (Edward) Lum- 286, 296, 17 L. Ed. 130, 133; Cowles ber Co., 64 Fed. 903. But see v. Mercer County, 74 U. S. (7 Wall.) West V. Aurora, 73 U. S. (6 Wall.) 118, 121, 19 L, Ed. 86, 87; Paul v. 139, 18 L. Ed. 819. Virginia, 75 U. S. (8 Wall.) 168, 7 Zambrino v. Galveston, H. & 178, 19 L. Ed. 357, 359; Baltimore S. R. Co., 38 Fed. 449, 451; Yaleta, & O. R. Co. v. Harris, 79 U. S. City of, V. Cauda, 67 Fed. 6. (12 Wall.) 65, 81, 82, 20 L. Ed. 8 Baughman v. National Water 354, 358; Muller v. Dows, 94 U. S. Works Co., 46 Fed. 4. See: 444, 445, 24 L. Ed. 207; Baltimore Stephens v. St. Louis & S. F. R. & O. R. Co. v. Koontz, 104 U. S. Co. 47 Fed. 530; Overman Wheel 5, 12, 26 L. Ed. 643, 645; National Co. V. Pope Mfg. Co., 46 Fed. 577. Steamship Co. v. T u g m a n, 106 oZambrino v. Galveston, H. & U. S. 120, 27 L. Ed. 87, 1 Sup. Ct. S. R. Co., 38 Fed. 449, 451. See: Rep. 58. Louisville, C. & C. R. Co. v. Lit- As to citizenship and residence son, 43 U. S. (2 How.) 497, 11 of corporation, see note, 14 L. R. A. L. Ed. 353; Marshall v. Baltimore 184. & O. R. Co., 57 U. S. (16 How.) lo Wilson v. Smith, 66 Fed. 81; 1 Code PI. and Pr.— 37 577 § 449 CODE PLEADESTG AND PRACTICE. [Pt. I, Suit by alien plaintiffs against corporation defendants not chartered by the state in which suit is brouglit is removable by such defendants. ^^ § 449. 2. Separable controversy. The federal Judicial Code specifically provides that where there are resident and nonresident defendants, and a nonresident defendant alleges prejudice or local influence preventing him from having a fair and impartial trial in the state court in which the action is brought, if it is made to ap- pear that the suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and no party to the suit will be prejudiced by such separation, the dis- trict court may direct the suit to be remanded as to such other defendants,^ and may proceed with the trial as to such nonresident defendant. But a defendant can not remove from a state to a federal court a separable con- troversy between the plaintiff and himself, unless he is a nonresident of the state where the suit is brought.^ Whether there is a separable controversy warranting a removal is to be determined by the condition of the record in the state court at the time of filing the petition for removal, unless it is alleged that defendants wrong- fully joined for the purpose of preventing a removal.^ There are no separable controversies within the meaning of the statute unless the case as made by the complaint embraces controversies which are separate. The cause of action is not made separable because one defendant sets Amory v. Amory, 95 U, S. 186, 24 Dicker v. Southern R. Co., 189 L. Ed. 428. Fed. 224. 11 Zambrino v. Galveston, H. & i Federal Judicial Code, § 28, first S. R. Co., 38 Fed. 449, 451; Sher- proviso, 5 Fed. Stats. Ann., 2d ed., wood V. Newport News & M. Val. p. 16. Co., 55 Fed. 1; Iowa Lillooet Gold 2 Thurber v. Miller, 67 Fed. 372. Min. Co. V. Bliss, 144 Fed. 446. 3 See: Hazard v. Robinson, 21 Alien plaintiff presumed to have Fed. 193; Louisville & N. R. Co. v. no choice as to district court in Wangelin. 132 U. S. 599, 33 L. Ed. which his suit must be brought. — 474, 10 Sup. Ct. Rep. 203. 578 Ch. XVIII.] SEPARABLE CONTROVERSY. § 449 up a separate defense peculiar to himself, wliich may defeat the entire cause of action.* The right to remove a separate controversy is now restricted to citizens of dif- ferent states, and does not extend to aliens,^ and an un- naturalized member of an Indian tribe can not remove a suit to the federal court, unless it affirmatively appears upon the face of the complaint or declaration that a fed- eral question is necessarily involved.® Joinder of causes of action for a joint liability, as in tort against a foreign railroad corporation and certain of its resident employees, where such joinder is in good faith, will prevent the cause from being removed -^ but a fraudulent joinder of a resident with a nonresident de- fendant for the purpose of defeating a removal to a fed- eral court will not be allowed to prevail against the right of removal ; but the f raudulentness of the joinder can not be successfully maintained by the party seeking the re- moval, when by the well-settled law of the state in which the action is brought, and in which the cause of action arose, the defendants are jointly liable to the plaintiff.^ Separate defenses set up by the defendants in their answers do not constitute a separable controversy,® be- 4 See: Arrowsmith v. Nashville U. S. 275, 29 L. Ed. 899, 6 Sup. Ct. & D. R. Co, 57 Fed. 165; Jarnecke Rep. 730; Plymouth Consol. Gold Ditch, In re, 69 Fed. 161; Watson Min. Co. v. Amador & S. Canal Co., V. Asbury Park & B. R. Co., 73 118 U. S. 264, 30 L. Ed. 232, 6 Sup. Fed. 1; Rosenthal v. Coates, 148 Ct. Rep. 1034; Thorn Wire Hedge Cal. 142, 37 L. Ed. 399, 13 Sup. Ct. Co. v. Fuller, 122 U. S. 535, 30 Rep. 576. L. Ed. 1243, 7 Sup. Ct. Rep. 1265: s Woodrum v. Clay, 33 Fed. 897. Southern R. Co. v. Miller, 217 U. S. Rut see Insurance Co. of North 209, 54 L. Ed. 732, 30 Sup. Ct. Rep. America V. Delaware Mut. Ins. Co., 450; Chicago, B. & Q. R. Co. v. 50 Fed. 243. Willard, 220 U. S. 413, 55 L. Ed. 6 Paul V. Chilsoquie, 70 Fed. 401; 521, 31 Sup. Ct. Rep. 460. Tennessee v. Union & Planters' s Chicago, B. «& Q. R. Co. v. Wil- Rank, 152 U. S. 454, 38 L. Ed. 511, lard, 220 U. S. 413, 55 L. Ed. 521, 14 Sup. Ct. Rep. 654. 31 Sup. Ct. Rep. 460. 7 Pirie v. Tvedt, 115 U. S. 41, 9 Little v. Giles, 118 U. S. 596, 29 L. Ed. 331, 5 Sup. Ct. Rep. 1034, 601, 30 L. Ed. 269, 271, 7 Sup. Ct 1161; Sloane v. Anderson, 117 Rep. 32. 579 f 450 CODE PLEADING AND PRACTICE. [Pt. L cause the defendants can not make an action several which the plaintiff has made joint/" whether the action be ex contractu or ex delicto. §450. 3. Prejudice or local influence. The fed- eral Judicial Code, providing for the removal of a cause from the state court to a federal district court in those cases in which, because of prejudice or local influence, the party seeking removal can not have a fair and impartial^ trial, may not, it is thought, limit the right to the defend- ant only,- as was the case formerly.^ Any one of several parties defendant may remove the cause on this ground upon a proper showing;^ but one of several defendants, being a citizen of the same state as the plaintiff, can not remove a cause upon the ground of prejudice and local 10 Mitchell v. Smale, 140 U. S. 406, 409, 35 L. Ed. 442, 443, 11 Sup. Ct. Rep. 819. See discussion and cases cited, 5 Fed. Stats. Ann., 2d ed., p. 133. 1 Judicial Code, § 28, 5 Fed. Stats. Ann., 2d ed., p. 16. 2 Id., the provision being: "At any time before the trial of any suit which is now pending in any district court, or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local in- fluence, he was unable to obtain justice in said state court," etc. See, however, the annotations and authorities cited, 5 Fed. Stats. Ann., 2d ed., pp. 186 et seq. 3 Turlock V. Webster County, 40 Fed. 706; Campbell v. Collins, 62 Fed. 849; Flsk v, Henarie, 142 U. S. 459, 35 L. Ed. 1080, 12 Sup. Ct. Rep. 207. 4 Jackson v. Pearson, 60 Fed. 113. Plaintiffs not all residents of state in which suit brought, but all jointly interested In the cause of action against a nonresident de- fendant applying for removal on the ground of local prejudice, it was held that under Act March 3, 1887, 24 Stats. & L. 552, the cause could not be removed. — Gann v. Northeastern R. Co., 57 Fed. 417, following Young v. Ewart, 132 U. S 267, 33 L. Ed. 352, 10 Sup. Ct. Rep. 75, construing U. S. Rev. Stats, § 639. Where removed by plaintiff the district court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, a n d,. unless i t shall appear to the satisfaction of said court that said party will not be able to obtain justice in said state court, it shall cause the same to be remanded thereto. — Judicial Code, § 28, 5 Fed. Stats. Ann., 2d ed., p. 17. 580 ill. XVIII.] TREJUDICE AND INFLLEXCE, §450 influence between himself and other defendants.^ The oljject of allowing the removal of a controversy into the district court of the United States from a state court is to prevent any undue advantage being gained by the op- posite party by reason of prejudice or local influence ; and unless such prejudice or local influence in favor of the opposing party is alleged and proved, he can not be pre- vented from prosecuting his suit against all the defend- ants in the court in wliich he originally brought it.*' Under section six hundred and thirty-nine of the federal stat- utes" it has been held that a cause could be removed on the ground of local prejudice, only where all the parties to the suit on one side were citizens of a different state from those on the other side.^ And a similar construction has been given to the act of 1887-1888,^ and will doubtless be extended in the Judicial Code. But the right of re- moval extends not only to cases where such prejudice would affect the jury, but also to cases in which the deci- sions of the judge as to questions of law or fact may be affected thereby.^** A cause to which an alien is a party is not removable under the *4ocal prejudice" clause of the Judicial Code.^^ And the record upon removal for local prejudice must show that the amount in controversy exceeds three thousand dollars, exclusive of interest and 5 Hanrick v. Hanrick, 153 U. S. See: Wilder v. Virginia, T. & C. 192, 21 L. Ed. 350, 14 Sup. Ct. Rep. Steel & Iron Co., 46 Fed. 676; 835. Detroit, City of, v. Detroit City R. 6 Id. See Herndon v. Southern ^°- ^^ ^^'^- ^' Jackson v. Pearson, R. Co., 76 Fed. 398. 60 Fed. 113. 10 Detroit, City of, v. Detroit T U. S. Rev. Stats.. § 639, 4 Fed. ^ity R. Co., 54 Fed. 1, following Stats. Ann., 1st ed., p. 257. ^^^^.^^^^ ^ Seligman, 107 U. S. 33, 8 Young V. Ewart, 132 U. S. 267, 27 L. Ed. 359, 2 Sup. Ct. Rep. 10. 33 L. Ed. 352, 10 Sup. Ct. Rep. 75; n gee: Judicial Code, § 28; Cohn Rosenthal v. Coates, 148 U. S. 142, y Louisville, N. O. & T. R. Co., 37 L. Ed. 399, 13 Sup. Ct. Rep. 576. 39 pe6. 227. See Adelbert College 9 Thompson v. East Tennessee, of Western Reserve University v. v. & G. R. Co., 38 Fed. 673; Pike Toledo, W. & W. R. Co., 47 Fed. v. Floyd, 42 Fed. 247; Gann v. 836. Northeastern R. Co., 57 Fed. 417. See, also, ante, § 449, note 5. 581 §451 CODE PLEADING AND PRACTICE. [Pt. I, costs. ^2 ^ petition for the removal of a cause on the ground of local prejudice should state the facts relied on as showing prejudice, and should be sworn to by at least one of the petitioners, or by some agent or attorney au- thorized by them.^^ It is not sufficient merely to allege in the petition and affidavit that petitioner ''has reason to believe, and does believe," that from prejudice and local influence he will be unable to obtain justice in the state courts, but the existence of prejudice and local influ- ence must be alleged as a matter of fact.^^ §451. 4. Denial of civil eights. Where anv ci\dl suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or can not enforce in the courts of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law^ providing for the equal civil rights of the citizens of the United States, or of all persons within the jurisdiction of the 12 Judicial Code, § 24, 4 Fed. Stats. Ann., 2d ed., p. 862; Todd V. Cleveland & M. V. R. Co., 65 Fed. 145. See: Bierbower v. Mil- ler, 30 Neb. 161, 46 N. W. 431, 47 N. W. 1; Oleson v. Northern Pac. R. Co., 44 Fed. 1; La Montagne v. Harvey (T. W.) Lumber Co., 44 Fed. 645; Stone v. South Carolina, 117 U. S. 430, 29 L. Ed. 962, 6 Sup. Ct. Rep. 799 ; Stevens v. Nichols, 130 U. S. 230, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518; Crehore v. Ohio & M. R. Co., 131 U. S. 240, 33 L. Ed. 144, 9 Sup. Ct. Rep. 692; Pennsylvania Co., In re, 137 U. S. 451, 34 L. Ed. 738, 11 Sup. Ct. Rep. 141. As to amount in controversy as affecting right to removal, see, post, § 455. 13 Hall v. Chattanooga Agricul- tural Works, 48 Fed. 599. "When it shall be made to ap- 5 pear to the said district court," is the language of the provision of the act of 1877 as corrected by the act of 1888, under which the above decision was made. The provision of the Judicial Code is identical, and the interpretation will pre- sumably be the same. The act does not define how the matter shall be made to appear; the Supreme Court of the United States has said that shall be by "an affidavit of a creditable person, and a statement of t h e facts in such affidavit which suf- ficiently evince the truth of the allegation." — Pennsylvania Co., In re, 137 U. S. 451, 34 L. Ed. 738, 11 Sup. Ct. Rep. 141. 14 Short V. Chicago, M. & St. P; R, Co., 33 Fed. 114; Schwenk V. Strang, 59 Fed. 209; Collins v. Campbell, 62 Fed. 850. 82 Ch. XVIII.] DENIAL OF CIVIL RIGHTS. § 451 United States, upon due application and a proper show- ing the civil suit or criminal prosecution may be trans- ferred from the state court to the federal district court of the district in which the state in which such suit or prosecution is pending is situated.^ This is substantially the provision of the federal Revised Statutes Ijefore the enactment of the Judicial Code.- Over all suits concern- ing civil rights the federal district courts have original jurisdiction.^ This provision for removal of a cause for denial of civil rights has been said to refer primarily, if not exclusively to a denial of such rights or an inability to enforce them resulting from the constitution or laws of the state in which the civil suit or criminal prosecution is pending,'* and not to include a criminal misuse of a state law, or a denial by a subordinate state officer of a right which the state law accords,^ or the nonrecognition by the courts of such states of a pardon for the alleged crime pleaded in bar of a criminal prosecution;^ but it does in- clude a case of the criminal prosecution of a negro citizen in which other negro citizens are excluded from the grand and petit jury on account of their race and color,^ but not a case in which a motion by a negro citizen that a venirie be so modified that some portion of the jury will be composed of citizens of his own race f includes a denial 1 Federal Judicial Code, § 31, 5 565, 40 L. Ed. 1075, 16 Sup. Ct. Fed. Stats. Ann., 2d ed., p. 376. Rep. 904. 2 XJ. S. Rev. Stats,, § 641, 4 Fed. 6 Kentucky v. Powers, 201 U. S. Stats. Ann., 1st ed., p. 258. 1, 50 L. Ed. 633, 26 Sup. Ct. Rep. 3 Federal Judicial Code, § 24, par. 387. 12, 4 Fed. Stats. Ann., 2d ed., p. 7 Strauder v. West Virginia, 100 840. U. S. 303, 25 L. Ed. 664. See: Cali- 4 Virginia v. Rivers, 100 U. S. fornia v. Chue Fan, 42 Fed. 865; 313, sub nom. Virginia, In re, 25 Dubuclet v. Louisiana, 103 U. S. L. Ed. 667. 551, 26 L. Ed. 504. ^> Id. 8 Virginia v. Rives, 100 U. S. 313, Jury commissioner or other sub- sub nom. Virginia, In re, 25 L. Ed. ordinate officer excluding negro 667. See: Neal v. Delaware, 103 citizens from jury because of their U. S. 370, 26 L. Ed. 567; Bush v. race, not ground for removal. — ■ Kentucky, 107 U. S. 110, 27 L. Ed. Gibson v. Mississippi, 162 U. S. 354, 1 Sup. Ct. Rep. 625; Gibson 583 §452 CODE PLEADING AND PRACTICE. [Pt. I, of the electoral franchise on account of race, color, or previous condition of servitude,^ and the like. H52. 5. Actions in which federal, question is INVOLVED. In all those cases in which a suit of a civil nature, at law or in equity, involves a federal question, it may be removed ; but a cause is not removable when any doubt exists as to whether a federal question is pre- sented.^ Under the Judicial Code, as well as under the act of 1887-188S, a cause can not be removed as involving a federal question, unless that fact appears by the plain- tiff's OAvn statement of his case,^ or by the answer or plea of the defendant;^ although it has been said that a defi- ciency in this respect in the complaint or declaration can not be supplied by allegations in the petition for removal, or in subsequent pleadings in the case ;* but these variant lioldings were due to the particular wording of the par- ticular removal act under which the application was made. V. Mississippi, 162 TJ. S. 565, 40 L. Ed. 1075, 16 Sup. Ct. Rep. 904. 9 Dubuclet V. Louisiana, 103 U. S. 550, 26 L. Ed. 504. 1 Federal Judicial Code, § 28, 5 Fed. Stats. Ann., 2d ed., p. 16; Blue Bird Min. Co. v. Larzey, 49 Fed. 289, 292. See annotations and authorities 5 Fed. Stats. Ann., 2d ed., pp. 77 et seq. 2 Caples V. Texas & P. R. Co., 67 Fed. 9; Haggin v. Lewis, 66 Fed. 199; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 460, 38 L. Ed. 511, 14 Sup. Ct. Rep. 654, reversing 53 Fed. 735; Chappell v. Wordsworth, 155 U. S. 102, 39 L. Ed. 85, 15 Sup. Ct. Rep. 34; Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 487, 15 Sup.- Ct. Rep. 192, sub nom. Postal Tel. Cable Co. V. United States, 39 L. Ed. 231; East Lake Land Co. v. Brown. 155 U. S. 488, 489, 39 L. Ed. 85, 15 Sup. Ct. Rep. 357. 3 See: Caples v. Texas & P. R. Co., 67 Fed. 9; New Orleans, M. & T. R. Co. V. Mississippi, 102 U. S. 135, 26 L. Ed. 96; Metcalf v. Watertown, 128 U. S. 586, 589, 32 L. Ed. 543, 544, 9 Sup. Ct. Rep. 173; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 460, 38 L. Ed. 511, 14 Sup. Ct. Rep. 654, reversing 53 Fed. 735. 4 See: Florida v. Phosphate Co., 74 Fed. 578; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. Ed. 511, 14 Sup. Ct. Rep. 654, reversing 53 Fed. 735; Postal Tel. Cable Co. v, Alabama, 155 U. S. 482, 487, 15 Sup. Ct. Rep. 192, sub nom. Postal Tel. Cable Co. v. United States, 39 L. Ed. 231; East Lake Land Co. v. Brown, 155 U. S. 488, 489, 39 L. Ed. 85, 15 Sup. Ct. Rep. 357. 584 Ch. XVIII.] FEDERAL QUESTION INVOLVED. § 452 These acts all being merged in the Judicial Code, these re- quirements are no longer applicable. A petition which fails to allege any facts from which the court may see that a federal question does actually arise, is insufficient;^ merely alleging a conclusion, or the opinion of the appli- cant, does not comply with the removal act.^ Whenever it is sought to remove a suit on the ground that it is one arising under the laws of the United States, it must ap- pear from the petition for removal and pleadings that there is a question actually involved in the suit depending for its determination upon a correct construction of a law of the United States, and the facts averred in the ^)lead- ings or in the petition must show what the question is, and how it will arise. '^ Corporations of the United States, created by and organized under acts of Congress, are en- titled to remove to the federal courts suits against them in the state courts, as ''arising under the laws of the United States";^ but it has been said that this rule does not apply to corporations organized under the laws of a territory, and upon which, after their organization, cer- tain rights and privileges are conferred by act of con- gress.® Foreign corporation jointly sued with a local defendant, the corporation being chartered under an act of congress, 6 See: Fitzgerald v. Missouri Pac. R. Co., 45 Fed. 812; Los An geles Farming & Milling Co. v, Hoff, 48 Fed. 340. c Trafton v. Nougues, 4 Sawy 183, 4 Cent. L. J. 228, Fed. Cas No. 14134. " Walker v. Richards, 55 Fed 129. See State v. Southern Pac Pacific Railroad Removal Cases, 29 L. Ed. 319, reversing 31 Kan. 388, 2 Pac. 605. 59 Tex. 349, 62 Tex. 227, 3 McCr. 578, 16 Fed. 292; Butler v. National Home for Disabled Soldiers, 144 U. S. 64, 36 L. Ed. 346, 12 Sup. Ct. Rep. 581; Knights of Pythias v. Kalin- ski, 163 U. S. 289, 41 L. Ed. 163, 16 Sup. Ct. Rep. 1047. Co., 23 Ore. 424, 31 Pac. 960. o Conlon v. Oregon Short-Line & •s Supreme Lodge Knights of U. N. R. Co., 21 Ore. 462, 28 Pac. Pythias v. Hill, 76 Fed. 468; Union 501; Conlon v. Oregon Short-Line Pac. R. Co. V. Myers, 115 U. S. 1, & U. N. R. Co., 23 Ore. 499, 32 5 Sup. Ct Rep. 113, sub n o m. Pac. 397. 585 § 453 CODE PLEADING AND PRACTICE. [Pt, I, the suit is one ''arising under the laws of the United States, ' ' and removable to the federal district court of the proper district, on petition of both defendants ;^" and an action brought against a federal corporation and its em- ployees, in tort, to establish a joint liability for injuries caused by negligence, is also a suit arising under the laws of the United States and removable.^^ Promissory note the subject-matter of a suit by a per- son claiming to be a bona fide holder for value before maturity, is not a suit ''arising under the laws of the United States" within the meaning of the removal act, because the makers of the note relied for their defense upon the provisions of certain federal statutes, under which the transaction on which the note is based, — Indian allotments, — is prohibited, and for that reason the suit is not removable. ^^ § 453. 6. Actions against public officers, etc. Any civil suit or criminal prosecution, commenced in a state court against any officer, or any person acting under his authority, appointed under and acting by authority of the federal revenue laM^s, on account of any act done imder color of his office or of the law under which he is acting; on an account of any right, title, or authority claimed by such officer or any one acting under him; or by any person holding property or estate derived from any such officer, and the suit affects the validity of any revenue law ; or against any person for an act done while acting for either House of Congress in the discharge of Ms official duty, the suit or prosecution is removable to the proper federal district court,^ regardless of the 10 Texas & P. R. Co. v. Eastin, Sup. Ct. Rep. 423, affirming 20 214 U. S. 153, 53 L. Ed. 946, 29 Okla. 274, 95 Pac. 457. Sup. Ct. Rep. 564. i Federal Judicial Code, § 33. 5 11 Dunn, In re, 212 U. S. 374, 53 Fed. Stats. Ann., 2d ed., p. 380. L. Ed. 558, 29 Sup. Ct. Rep. 299. Siiit to recover money received 12 Williams v. First Nat. Bank, as carrier's charges on imported 216 U. S. 582, 54 L. Ed. 625, 30 goods, removable. — Cleveland, 586 cll. XVIII. ] REMOVAI^ Et^FECT OX PARTIES. § 451 amount involved in sucli suit,- or the citizenship of the parties;^ and such right of removal is not defeated by tlie fact that such defendant officer denies in his answer that the act charged was done/ or that he is cliarged as a wrongdoer.^ Marshal sued in action for damages for seizing goods under attachment from a United States circuit court, the action is one arising under the laws of the United States, and is removable from tlie state court to the federal district court of the proper district.^ Aliens suing civil officers of the United States in the courts of a state other than that in Avhich such officer resides, the action is removable to the federal district court in and for the district in which such officer was served/ § 454. Effect of change in parties after re- moval. After a cause has been properly removed from a state court to a federal district court, the jurisdiction of the state court having been divested and that of the fed- eral court invested, the introduction of new parties can C. & C. R. Co. V. McClung, 119 marshal! is acting under authority U. S. 454, 30 L. Ed. 465, 7 Sup. of that law, and a criminal prose- Ct. Rep. 262. cution for such act is removable. li Wood V. Matthews, 3 Woods ~^ avis v. South Carolina, 107 496, Fed. Cas. No. 5352; Venable U. S. 597, 27 L. Ed. 574, 2 Sup. Ct. V. Richards, 105 U. S. 636, 26 L. Ed. ^^p. 636. 1196. Charge of murder against a rev- 3 Philadelphia, Atlantic & P. Tel. ^"""^ ^^^^^ committed while acting Co. V. The Collector, 72 U. S (5 '° "°® °^ ^"^^ or under color of of- Wal.) 720, sub nom. Philadelphia, ^^^ ^^ removable.-Tennessee v. City of, V. Diehl, 18 L. Ed. 614. ^^^^^' ^^^ U. S. 257. 25 L. Ed. 64S. See Fogg, Ex parte, 38 Tex. Cr. 4 Cleveland, C. & C. R. Co. v, McClung, 119 U. S. 454, 30 L. Ed. 465, 7 Sup. Ct. Rep. 262, affirming 15 Fed. 905. Rep. 589, 40 L. R. A. 215, 44 S. W. 294. 6 Bock V. Perkins, 139 U. S. 628, 35 L. Ed. 314, 11 Sup. Ct. Rep. 677. r.Van Zandt v. Maxwell, 2 as to causes removable, see 5 niatchf. 421, Fed. Cas. No. 16884; Fed. Stats. Ann., 2d ed., p. 583. Tennesee v. Davis, 100 U. S. 257, as to causes not removable, see 2-^ L. Ed. 648. Id., p. 584. Arresting accused in attempting 7 Federal Judicial Code, § 34, 5 to enforce revenue laws, deputy Fed. Stats. Ann., 2d ed., p. 386. 587 § 45'4 CODE PLEADING AND PRACTICE. [Pt. I, not have the effect to divest the federal district court of jurisdiction^ and reinvest jurisdiction in the state court from which the cause was removed.^ An intei-A^enor, or a person who purchases property pendente lite and is made a party, comes into the suit with all the disability of the other parties defendant, as respects the right of removal or of remand of the suit at the time that he comes in.' And when a partnership is sued by service of process upon one of the co-partners and such co-partner's right of removal is lost, a subsequent service upon another co- partner will not give him a right, as to removal, superior to or in addition to that of the co-partner served, whose right has been lost.* And the same is true in respect to the dismissal of parties defendant. Thus, where a resi- dent and a nonresident defendant are joined in an action, and the cause is removed to the federal district court be- cause of diversity of citizenship,^ the subsequent dis- missal of the cause as to such nonresident defendant will not divest the federal district court of jurisdiction; and in such a case, and while the cause is still pending in the state court, but after the time prescribed in which to apply for a removal has passed, the dismissal of the cause as to the resident defendant, over the objection of the plaintiff, will not divest the state court of jurisdiction to hear and determine the cause, or give to the nonresident defendant a renewed right of removal to the federal dis- trict court.^ 1 Stewart v. Dunham, 115 U. S. 4 Fletcher v. Hamlet, 116 U. S. 61, 29 L. Ed. 329, 5 Sup. Ct. Rep. 408, 29 L. Ed. 679, 6 Sup. Ct. Rep. 1163. 426 2 Phelps V. Oaks, 117 U. S. 236. , ^^ ^^ ^.^ ^^ citizenship 29 L. Ed. 888, 6 Sup. Ct. Rep. 714. ^ * , _, ' „, „« T^ J ^s a ground of removal, see, ante, See: Bland v. Fleeman, 29 Fed. S 448 673; Burnham v. First Nat. Bank, * • 3 C. C. A. 489, 10 U. S. App. 485, « Lathrop, H. & S. Co. v. Interior 53 Fed. 166. Construction & Imp. Co., 215 U. S. 3 Jefferson v. Driver, 117 U. S. 246, 54 L. Ed. 177, 30 Sup. Ct. Rep. 272, 29 L. Ed. 897, 6 Sup. Ct. Rep. 76. 729. GS3 ch. xviii.] amount in controversy. § 455 § 455. Amount in controversy as affecting removal. It is especially provided that removal of causes to the fed- eral courts is confined to cases ''of which the district courts of the United States are given original jurisdic- tion,"^ and this applies not only to the nature of the suit or proceeding,- but also as to the amount involved in the controversy. As the minimum amount in controversy of which the federal district courts are given original juris- diction is when the amount exceeds three thousand dol- lars, exclusive of interest and costs, ^ it follows that any suit which does not involve exclusive interest and costs, a sum in excess of three thousand dollars, is not remov- able,^ except in the case of an action, against a public officer,^ or in other cases in which it is especially provided that the cause shall be removable regardless of the amount in controversy.^ But it has been said that a cause in which the amount in controversy between the parties is exactly three thousand dollars, or the minimum amount that must be involved, the suit is not removable.'^ The "amount in controversy" determining a right of removal is the sum of money^ or the damages'* claimed by the 1 Federal Judicial Code, § 28, 5 885 (interstate commerce law in- Fed. Stats. Ann., 2d ed., p. 16. volved). Original jurisdiction in federal 5 See, ante, § 453. district court a prerequisite to re- 6 Law regulating commerce In- moval. — Barker & Bro., H. G., v. volved, under Judicial Code, § 24, Pinkham, 211 Fed. 728; Missouri, par. 8, it has been said cause K. & T. R. Co. of Texas v. Smitli removable regardless of amount (Tex. Civ. App.), 164 S. W^. 885. involved in the controversy. — See: 2 See, ante, § 440. Orr v. Baltimore & O. R. Co., 83 3 Federal Judicial Code, § 24, par. Misc. (N. Y.) 221, 145 N. Y. Supp. 1, 4 Fed. Stats. Ann., 2d ed., p. 839. 378; Missouri, K. & T. R. Co. of 4Hallan v. Tillinghast, 75 Fed. Texas v. Smith (Tex. Civ. App.), 489 (federal question, see, ante, 164 S. W. 885. § 452) ; Casey v. Baker, 211 Fed. 7 Federal Judicial Code, § 24, 4 247; Pennsylvania Co., In re, 137 Fed. Stats. Ann., 2d ed., pp. 838, U. S. 451, 34 L. Ed. 738, 11 Sup. 842; Kaufman v. Remstorm Sons Ct. Rep. 141 (prejudice and local Co., I., 188 Fed. 544. influence, see, ante, § 450) ; Mis- s Kanouse v. Martin, 56 U. S. souri, K. & T. R. Co. of Texas v. (15 How.) 198, 14 L. Ed. 660. Smith (Tex. Civ. App.), 164 S. W. ■.' Gordon v. Longest, 41 U. S. (16 589 § 456 CODE PLEADING AND PRACTICE, [Pt. I, plaintiff in his complaint or declaration, even though the claim of the plaintiff may be incapable of proof, or only a portion of it can be established.^^ Thus, where judg- ments between the parties amounting in the aggregate to more than three thousand dollars, exclusive of interest and costs, are sought to be restrained on the ground of fraud, the action is removable to the federal district court, notwithstanding the fact that no one of the judgments involved is sufficient in amount to give jurisdiction for removal ;^^ but it has been held that claims assigned to the plaintiff by persons whose citizenship does not appear either in plaintiif 's complaint or in the petition for re- moval can not be added to the plaintiff's own claim or demand set out in his complaint in order to confer juris- diction for removal.^^ The demand of the plaintiff must be for a money judgment in the amount conf erring- jurisdiction for removal ; if it is manifest from the com- plaint or declaration that there can be no money judg- ment, — e. g. an action to set aside a divorce,^^ — there can be no removal. ^^ § 456. Procedure to remove — In general,. The pro- cedure for removal, on application of any one entitled to remove a cause from the state court to the federal district Pet.) 97, 10 L. Ed. 900; Kanouse 13 Casewell v. Casewell, 120 111. V. Martin, 41 U. S. (15 How.) 198, 377, 11 N. E. 342. See: Bowman 14 L. Ed. 660; Smith v. Greenliow, y. Bowman, 30 Fed. 849; Barber 109 U. S. 669, 27 L. Ed. 1080, 3 ^ g^rber, 62 U. S. (21 How.) 582, Sup. Ct. Rep. 421; North American ^^g |_ ^^ 226 Transportation & Trading Co. v. ' ' ' ,^ „^ ..r- tt ^ MorriL. 178 U. S. 262. 44 L. Ed. ^^ Kurtz v. Moffitt, 115 U. S. 1061, 20 Sup. Ct. Rep. 869. ^87. 29 L. Ed. 458, 6 Sup. Ct. Rep. 10 Kanouse v. Martin, 56 U. S. 148; Durham v. Seymour. 161 (15 How.) 198, 14 L. Ed. 660. U- S. 235, 40 L. Ed. 682. 16 Sup. 11 Marshall v. Holmes, 141 U. S. Ct. Rep. 452; Perrine v. Slack, 164 589, 35 L. Ed. 870, 12 Sup. Ct. Rep. U. S. 452, 41 L. Ed. 510, 17 Sup. 62. Ct. Rep. 79; De la Ram v. De la 12 North American Transporta- Ram, 201 U. S. 303, 50 L. Ed. 765, tion & Trading Co. v. Morrison, 26 Sup. Ct. Rep. 485; Horn v. 178 U. S. 262, 44 L. Ed. 1061, 20 Mitchell, 243 U. S. 247, 61 L. Ed. Sup. Ct. Rep. 869. 1, 37 Sup. Ct. Rep. 297. 590 eh. XVIII.] PROCEDURE FOR REMOVAL. §456 court for any of the causes or grounds provided,^ is gov- erned entirely by the provisions of the federal Judicial Code,- and consists of (1) a notice of the petition and bond prior to filing, (2) the petition for removal dra^vTi to meet the requirements under the particular cause or ground of removal, (3) the bond for removal, (4) the filing of the petition and the bond in the state court, and (5) entering in the federal district court a certified copy of the record in the state court. ^ Except in those cases in which the ground of removal is prejudice or local influence,* the first four steps in the procedure for re- moval, as above enumerated, must be taken '* before the time the defendant is required by the laws of the state or the rule of the state court in which the suit is brought to answer or plead to the declaration or complaint of the plaintiff."^ This provision is strictly construed,^ and all the provisions of the statute and the various steps above enumerated must be complied with in the order set forth. '^ 1 As to who entitled to remove, see, ante, § 442. 2 § 29, 5 Fed. Stats. Ann., 2d ed., p. 235. 3 Id. 4 See, ante, § 450. Judicial Code, § 29, 5 Fed. Stats. Ann., 2d ed., p. 235. As to time In which defendant is required to plead in the various jurisdictions, see notes and cases, 5 Fed. Stats. Ann., 2d ed., pp. 239- 265. Having regard to the natural meaning of language, and to the history of legislation upon this subject, the only reasonable in- ference is that congress contem- plated that the petition for removal should be filed in the state «ourt as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all his de- fenses should be tried and de- termined in the district court of the United States.— Martin, Admr. V. Baltimore & O. R. Co., 151 U. S. 673, 687, 38 L. Ed. 311, 316, 14 Sup. Ct. Rep. 633, 638. 6 Daugherty v. Western Union Tel. Co., 61 Fed. 183; Higson v. North River Ins. Co., 184 Fed. 165. 7 See, among other cases. Mid- land Valley R. Co. v. Hoffman Coal Co., 91 Ark. 180, 120 S. W. 380; Wilson V. Big Joe Black Coal Co., 135 Iowa 531, 14 Ann. Cas. 266, 113 N. W. 348; Cincinnati, N. O. & T. P. R. Co. V. Evans, 129 Ky. 152, 110 S. W. 844; Lilienthal v. Carpenter, 148 Ky. 50, 146 S. W. 2; Chicago, B. & Q. R. Co. v. Little Tarkio Drainage Dist., 237 Mo. 86, 139 S. W. 572; Higson v. North River Ins. Co., 153 N. C. 35, 68 S. E. 920; Manley v. Onley, 32 Fed. 591 § 456 CODE PLEADING AND PRACTICE. [Pt. I, A mere conditional application for a removal of a case is not sufficient f and a journal entry in the federal district court which is simply a finding of that court that the ap- plication for removal is sufficient to entitle the applicant to a removal does not constitute a removal, or oust the state court of jurisdiction.'^ A removal being applied for by a defendant who is described in another proceeding as residing in a named state will not prevent him from slio\\dng that he resides in another.^'' ''At any time be- fore" defendant is required to answer or plead, the proceeding for removal may be inaugurated under the Judicial Code;^^ and it has been held that an affidavit required, — e. g. on ground of prejudice or local influ- ence,^- — made eleven days before the suit was brought, is as effective for the removal of the case, within the purview of the statute, as if made after the suit was brought, where it sufficiently identifies the suit actually brought.^^ The objection of multifariousness or mis- joinder is not available to defeat the right of removal;^"* that objection must be taken by demurrer or answer.^'^ 708; Page v. Day, 74 Fed. 977; stipulation or order of court, see Gregory v. Boston Safe-Deposit & note, 14 Ann. Gas. 268. T Co 88 Fed. 3; Oliver v. Iowa « Manning v. Amy, 140 U. S. 137, Cent. R. Co., 102 Fed. 37; Key v. 35 L. Ed. 386, 11 Sup. Ct. Rep. 757. ,^r . ^^ J. ^ r^ 1 n>^ ooT ^ Pennsylvania C o. v. Bender, Western Kentucky Coal Co.. 237 ^^^ ^ ^ ^^ ^_ ^^ ^^^^ ^^ Fed. 258; Martin. Admr. v. Bal- ^^^ ^^ ^^^ ^^^ timore & O. R. Co., 151 U. S. 673, :o Reynolds v. Adden, 136 U. S. 687, 38 L. Ed. 311, 316, 14 Sup. Ct. 343^ 34 l. Ed. 360, 10 Sup. Ct. Rep. Rep. 633, 638; Goldy v. Morning §43 News, 156 U. S. 518, 524, 39 L. Ed. n § 29, 5 Fed. Stats. Ann.. 2d ed.. 517, 519, 15 Sup. Ct. Rep. 559; p, 235. Wilcox & Gibbs Sewing-Macbine 12 See, ante, § 450. Co. v. Follett, 2 Flip. 263, Fed. Cas. 13 Canal & C. Street R. Co. v. No. 17643; Wabash R. Co. v. Brow, jjart, 144 U. S. 654, 29 L. Ed. 226, 164 U. S. 271, 277, 41 L. Ed. 431, 5 sup. Ct. Rep. 1127. 434, 17 Sup. Ct. Rep. 126. 14 Barney v. Latham, 103 U. S. As to extension of time in which 205, 26 L. Ed. 514. to file petition for removal by 15 Id. 592 ch. XVIII.] NOTICE OF PETITION AND BOND. §§457,458 §457. 1. Notice of petition and bond. The fed- eral Judicial Code specifically requires that written notice of the petition for and bond on removal ''shall be given the adverse party or parties prior to filing the same."^ If this condition is not complied Avith, and not waived,^ the federal district court acquires no jurisdiction and the state court is not divested of jurisdiction,^ and the cause will be remanded^ on application therefor.^ The time when the written notice shall be served not being pro- \'ided in the Judicial Code, it is thought that the practice in the state courts in which the suit is brought Avill govern in this matter.^ §458. Purpose and sufficiency of the no- tice. It has been said that the only purpose the written 1 Federal Judicial Code, § 29, 5 Fed. Stats. Ann., 2d ed., p. 235. Notice not required prior to this enactment. — See annotations and cases 5 Fed. Stats. Ann., 2d ed., pp. 67-69. 2 Failure to object for want of notice has said to be a waiver of the defect, and that the right to notice may be waived at the elec- tion of the party entitled thereto. — Booki V. Pullman Co., 220 Mass. 71, 107 N. E. 418. This doctrine is thought to be open to serious doubt. If the written notice i s mandatory, as all the courts hold, and jurisdic- tions as some strongly intimate, as pointed out hereafter, there can be no "election" on the part of the party entitled to notice. State court without power to pass upon the question whether written notice was given, or whether it was waived by the party entitled thereto. — Booki v. Pullman Co., 220 Mass. 71, 107 N. E. 418. 3 The authorities may not go quite as far as the text; but they hold the provision as to notice mandatory, and being mandatory is absolutely essential to the valid- ity of the attempted removal, and that such notice is jurisdic- tional is strongly intimated in the cases cited to this paragraph. — See: Gains v. Southern Pac. Co., 198 Fed. 432; United States v. Sessions, 123 C. C. A. 570, 205 Fed. 502. See, also, cases cited footnote 5, this section. 4 As to remand, see, post, §§ 475 et seq. 5 See: Gains v. Southern Pac. Co., 198 Fed. 432; United States v. Sessions, 123 C. C. A. 570, 205 Fed. 502; Loland v. Northwest Stevedore Co., 209 Fed. 626; War- ner v. Bissinger, 210 Fed. 96; Arthur v. Maryland Casualty Co., 216 Fed. 386. 6 Loland v. Northwest Steve- dore Co., 209 Fed. 626, citing Chase V. Erhardt, 198 Fed. 305. I Code PI. and Pr.— 38 593 §459 CODE PLEADING AND PRACTICE. [l*t-l, notice required by the Judicial Code can serve is to notify the opposite party that all future proceedings in the case are about to be transferred to another tribunal. Under the provisions of the Judicial Code^ the filing of the petition and bond divests the state court of jurisdiction and in- vests the jurisdiction in the federal district court of the district in which the state is located in the courts of which the suit was commenced.- The party upon whom the notice is served can not object in the state court either to the sufficiency of the petition or of the bond,^ and the state court, after the filing of the petition and bond, whether they are sufficient or not, is without power to pass upon either.^ This being the case, it would seem that any writ- ten notice served at any time before the actual filing of the petition and bond for removal will be sufficient,^ without stating the exact date on which the petition and bond will be filed,** or stating that it will be filed on the day of the date of the notice.'^ § 459. 2. Petition foe removal. — In general. It has been held that a petition for the removal of a case f]-om a state to the federal district court of the proper district should properly allege the service of the written notice^ required to be served ;- the service of such a notice, being mandatory, is necessary to divest the state court 1 § 59, 5 Fed. Stats. Ann., 2d ed., 6 Porter v. General Banking Co., p. 235. 213 Fed. 697; Cropsey v. Sun 2 Id.; Hansford v. Stone-Ordean- Printing & Publishing Assoc, 215 Wells Co., 201 Fed. 185. Fed. 132. "On or before" a future date named, and filed tliree days before the date named. — Cropsey v. Sun 220 Mass. 71, 107 N. E. 418; Crop- p^j^^.^^ ^ Publishing Assoc, 215 sey V. Sun Printing & Publishing p^^ ^^^ Assoc. 215 Fed. 132; Marshall v. ^ Han's ford v. Stone-Ordean- Holmes, 141 U. S. 589, 35 L. Ed. ^^j,^ ^^^ ,01 Fed. 185. 870, 12 Sup. Ct. Rep. 62. ^ ^^ ^^ ^^.^^^^ ^^^.^^ required, Compare: Ante, § 456, "footnotes ggg, ante, §457. 6-9, and text going therewith. o Booki v. Pullman Co., 220 Mass. 5 Chase v. Erhardt, 198 Fed. 305. 71, 107 N. E. 277. 594 3 Id. 4 Id. See: Booki v. Pullman Co., eh. XVIII.] AMOUNT IN CONTROVERSY. § 460 of jurisdiction and to confer jurisdiction on the federal district court.^ The Judicial Code^ provides that the party seeking a change of venue shall make and file a petition therefor. This provision is to receive a strict construction,^ and for that reason must be literally and strictly complied with;« and such removal can not be effected by a mere motion" in the state court, not^dth- standing the fact that a *' petition," within the purview of the statute, is merely a written request in legal lan- guage,^ and a motion may be in writing asking or request- ing removal ; neither can the removal be effected by mere consent or stipulation of the parties.^ <§> 460. (1.) Averments as to amount in con- troversy. We have already seen that no case is remov- able of which the federal district court has not original jurisdiction,! and also that such district court is given original jurisdiction only in cases in which the amount in controversy exceeds, exclusive of interest and costs, the sum of three thousand dollars p hence a petition for removal must show that the jurisdictional amount is in- volved in the controversy between the parties.^ This is the essential element in the petition for removal, after the formal allegation of service of written notice;^ and the 3 See discussion, ante, § 456, and kersburg First Nat. Bank v. authorities in footnotes 5-9. Prager, 34 C. C. A. 51 63 U S 4 § 29, 5 Fed. Stats. Ann., 2d ed., App. 703, 91 Fed. 689; People's p. 235. Bank v. Calhoun, 102 U. S. 56, 26 5 See, ante, §456, footnote 6. '" ^^' ^^^' Hegler v. Faulkner. 6 Id., footnote 7. i^^ ^- ^- ^^^' ^^ «-• Ed. 210. 8 Sup. Ct. Rep. 1203. 7 Key V. West Kentucky Coal Compare: Mackay v Uinta Co., 237 Fed. 258; Nelson v. Black Devel. Co.. 229 U S 173 57 L Ed Diamond Min. Co.. 237 Fed. 204. ^SS. 33 Sup. Ct. Rep 638 * " 8 See Shaft v. Phoenix Mut. Life j gee. ante, § 455 Ins. Co.. 67 N. Y. 544, 23 Am. Rep. o jjj 138, reversing 8 Hun 632; State 3 Middleton v. Middleton, 87 Iowa Bank v. First Nat. Bank, 34 N. J. 9Q9 cd kt w i^-j. d i t:, ,_„ „ , ^ ^ '^^'^' ^^ ^- ^- i'*3; Pennsylvania Eq. 450; Fenstermacher v. State, co.. In re, 137 U. S. 451 34 L. Ed. 19 Ore. 504. 25 Pac. 142. ,,,^ ,, S^,p ^^ ^^^ ^^^^ i» Foley, In re, 76 Fed. 390; Par- 4 See, supra, § 459. 595 §460 CODE PLEADING AND PRACTICE. [Pt. I, state court, in determining the amount involved in the controversy is required to examine the complaint or declaration filed in the action as well as the petition for removal,^ although it has been said to be immaterial that the amount involved in the controversy is not stated in the complaint or declaration of the plaintiff where it is sufficiently alleged in the averments in the petition for removal.'^ But where the complaint or declaration in the 5 Springer v. Bricker, 165 Ind. 532, 76 N. E. 114; Bacon v. Iowa Cent. R. Co., 157 Iowa 493, 137 N. W. 1011; Phoenix Life Ins. Co. V. Saettel, 33 Ohio St. 278. Petition need not state amount in controversy where a jurisdic- tional amount is fully and clearly set forth in the complaint or decla- ration of the plaintiff filed in the case. — Phoenix Life Ins. Co. v. Saettel, 33 Ohio St. 278. 6 See: Middleton v. Middleton, 87 Iowa 292, 54 N. W. 143; Bani- gan V. Worcester, City of, 30 Fed. 392; Egan v. Chicago, M. & St. P. R. Co., 53 Fed. 675; South Dakota Cent. R. Co. v. Chicago, M. & St. P. R. Co., 73 C. C. A. 176, 141 Fed. 578; Order of Railroad Teleg- raphers V. Louisville & N. R. Co., 148 Fed. 437; Waha-Lewiston Land & Water Co. v. Lewiston-Sweet- water Irr. Co., 158 Fed. 137; Briges V. Sperry, 95 U. S. 401, 24 L. Ed. 390; Gold Washings & Water Co. V. Keyes, 96 U. S. 199, 24 L. Ed. 656. Suit arising under laws of United States the complaint filed in a Ken- tucky court did not, and under the state statute and practice need not, show any amount or value in controversy; on a motion to re- mand (as to remand, see, post, §§ 475 et seq.) the question arose whether the value of the matter in 5 dispute could be shown in the petition for removal, alone. The court said: "Whether we should, as to the question, follow the rule in Tennessee v. Union & Planters' Bank (152 U. S. 454, 38 L. Ed. 511, 14 Sup. Ct. Rep. 654; Postal Tel. Cable Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. Rep. 192, sub nom. Postal Tel. Cable Co. v. United States, 39 L. Ed. 231; Ore- gon Short-Line & U. N. R. Co. v. Skottowe, 163 U. S. 495, 40 L. Ed. 1048, 16 Sup. Ct. Reg. 869; Arkan- sas V. Kansas & Texas Coal Co., 283 U. S. 185, 46 L. Ed. 144, 29 Sup. Ct. Rep. 47) which requires that the facts showing that the cause arose under the constitution and laws of the United States (as to federal question, see, ante, § 452, and, post, § 466) shall ap- pear by the plaintiff's pleadings and not elsewhere, or whether we shall follow the rule in Stevens v. Nichols, 130 U. S. 230, 231, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518, and Ysleta, City of, v. Canda, 67 Fed. 6, which permits the facts of diverse citizenship (as to diverse citizenship, see, ante, § 448, and, post, § 461) to be shown in the petition for removal, was the ques- tion to be solved. We found it in some confusion, some cases hold- ing one way and some the other; but upon the averments of the 96 Ch. XVIII,] AMOUNT IN CONTROVERSY. § 460 court where suit brought and the proceedings on file show that the amount involved is less than the amount required to give the federal district court original jurisdiction, the fact that the petition for removal states that the amount involved is the jurisdictional amount requisite will not make the cause removable and the filing of the petition and bond will not deprive the state court of jurisdiction.'^ When the prayer for judgment in a complaint is for a sum less than that set forth in the declaration, the sum demanded in the ad damnum clause is the real amount involved in the controversy and must control on an appli- cation for removal, according to some, — and what are thought to be the better, — authorities,^ while other cases hold that the prayer for relief forms no part of the com- plaint or declaration and that the sufficiency of amount in controversy to confer jurisdiction must be determined from the statement of facts rather than from the prayer for relief;^ but the ad damnum clause or prayer vnll not control when the allegations of the complaint show that petition for removal, as now Iowa 750, 69 N. W. 553; Smith v. amended, and not controverted Northern Pac. R. Co., 3 N. D. 17, (Deshon v. Cincinnati, N. O. & 53 N. W. 173; Lalce Erie & W. R. T. P. R. Co., 66 C. C. A. 345, 133 ^o. v. Juday. 19 Ind. App. 436, 49 Fed. 471), and upon the considera- -^^ ^- ^'^^= ^^'^^'^ v. Port Blakely tion that such an injunction as ^^*"^^^ ^°-' ^^ ^ash. 309, 87 Pac. that prayed for, if granted, would represent a considerable money value (as to necessity for "money 339. See, also, 5 Encyc. of PI. and Pr., 712. 9 See: Henry v. McKittrick, 42 value," see, ante, § 455), we have „ ,„^ „„ _ ,^, , , ' \ . ' , Kan. 485, 22 Pac. 576; Marquat v. reached the conclusion not to re- ,, ,' „ ,, „ „„' Marquat, 12 N. Y. 336, reversing 7 How. Pr. 417; Tiffin Glass Co. mand the c a s e." — Evans, J., in Order of Railroad Telegraphers v. -^ , -. ^, . ^ T Ml o XT Ti .^ -..o T-i .. V. Stokes, 54 Ohio St. 157, 43 N. E. Louisville & N. R. Co., 148 Fed. ^„^ ... 437, 440. " . Judge Dillon savs: "The value of T Bacon v. Iowa Cent. R. Co., 157 the matter in dispute, for the pur- Iowa 493, 137 N. W. 1011. p^ge of removal, is to be deter- s Bacon v. Iowa Cent. R. Co., mined by reference to the amount 157 Iowa 493, 137 N. W. 1011. See claimed in the declaration, peti- Cooper V. Dillon, 56 Iowa 249, 9 tion, or bill of complaint." — Dillon N, W. 302; Hiatt v. Nelson, 100 on Removal of Causes, § 93. 597 §461 CODE PLEADING AND PRACTICE. [Pt. I, the sum claimed, and therefore the amount in contro- versy, is less than the amount for which judgment is de- manded in the prayer.^" ^61. (2.) Averments as to diversity of citi- zenship.^ In an application for removal of cause on the ground of diversity of citizenship, that diversity must be made to clearly appear; and the petition should set up such facts as, taken in connection with other facts in the record, will bring the applicant within the provisions of the statute and entitle him to a removal of the case.- It is not necessary to entitle to a removal on the ground of diversity of citizenship that this jurisdictional fact shall appear upon the face of the complaint filed by the plain- tiff in the state court ;^ but the petition for removal must show this diversity of citizenship, and shall further point out the particular state of residence of each party in- 10 Gorman v. Havird, 141 U. S. 206, 35 L. Ed. 717, 11 Sup. Ct. Rep. 943. 1 Form of petition for removal of causes to federal court on ac- count of diversity of citizenship, see Jury's Adjudicated Forms of Pleading and Practice, vol. 2, p. 1817, form No. 1102. 2 See authorities cited 5 Fed. Stats. Ann., 2d ed., p. 282, col. 2. 3 See: Grimball, Ex parte, 61 Ala. 398; Beebe v. Armstrong, 11 Mart. (La.) 440; Adams Express Co. v. Trego, 35 Md. 47; Guarantee Co. V. Lynchburg First Nat. Bank, 95 Va. 480, 28 S. E. 909; Ladd v. Tudor, 3 Woodb. & M. 325, Fed. Cas. No. 7975; Levy v. Laclede Bank, 18 Fed. 193; Burke v. Bunker Hill & S. Mln. & Concent. Co., 46 Fed. 644, 648; Ysleta, City of, v. Cauda, 67 Fed. 6, distinguishing Chappell V. Watertown, 155 U. S. 102, 39 L. Ed. 85, 15 Sup. Ct. Rep. 34 (which reversed 39 Fed. 77), and Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. Rep. 192, sub nom. Postal Tel. Cable Co. v. United States, 39 L. Ed. 231; Pittsburgh, C. & St. L. R. Co. V. Ramsey, 89 U. S. (22 Wall.) 322, 2 L. Ed. 823; Robert- son V. Cease, 97 U. S. 466, 24 L. Ed. 1057; Mansfield, C. & L. M. R. Co. V. Swan, 111 U. S. 379, 28 L. Ed. 462, 4 Sup. Ct. Rep. 510; Cameron V. Hodges, 127 U. S. 322, 32 L. Ed. 132, 8 Sup. Ct. Rep. 1154; Stevens V. Nichols, 130 U. S. 230, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518; Mitchell V. Smale, 140 U. S. 406, 35 L. Ed. 442, 11 Sup. Ct. Rep. 819, 840. Diversity of citizenship (see, ante, § 448) may be shown in the petition for removal, only. — Ysleta, City of, v. Canda, 67 Fed. 6; Stevens v. Nichols, 130 U. S. 230, 231, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518. 598 ch. XVIII.] AVERMENT AS TO ALIENAGE. §462 volved,^ and that the diversity of citizenship existed at the time when the complaint was filed as well as at the time when the petition for removal is presented,^ because to be removable on ground of diversity of citizenship the record must show that at the time of the application for removal such diversity of citizenship exists.^ §462. (3.) Averments as to alienage.^ In a case in which the removal of a suit from a state to the federal district court of the state is sought on the ground of alienage of the party, the petition for removal must affirmatively show such alienage, — except in those cases in which it already plainly appears in the record in the 4 Huntington v. Pinney, 126 Fed. 327; Jones v. Adams Express Co., 129 Fed. 618; Thompson v. Stal- mann, 131 Fed. 809; Grace v. American Cent. Ins. Co., 109 U. S. 278, 27 L. Ed. 392, 3 Sup. Ct. Rep. 207, reversing 16 Blatchf. 433, Fed. Cas. No. 5684; Cameron v. Hodges, 127 U. S. 322, 32 L. Ed. 1328, Sup. Ct. Rep. 1154; Neel v. Pennsyl- vania Co., 157 U. S. 153, 39 L. Ed. 654, 15 Sup. Ct. Rep. 589. Averment of "residence" in a certain state is not equivalent to an averment of "citizenship" in such state, and is insufficient for removal. — Neel v. Pennsylvania Co., 157 U. S. 153, 39 L. Ed. 654, 15 Sup. Ct. Rep. 589. See, also, cases cited in annota- tion 5 Fed. Stats. Ann., 2d ed., p. 584, cols. 1 and 2; also pp. 289-301. Diversity of citizenship appear- ing upon the face of the complaint filed in the state court, or from any part of the record in the case at the time the petition for re- moval is filed, the citizenship of the parties is not required to be stated in such petition. — Wells v. Russellville Anthracite Min. Co., 206 Fed. 528. Several parties, both plaintiffs and defendants, particular state of which each is a citizen must be set out in petition for removal. — Jones V, Adams Express Co., 129 Fed. 618. 5 Gibson v. Bruce, 108 U. S. 561, 27 L. Ed. 825, 2 Sup. Ct. Rep. 873, affirming 9 Fed. 540; Houston & F. C. R. Co. V. Shirley, 111 U. S. 358, 28 L. Ed. 455, 4 Sup. Ct. Rep. 472, affirming 4 Woods 411, 13 Fed. 705; Mansfield, C. & L. M. R. Co. V. Swan, 111 U. S. 379, 28 L. Ed. 462, 4 Sup. Ct. Rep. 510; Stevens V. Nichols, 130 U. S. 230, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518. 6 Stevens v. Nichols, 130 U. S. 230, 32 L. Ed. 914, 9 Sup. Ct. Rep. 518; Crehore v. Ohio & M. R. Co., 131 U. S. 240, 33 L. Ed. 144, 9 Sup. Ct. Rep. 692; Kellam v. Keith, 144 U. S. 568, 30 L. Ed. 544. 12 Suj). Ct. Rep. 922. 1 Form of petition to remove cause on account of alienage, see Jury's Adjudicated Forms of Plead- ing and Practice, vol. 2, p. 1818, Form No. 1103. 599 § 463 CODE PLEADING AND PRACTICE. [Pt. I, case, — and not leave the fact to be argumentatively in- ferred from other circumstances stated, — e. g. that he is consul for a foreign government;- and this allegation must be made positively and not on information and be- lief.^ But in the case of a foreign corporation, where the complaint filed in the state court shows on its face that the corporation is a foreign corporation, the alienage of such corporation at the time the suit was brought need not be alleged,^ it being sufficient if the record shows affirmatively the alienage.^ ^ 463, (4.) Averments as to separable con- troversy. On an application for the removal of a suit from a state court to the federal district court for the district, it is usual,^ and surely is the better practice, for the peti- tion for removal, ''of itself distinctly to show and point out the separable controversy, name the parties to it, and state all the grounds upon which the petition relies, and not leave the court to grope through the record" in an effort to ascertain whether a separable controversy in fact exists and its exact nature;- although it has been said to be sufficient simply to allege the existence of a separable controversy, without pointing out such contro- versy or the parties to it, where it appears from the rec- ord that such a controversy in fact exists,^ because the existence of a separable controversy is to be determined from the condition of the record in the state court at the 2Bors V. Preston, 111 U. S. 252, 5 Id.; Pittsburgh, C. & St. L. R. 28 L. Ed. 419, 4 Sup. Ct. Rep. 407. Co. v. Ramsey, 89 U. S. (22 Wall.) 3 Wolff V. Archibald, 14 Fed. 369. 322, 22 L. Ed. 823; Robertson v. 4 National Steamship Co. v. Tug- Cease, 97 U. S. 646, 648, 24 L. Ed. man, 106 U. S. 118, 27 L. Ed. 87, 1057, 1058. 1 Sup. Ct. Rep. 58. reversing 76 i Harding v. Standard Oil Co.. N. Y. 207, affirming 13 Hun 332. 170 Fed. 651. As to necessity of showing facts 2 Gates Iron Works v. Pepper, 98 as alleged existed at the time suit Fed. 449. was brought, see, ante, § 461, foot- 3 Harding v. Standard Oil Co., note 5, and text going therewith. 170 Fed. 651. GOO ch. XVIII.] SEPARABLE CONTROVERSY, §463 time of filing the petition for removal,^ not upon the alle- gations in the affidavit or in the petition for removal,^ or the subsequent proceedings in the federal district court,^ — unless the petition both alleges and proves that the de- fendants were wrongfully made joint defendants for the express purpose of preventing a removal to the federal district court. "^ For the purpose of determining whether a separable controversy in fact exists, the pleadings of the plaintiff in the state court must be taken as true.^ In actions ex delicto on an application for removal on account of separable controversy, the separable contro- 4 Chesapeake & O. R. Co. v, Dixon, 179 U. S. 131, 45 L. Ed. 121, 21 Sup. Ct. Rep. 67. See Texar- kana Tel. Co. v. Bridges, 75 Ark. 119, 86 S. W. 841; American Bridge Co. V. Hunt, 64 C. C. A. 550, 130 Fed. 304. 5 Louisville & N. R. Co. v. Wan- gelin, 132 U. S. 599, 33 L. Ed. 474, 10 Sup. Ct. Rep. 203. See Security Co. V. Pratt, 65 Conn. 168, 32 Atl. 306; Arrowsmith v. Nashville & D. R. Co., 57 Fed. 169; Warax v. Cin- cinnati, N. O. & T. P. R. Co., 72 Fed. 640; Swann v. Mutual Re- serve Fund Life Assoc, 116 Fed. 234; Loden v. Mack, 65 C. C. A, 363, 130 Fed. 879; Miller v. Clif- ford, 67 C. C. A. 56, 133 Fed. 884, 5 L. R. A. (N. S.) 58; Kansas City, Ft. S. & M. R. Co. V. Daughtry, 138 U. S. 303, 34 L. Ed. 964, 11 Sup. Ct. Rep. 306; Wilson v. Oswego Town- ship, 151 U. S. 56, 38 L. Ed. 70, 14 Sup. Ct. Rep. 259. 6 Wilson v. Oswego Township, 151 U. S. 56, 38 L. Ed. 70, 14 Sup. Ct. Rep. 259. ^ Louisville & N. R. Co. v. Wan- gelin, 132 U. S. 599, 33 L. Ed. 474, 10 Sup. Ct. Rep. 203. Fraudulent joinder does not ex- ist where complaint shows that servant of nonresident corporation jointly liable with the company. — Enos V. Kentucky Distilleries & Warehouse Co., Ill C. C. A. 74, 189 Fed. 346. See Cincinnati N. O. & T. P. R. Co. V. Cook, 113 Ky. 164, 67 S. W. 383; Rutherford v. Illinois Cent. R. Co., 120 Ky. 22, 85 S. W. 199 (denial in petition for removal of servants negligence does not render joinder fraudulent, as it does not state a jurisdictional fact) ; Schumpert v. Southern R. Co., 65 S. C. 339, 95 Am. St. Rep. 802, 43 S. E. 813 (negligence with- in scope of servant's employ- ment) ; Cincinnati, N. O. & T. P. R. Co. V. Boon, 200 U. S. 223, 5 L. Ed. 450, 4 Ann. Cas, 1152, 26 Sup. Ct. Rep. 166 (diversity of cit- izenship as to other defendants than the servant joined with for- eign corporation necessary to re- moval). X East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. Ed. 382, 7 Sup. Ct. Rep. 190. See Na- tional Docks & N. J. Junction Con- necting R. Co. v. Pennsylvania R. Co., 52 N. J. Eq. 65, 28 Atl. 71. GOl §463 CODE PLEADING AND PRACTICE. [Pt. I, versy must appear in the plaintiff's pleadings in the state court, and can not be made to appear from the affidavit or the petition^ filed for removal. ^^ The well-settled rule is that in actions of tort, when the action might have been brought against many persons or against any one of them, and it is brought in a state court against them all jointly, this does not constitute a separate controversy which will authorize the removal of the suit by some of the defendants to the federal district court, even in those cases in which the defendants file separate answers and set up different defenses, and those asserting the right to a removal allege that they are not jointly liable with the other defendants, and that their own controversy with the plaintiff is a separate one; because a defendant has no right to say that a controversy is a separate one which the plaintiff seeks to make joint, can not defeat the plaiu- 9 See authorities, footnote 5, this section. 10 Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L. Ed. 121, 21 Sup. Ct. Rep. 67, affirming 104 Ky. 608, 47 S. W. 615. See Win- ston's Admr. v. Illinois Cent. R. Co., Ill Ky. 954, 958, 55 L. R. A. 603, 604, 65 S. W. 13; Lanning v. Chicago Great Western R. Co., 196 Mo. 658, 94 S. W. 491; Able v. Southern R. Co., 73 S. C. 178, 52 S. E. 962; Riser v. Southern R. Co., 116 Fed. 215; Swann v. Mutual Reserve Fund Life Assoc, 116 Fed. 233; Person v. Illinois Cent. R. Co., 118 Fed. 347; Union Terminal R. Co. V. Chicago, B. & Q. R. Co., 119 Fed. 211; Carothers v. McKenley Min. & Smelt. Co., 122 Fed. 307; Boatman's Bank v. Fritzien, 68 C. C. A. 300, 135 Fed. 662; Daven- port V. Southern R. Co., 65 C. C, A. 447, 135 Fed. 963; Cella v. Brown, 136 Fed. 443; Yeates v. Illinois Cent. R. Co., 137 Fed. 945; Lucas V. Milliken, 139 Fed. 825; Hefflin- ger V. Choctaw, O, & G. R. Co., 140 Fed. 77; Holmes v. United States Fire Ins. Co., 142 Fed. 865; Thomas V. Great Northern R. Co., 77 C. C. A. 256, 147 Fed. 84; Gable- man V. Peoria, D. & E. R. Co., 179 U. S. 337, 45 L. Ed. 222, 21 Sup. Ct. Rep. 171; Alabama Great So. R. Co. V. Thompson, 200 U. S. 216, 50 L. Ed. 447, 26 Sup. Ct. Rep. 161. As to joinder of statutory action against master with common-law action against servant, for latter's negligence, as creating separable controversy, see note 12 L. R. A. (N. S.) 676. As to joint liability for tort of master and servant, see note 12 L. R. A. (N. S.) 671. As to whether joint action against master and servant for negligence of sei^vant '•ontains sep- arable controversy, see note 5 L. R. A. (N. S.) 96. 602 (ll. XVIII.] PREJUDICE AND LOCAL INFLUENCE. §464 tiff's right to prosecute his suit to a final decision in his fn\Ti way. The cause of action is the subject-matter in controversy, and that is, for all the purposes of the suit, wliat the plaintiff declares it to be in his pleadings. Hence the rule that the plaintiff's pleadings must show the con- troversy separable to entitle a defendant to removal.^ ^ §464. (5.) Averments as to prejudice and LOCAL INFLUENCE. Wc havc already seen that in those sases where a defendant, a citizen of another state, can not have a fair and impartial trial in the court in which the suit is commenced, he is entitled to have the cause removed to the federal district court upon making the jurisdictional facts to clearly appear ;^ but it must be averred in the petition for removal and shown by the affidavits or other evidence that the prejudice or detri- mental local influence exists as between the plaintiff and the defendant seeking the removal, because such preju- dice or influence as between defendants is not a ground for removal.- The petition and affidavits must also show that the defendant seeking the removal is a necessary or proper defendant and not merely a formal defendant, because such a defendant is not entitled to a removal of the cause on this ground.^ The petition and affidavits must state all the facts upon which the removal is sought.* It is not enough to show a separable controversy,® diver- 11 Powers V. Chesapeake & O. Rep. 726, 727; Connell v. Smiley, R. Co., 169 U. S. 92, 42 L. Ed. 673, 156 U. S. 335, 340, 39 L. Ed. 443, 18 Sup. Ct. Rep. 264. See Pirie v. 444, 15 Sup. Ct. Rep. 353, 354. Tvedt, 115 U. S. 41, 43, 29 L. Ed. i gee. ante, § 450. :^31, 332, 5 Sup. Ct. Rep. 1034, 1035; Sloane v. Anderson, 117 U. S. 275, 29 L. Ed. 899, 6 Sup. Ct. Rep. 730; Little v. Giles, 118 U. S. 596, 600, 601, 30 L. Ed. 269, 270, 7 Sup. ' ^^'^^''^ <^o"«Se of Western Re- Ct. Rep. 32, 35; Louisville & N. R. ^^'"^^ University v. Toledo, W. & Co. V. Wangelin, 132 U. S. 599, 33 W. R. Co., 47 Fed. 836. L. Ed. 474, 10 Sup. Ct. Rep. 203; * Hall v. Chattanooga Agricul- Torrance v. Shedd. 144 U. S. 527, tural Works, 48 Fed. 599. 630, 36 L. Ed. 528, 531, 12 Sup. Ct. 5 Jefferson v. Driver, 117 U. S. 603 2 Hanrick v. Hanrick, 153 U. S. 192, 38 L. Ed. 685, 14 Sup. Ct. Rep. 635. § 465 CODE PLEADING AND PRACTICE. [Pt. 1, sity of citizenship must also be shown^ by the petition and supporting affidavits. The petition must distinctly and directly aver prejudice against the party seeking the re- moval, or local influence exerted by the adverse party against the moving party, and the affidavits supporting the petition must state the facts showing such prejudice or local influence, not merely express the conviction or opinion of the affiants as to the existence of the same ;^ an allegation that affiant has reason to believe and does be- lieve such prejudice or local influence does exist and for that reason the moving party can not have a fair and impartial trial in the state court, is insufficient.^ § 465. (6.) Averments as to denial of cmii RIGHTS. The petition and supporting affidavits seeking the removal of a cause from a state court to the federal district court on the ground of a denial to the moving- party of his civil rights in the state courts, must state such facts and circumstances as clearly show the exist- ence of the jurisdictional facts. Thus, it has been held that the petition and supporting affidavits of a negro on trial on a criminal charge in a state court which merely show that the grand and petit jurors were exclusively white persons, that negroes had never been permitted to serve as jurors in the court in the county in which the trial was to be had in any case in which a negro was in- terested, are insufficient to show the existence of the juris- dictional fact of a denial of, or an inability to enforce, ci\dl rights in the state tribunal.^ And neither is it a sufficient showing of the denial of civil rights where the petition for removal and the record in the case shows that 272, 29 L. Ed. 897, 6 Sup. Ct. Rep. 7 Goldsworthy v. Chicago, M. & 729; Cambria Iron Co. v. Ashburn, St. P. R. Co., 38 Fed. 769. 118 U. S. 54, 30 L. Ed. 60, 6 Sup. 8 Collins v.. Campbell, 62 Fed. Ct. Rep. 929. 850. 6 See annotations and cases 5 i Virginia v. Rives, 100 U. S. 313, Fed. Stats. Ann., 2d ed., pp. 166 sub nom. Virginia, In re, 25 L. Ed. et seq. 667. 604 ell. XVIII.] DENIAL OF CIVIL RIGHTS. § 465 the petitioner has been tried three times on a criminal charge, convicted in the trial court each time, and the judgment in each instance reversed by the court of final resort in the state; that on the second and third trials the petitioner had been discriminated against by the per- sons charged under the state laws with the duty of draw- ing the panel and summoning the veniremen from whom the trial jury was to be selected, in such a manner and with the result that all the jurors in such second and third trials were of the political party opposed to the one to which the petitioner belonged; that an objection to the panel and jury on that ground, and on motion for a new trial because thereof, the trial court refused to consider the evidence offered to show such discrimination, but de- clared and ruled that the petitioner had no right to object to the panel and the jury, because the jurors chosen pos- sessed the statutory qualification of jurors and were com- petent to hear and determine the cause, according to the construction of the court of highest resort of the state, which construction and decision were final and not subject to review.- The petition for removal and the record must further show that such discrimination complained of was authorized by the state constitution or laws, as inter- preted by the highest court of the state, before a showing is made sufficient to warrant removal of cause on ground of denial of civil rights.^ In other words, to be sufficient, the petition and the record must show that the denial of civil rights complained of is due to the fact that the state constitution or laws as interpreted by the court of last resort of the state, is repugnant to the fourteenth amend- ment to the constitution of the United States,^ and that 2 This was held a sufficient 4 Dixon v. State, 74 Miss. 271, showing in Kentucky v. Powers, 20 So. 839; New York v. Bennett, 139 Fed. 452, reversed as noted in 113 Fed. 515; Scott v. Kinney & next footnote. Co., R. D., 137 Fed. 1009. 3 Kentucky v. Powers, 201 U. S. See, also, ante, § 451, footnotes 4 1, 50 L. Ed, 633, 26 Sup. Ct. Rep. et seq., and text. 387, reversing 139 Fed. 452. 605 M66 CODE PLEADING AND PRACTICE. Pt. [, the petitioner has no adequate remedy in the courts of the state where the suit is pending.^ §466. (7.) Averments as to federal ques- tion.^ A petition on application for removal of a suit from a state court to the federal district court because a federal question is involved must aver that it appears from the pleadings filed by the plaintiff in the suit that the cause of action is one arising under the constitution and laws of the United States,^ or it will be insufficient to warrant a removal f no statement in the petition for removal, or in any demurrer filed in the action, will supply this want of showing of a federal question in the original pleading ;* although it has been said that it is sufficient if the federal 5 New Jersey v. Corrigan, 139 Fed. 758. See Chappell v. Real- Estate Pooling Co., 89 Md. 258, 42 Atl. 936. 1 Form of petition for removal where a federal question involved. See Jury's Adjudicated Forms of Pleading and Practice, vol. 2, p. 1818, Form No. 1104. -' Showing must be by plaintiff's pleading in the suit, and not other- wise, that cause arose under con- stitution and laws (as to federal question, see, ante, § 452) of the United States. — Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. Ed. 511, 14 Sup. Ct. Rep. 654; Postal Tel. Cable Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. Rep. 192, sub nom. Postal Tel. Cable Co. v. United States, 39 L. Ed. 231; Ore- gon Short-Line & U. N. R. Co. v. Skottowe, 163 U. S. 495, 40 L. Ed. 1048, 16 Sup. Ct. Rep. 869. See, also, authorities cited in next footnote. 3 Central R. Co. v. Mills, 113 U. S. 249, 28 L. Ed. 949, 5 Sup. Ct. Rep. 456; Chappell v. Waterworth, 155 U. S. 102, 29 L, Ed. 85, 15 Sup. Ct. Rep. 34; Postal Tel. Cable Co. V. Alabama, 155 U. S. 482, 15 Sup. Ct. Rep. 192, sub nom. Postal Tel. Cable Co. v. United States, 39 L. Ed. 231; United States v. Amer- ican Bell Tel. Co., 159 U. S. 548, 40 L. Ed. 265, 16 Sup. Ct. Rep. 69; Walker v. Collins, 167 U. S. 57, 42 L. Ed. 76, 17 Sup. Ct. Rep. 738; Galveston, H. & S. A. R. Co. v. Texas, 170 U. S. 226, 42 L. Ed. 1017, 18 Sup. Ct. Rep. 603; Gable- man v. Peoria, D. & E. R. Co., 179 U. S. 355, 45 L. Ed. 220, 21 Sup. Ct. Rep. 171; Arkansas v. Kansas & T. Coal Co., 183 U. S. 185, 46 L. Ed. 144, 22 Sup. Ct. Rep. 47; Minnesota v. Northern Securities Co., 194 U. S. 48, 48 L. Ed. 870, 24 Sup. Ct. Rep. 598. Federal question first set up in reply or defense, cause not remov- able. — Houston & T. C. R. Co. v. Texas, 177 U. S. 66, 44 L. Ed. 673, 20 Sup. Ct. Rep. 545. See Central R. Co. v. Mills, 113 U. S. 249, 28 L. Ed. 949, 5 Sup. Ct. Rep. 456. i Tennessee v. Union & Plant- ers' Bank, 152 U. S. 454, 38 L. Ed, 511, 14 Sup. Ct. Rep. 654. GOG ch. XVIII.] VERIFICATION — AMENDMENT. §§467,468 question appears in the record, or in the petition for removal, whether disclosed in the original pleading in the case or not,'' and where the federal question is disclosed in the original pleading it need not be restated in the petition for removal.^ § 467. Verification of petition for removal. The federal Judicial Code^ requires that a petition. for the removal of a suit from a state court to the federal district court of the district, shall be duly verified ; such verification was not formerly required;^ and as the Ju- dicial Code does not specify by whom the verification shall be made, it has been held that such verification may be made by the attorney for the party seeking to remove the cause.^ <^ 468. Amendment of petition for removal. A petition for the removal of a suit from a state court to a federal district court for any of the causes or grounds for or on which a suit is removable, may be amended^ or a new petition filed^ in the state court at any time before 5 Metcalf V. Watertown, City of, verification. — Groton Bridge & 128 U. S. 586, 32 L. Ed. 543, 9 Sup. Mfg. Co. v. American Bridge Co., Ct. Rep. 173. 137 Fed. 284, 290. 6 Little York Gold Washing & 3 Harley v. Homes Ins. Co., 125 Water Co. v. Keyes, 94 U. S. 199, Fed. 792. 24 L. Ed. 656. i Mitchell v. Small, 140 U. S. 1 § 29, 5 Fed. Stats. Ann., 2d ed., 406, 35 L. Ed. 442, 11 Sup. Ct. Rep. p. 235. 819, 840. 2 Groton Bridge & Mfg. Co. v. See, also, cases in next footnote. American Bridge Co., 137 Fed. 284, 2 Security Co. v. Pratt, 65 Conn. 290; Donovan v. Wells, 94 C. C. A. 161, 32 Atl. 396; Hammond v. Bu- 609, 169 Fed. 363, 22 L. R. A. chanan, 68 Ga. 728; Cuyler v. (N. S.) 1250; Berry v. Mobile & Smith, 78 Ga. 662, 3 S. E. 408; O. R. Co., 228 Fed. 395; Removal Hardwick v. Kean, 95 Ky. 563, 26 Cases, 100 U. S. 457, sub nom. S. W. 589; Herndon v. Aetna Ins. Meyer V. Delaware Railroad Const. Co., 108 N. C. 648, 13 S. E. 188; Co., 25 L. Ed. 593. St. Louis, I. M. & S. R. Co. v. See Hughes, Federal Practice West (Tex. Civ. App.), 159 S. W. 323. 142; Houser v. Clayton, 3 Woods Verification not signed held not 273, Fed. Cas. No. 6739; Wells v. to vitiate the petition for removal, Russellville Anthracite Coal Co., because the statute did not require 206 Fed. 528. 607 §468 CODE PLEADING AND PRACTICE. [Pt. I, the expiration of tlie time allowed for removal, and in some cases after tliat time,^ in the discretion of the court ;^ and where the alternate jurisdictional facts are stated in the petition for removal filed in the state court, the petition may be amended in the federal district court, in order that it may more fully and accurately state the facts upon Avhich the removal is sought.^ But an amend- ment may be allowed in the federal district court in those cases, only, in which the petition presented to the state court shoAvs on its face sufficient grounds for removal;" if fatally defective in failing to state a ground of removal, or in failing to state the ground sufficiently to show on its face a right of the applicant to a removal, it can not be amended in the federal courts And where the petition for removal as presented to the state court does not con- tain the necessary jurisdictional averments, an amend- I 3 Tremper v. Schwabacher, 84 Fed. 415; Roberts v. Pacific & A. R. & Nav. Co., 104 Fed. 577, 579. By averment as to citizenship of petition being the same at the commencement of the action (see, ante, § 461) and at the time the petition for removal was filed. — Roberts v. Pe«;ific & A. R. & Nav. Co., 104 Fed. 577, 579. 4 Stevens v. Nichols, 157 U. S. 370, 39 L. Ed. 737, 15 Sup. Ct. Rep. 640. r; Roberts v. Pacific & A. R. & Nav. Co., 104 Fed. 577, 579; De la Montanya v. De la Montanya, 158 Fed. 117; Ayers v. Watson, 113 U. S. 594, 28 L. Ed. 1093, 5 Sup. Ct. Rep. 641; Carson v. Dunham, 121 U. S. 421, 30 L. Ed. 992, 7 Sup. Ct. Rep. 1030. Allegation as to citizenship of corporation is amendable. — Wells V. Russellville Anthracite Coal Co., 206 Fed. 528. — Erroneous citizenship of plain- tiff stated through misinformation, federal court may permit amend- ment. — Wilbur V. Red Jacket Con- sol. Coal & Coke Co., 153 Fed. 662. Diverse "residence" instead of diverse "citizenship" (s e e, ante, § 461) being by mistake of attor- n e y alleged in petition for re- moval, amendment to shov/ diverse citizenship will be allowed, where it will not delay the trial. — Hin- man v. Barrett, 244 Fed. 621. 6 Gerling v. Baltimore & O. R. Co., 151 U. S. 673, 38 L. Ed. 311, 14 Sup. Ct. Rep. 533. Amendment to show different state of facts not permissible. — Healy v. McCormick, 157 Fed. 318. 7 Sloane v. Butte Electric R. Co., 150 Fed. 801; Wallenburg v. Mis- souri Pac. R. Co., 159 Fed. 217; Santa Clara County v. Goldy Mach. Co., 159 Fed. 750. COS Ch. XVin.] BOND ON REMOVAL REQUISITES. §469 ment subsequently allowed in the federal court will not cure the defect, or deprive the state court of jurisdiction of the cause. ^ §469. 3. Bond for removal^ — Requisites and sx'FFiciExcY OF. Tlic federal Judicial Code- provides that the applicant for the removal of a suit from a state court to the federal district court, ** shall make and file" with his petition for removal **a bond, with good and sufficient surety"; and this bond must be duly executed by the party seeking a removal,^ before the state court is ousted of jurisdiction in the cause, or the federal district court can take jurisdiction.* A petition for removal by one party, and a bond on removal by another party, does not 8 Springs v. Southern R. Co., 130 N. C. 186, 41 S. E. 100. 1 Form of bond on removal of a suit from a state court to the fed- pral district court is found in Jury's /Adjudicated Forms of Pleading and Practice, vol. 2, p. 1819, form No. 1106. This form of Mr. Jury's was pre- l)ared under the former Removal Act, and is not sufficient under the Judicial Code; but it may be read- ily adapted to the requirements of the latter by substituting for Mr. Jury's clause: "shall enter in the said circuit court of the United States, on the first day of its next session, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said circuit court of the United States, if said court shall hold that said suit was wrongfully or im- properly removed thereto," the following: "shall enter in such dis- trict court of the United States, within thirty days from and after the date of filing said petition, a certified copy of the record in such suit, and shall well and truly pay all costs that may be awarded by said district court of the United States, if said court shall hold that said suit was wrongfully or im- properly removed thereto," [and where the case requires] "and also shall well and truly and promptly appear and enter special bail in said suit" [special bail being orig- inally requisite therein]. i: § 29, 5 Fed. Stats. Ann., 2d ed., p. 235. 3 State ex rel. Basket v. Wood- son, 164 Mo. 440, 64 S. W. 774. 4 Clark V. Guy, 114 Fed. 783. Not signed by principal removal bond not defective under Removal Act March 13, 1888, ch. 866, § 3, 25 Stats, at L. 435, 4 Fed. Stats. Ann., 1st ed., p. 350, such signa- ture not being required by the act. — Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284. Bond capable of being enforced was all that was required. — Alex- andria Nat. Bank v. Bates Co., Willis C, 87 C. C. A, 643, 100 Fed. S3 9. I Code PI. and Pr.— 39 uoy § 469 CODE PLEADING AND PRACTICE. [Pt. I, comply with the requirements of the statute;' the peti- tioner for removal must *'make and file a bond, ivith good and sufficient surety." A bond conditioned as required by the former Removal Acts is insufficient under the Judicial Code.® The form and sufficiency of the bond on removal is governed by the rules of law determining the form and sufficiency of bonds in general. The bond should properly describe the action, and failing to do this is void;^ it should properly state the penal sum of the bond, where a penal sum is required.^ A seal is not necessary, except in the case of a corporation, in those states in which a seal has been declared unnecessary by statute.^ A defect in a bond, which is not jurisdictional, may be amended;^** and where the bond does not comply with the statute, on objection, a new bond may be filed, as the court may re- quire.^ ^ Formal defects in the condition of the bond do not render it void ;^- thus, it has been said that variation in the wording of the condition in a bond on removal from the language in the statute providing for it, where the bond is otherwise sufficient, is immaterial. ^^ One compe- tent surety, who is ''good and sufficient," is all that is required to the validity and sufficiency of a bond other- 5 Farmers' Loan & Trust Co. v. on motion to remand. — Johnson v. Lake Street Elevated R. Co., 173 Austin Mfg. Co., F. C, 76 Fed. 111. 439, 51 N. E. 55, affirming 68 616. 111. App. 666; case reversed on an- 9 Loop v. Winters' Estate, 115 other point, 177 U. S. 51, 44 L. Ed. YeA. 362. 667, 20 Sup. Ct. Rep. 564. G Missouri, K. & T. R. Co. v. Chappell, 206 Fed. 688. 7 Willis C. Bates Co., a corpora- tion, sued, a bond or removal de- scribing the action as against 12 S t a t e Improvement-Develop- Willis C. Bates, was held void.— ment Co. v. Leininger, 226 Fed. Alexandria Nat. Bank v. Bates Co., ^84. See Chase v. Erhardt, 198 Willis C. 87 C. C. A. 643, 160 Fed. Fed. 305. 839. 13 Ellis v. Atlantic & P. R. Co., 8 Failure to do so not material 134 Mass. 338. 610 10 Hodge v. Chicago & A. R. Co., 57 C. C. A. 388, 121 Fed. 48. 11 Chase v. Erhardt, 198 Fed. 305. :h. XVIII.] BOND SHOULD BE PRESEXTED. § 469 wise unobjectionable.^'* The agent of a company on whom service is made may execute the removal bond for re- moval, although his authority to sign the bond does not specifically appear ;^^ but it is otherwise in those cases in which the ^'company" is a corporation.^'' A removal bond executed by a foreign surety company empowered to do business within the state in which the action was brought, executed by an attorney in fact, with the corpo- rate seal attached, is sufficient,^'^ although the bond itself fails to show that such foreign corporation has complied with the laws of the state and was authorized to do busi- ness therein.^ ^ Bond should he presented to the judge of the state court in which the suit is pending which it is sought to have removed.^^ An arbitrary refusal of the judge of the state court to approve the sufficiency of the surety will not pre- vent removal. The applicant for removal may file his bond and petition,-*^ procure the filing of a certified copy of the record on removal in the federal district court 14 Fayette Title & Trust Co. v. the bond, and the corporate seal Maryland, P. & W. V. Tel. & Tel. was not attached.— Alexandria Co., 180 Fed. 928; Removal Cases, Nat. Bank v. Bates Co., Willis C, 100 U. S. 475, sub nom. Meyer v. 8 C. C. A. 643, 160 Fed. 839. Delaware R, Constr. Co., 25 L. Ed. i7 Mutual Life Ins. Co. v. Lang- 593. ley, 145 Fed. 415. Signature of bond by attorney is Brady v. McCrary Co., J. B., of the court, as one of the sureties 244 Fed. 602. thereon, with another competent i9 Groton Bridge & Mfg. Co. v. security, the state law forbidding American Bridge Co., 137 Fed. 284. such attorney to become a surety, "Presenting to a judge in cham- does not vitiate a removal bond. bers and filing it in the state —Removal Cases, 100 U. S. 475, court, satisfies the s t a t u t e." — sub nom. Meyer v. Delaware R. Remington v. Central Pac. R. Co., Constr. Co.. 25 L. Ed. 593. 198 U. S. 95, 49 L. Ed. 959, 25 Sup.' 15 Fayette TiUe & Trust Co. v. Ct. Rep. 577; Noble v. Massachu- Maryland, P. & W. V. Tel. & Tel. setts Ben. Assoc, 48 Fed. 337, and Co., 180 Fed. 928. Loop v. Winters, 115 Fed. 362; i« Removal bond executed by .Johnson v. Computing Scales Co., party as "treasurer" of corpora- 139 Fed. 339. tion, it not appearing the party as 120 As to filing bond and petition, treasurer had authority to execute see, post, § 470. 611 §470 CODE PLEADING AND PRACTICE. [Pt. I, within thirty days thereafter, and proceed in the federal court, subject to a motion to remand, because of the insuf- ficiency of his surety.^^ H^^o. 4. Filing bond and petition — Sufficiency AND PROCEEDING. Formerly the bond and petition for re- moval of a cause from the state court to the federal court was required to be *' presented" to the state court^ in session,- or to a judge thereof in chambers,^ as well as be filed in the court in which the suit was brought ; but under the Judicial Code^ a suit can be removed from the state court to a federal court by regularly^ filing a good and sufficient petition in the state court, only,^ — it can not be by consent or stipulation of the parties,'^ — supported by a proper bond,^ ''with good and sufficient sureties.'"^ The filing of a sufficient petition, wdth a sufficient bond, under the Judicial Code, removes the suit automatically,^" Avith- 21 Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284. 1 Oral motion in state court, held to be a sufficient presenta- tion of petition in Mays v. Newlin, 143 Fed. 574. 2 La Page v. Day, 74 Fed. 977. Filing in state court in vacation suit was remanded in Fox v. Southern R. Co., 80 Fed. 945, and Howard v. Southern R. Co., 122 N. C. 944, 29 S. E. 778. 3 See, ante, § 469, footnote 19. 4 § 29, 5 Fed. Stats. Ann., 2d ed., p. 235. r. On return day is said in Wil- liams V. Miller, 249 Fed. 495. First Nat. Bank v. Frager, 34 C. C. A. 51, 91 Fed. 689; Mayo v. Dockery, 108 Fed. 897. 7 First Nat. Bank v. Frager, 34 C. C. A. 51, 91 Fed. 689. 8 See, ante, § 469. Bond conditioned for filing cer- tified record either in the federal district court of the district in which the suit was commenced in the state court, or in the federal district court of another district, is insufficient and does not author- ize or effect a removal. — Webb v. Southern R. Co., 248 Fed. 618. Defect in bond should be definitely pointed out, or it will be deemed to have been waived, — as by a general demurrer. — Bates v. Rogers Construction Co. (Ky.), 203 S. W. 719. 9 See citation, footnote 4, this section. 10 Ft. Smith & W. R. Co. v. Blevins, 35 Okla. 378, 130 Pac. 525; Montgomery, City of, v. Postal Telegraph-Cable Co., 218 Fed. 471; Brady v. McCrary Co., J. B., 244 Fed. 602. State court ipso facto ousted or joined, on filing of petition for re- moval and b o n d. — Ft. Smith & W. R. Co. V. Blevins, 35 Okla. 378, 130 Pac. 525. 612 il oil. X^'III.] PETITION INSUFFICIENT ON FACE. § 470 out tlie order^^ or other action of the state court thereon. ^- The filing of the petition and bond on removal must l)e with the clerk of the court of the county in which the venue is laid in the complaint filed in the case.'^^ The burden of establishing the facts alleged in the petition for removal is upon the party seeking such removal.'^ Petition insufficient on its face to show that the party is ' ' entitled ' ' to remove the suit, the state court may deny a removal ;^^ and under such a petition the court does lose, and is not called upon to surrender, its jurisdiction ;^^ for the rule that the filing of a petition and bond for removal terminates the state court's jurisdiction^' applies in those cases, only, in which by the facts alleged in the petition or sho\vn by the petition and the record, the party is ** entitled" to a removal.^** That is to say, the petition for removal must show on its face a removable cause, be- fore the state court is warranted in surrendering its jurisdiction;^'-^ and the fact that a state court accepts a petition and bond in a suit that is not removable, and proceeds no further in the cause, this wdll not oust the state court of jurisdiction.-*' Where the petition filed in the state court fails to allege the ser\dce of the written notice required,^^ the petition is insufficient, but the de- 11 Montgomery, City of, v. Postal is Steed v. Henry, 120 Ark. 583, Telegraph Cable Co., 218 Fed. 471. igQ S. W. 508 i.'Webb V. Southern R. Co., 235 ,, g^ Louis & S. F. R. Co. v. Fed. 578; Brady v. McCrary Co., Hodge (Okla.), 157 Pac. 60; Mis- souri, K. & T. R. Co. of Texas v J. B., 244 Fed. 602. Clerk's failure to mark filed the petition and bond, and the failure Smith (Tex. Civ. App.), 164 S. W of the judge of the court to act 885. upon them until defendants' i" See footnote 10, this section, answer is due, immaterial.— Brady is Pruitt v. Charlotte Power Co., V. McCrary Co., J. B., 244 Fed. 602. 155 j^ q 4^6, 81 S. E. 624. i3Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284. 14 Gibson v. Chesapeake & O. R. Co., 215 Fed. 24; Atlantic Coast ^^o Montgomery, City of, v. Postal Line R. Co. v. Woods, 151 C. C. A. Telegraph-Cable Co., 218 Fed. 471. 651, 238 Fed. 917. -n See, ante, § 547. 613 10 Pruitt V. Charlotte Power Co., 165 N. C. 416. 81 S. E. 624. §470 CODE PLEADING AND PRACTICE. [Pt. I, feet can be objected to and the defense asserted on motion to remove, only.-^ Where the allegation in the petition for removal respecting the amount in controversy is con- tradicted by the record on file in the state court depri\'ing the federal court of jurisdiction, the filing of a certified copy of the record in the federal district court does not deprive the state court of jurisdiction.-^ Order of reynoval by the state court is not necessary ;-* and an order of the state court transferring a cause to the federal district court has been said to not be appeal- able,-^ although a contrary doctrine has been held ;-^ yet an order denying removal is appealable.-" On petition and bond for removal on ground of diversity of citizen- ship,-*^ the allegations in the petition not being denied by the record, the state court must order the case removed to the federal district court.-** Removal denied by the state court, the original papers must remain on file in such state court, and the party petitioning for a removal, if he wishes to contest the correctness of the ruling and order, may procure a certi- fied copy of the record and cause the same to be filed in the federal district court and proceed therein.^" Where 22 B o o k i V. Pullman Co., 220 Mass. 71, 107 N. E. 418. 23 Bacon v. Iowa Cent. R. Co., 157 Iowa 493, 137 N. W. 1011. 24 Montgomery, City of, v. Postal Telegraph-Cable Co., 218 Fed. 471. 25 Ewert V. Minneapolis & St. L. R. Co., 128 Minn. 77, Ann. Gas. 1916D, 1047, 150 N. W. 224. Order directing certified copy of record to be made by the clerk, entered in the state court after it has ordered the removal of the suit to the federal district court, is not appealable, because the clerk is required to make such copy without the order of the court. — Mayo v. Dockeiy, 127 N. C. 1, 37 S. E. 62. 26 Lloyd V. Southern R. Co., 166 N. C. 24, 81 S. E. 1003, holding that, after docketing of cause in federal court, on reversal of order of removal the case stands as though there had been no order of removal. 27 Pruitt v. Charlotte Power Co., 167 N. C. 598, 83 S. E. 830. 28 As to diversity of citizenship as ground for removal and allega- tions as to, see, ante, §§ 448, 461. 29 Hyder v. Southern R. Co., 167 N. C'. 584, 83 S. E. 689 so Lawson v. Guthrie, 40 Okla. -f)8, 137 Pac. 1186. 614 Ch. XVIII.] FACTS FOR FEDERAL COURT. § 471 the state court refuses to surrender jurisdiction, the right of removal must be deteraiined as a matter of strict right on the record, as it appeared in the state court when the petition and bond for removal was presented and filed. ^^ § 471. Questions of fact — For federal. COURT. In the procedure following the filing of the peti- tion and bond for the removal of a suit from a state to the federal district court, in determining the sufficiency of the petition and the establishment by it and the record of a case entitling the petitioner to a removal, there is a well- marked cleavage in the respective duties and jurisdiction of the state court and the federal court. Some matters are to be determined in the first instance by the state court, while othors can be considered and determined by; the federal court, only. All questions or issues of fact presented by the petition for removal, are to be heard and determined by the federal court.^ Thus, diversity of citizenship, when alleged as a ground or cause for re- moval, is a question of fact, the hearing and determina- tion of which falls exclusively to the federal court;- and this is equalh^ true whether the question is raised and put in issue by the fact that the petition contradicts, in this respect, the complaint filed in the state court, or by the contentions of the opposite party.^ But the federal 31 Miller V. Soule, 221 Fed. 493. & S. F. R. Co. v. Hodge See, also, discussion and author- 157 Pac. 60. FED. — Hough v, ities, post, § 472. Societe Electrique Westinghouse 1 ARK.— Steed v. Henry, 120 de Russie, 231 Fed. 341; Chesa- Ark. 583, 180 S. W. 508. MASS.— peake & O. R. Co. v. Cockrell, 232 Long V. Quinn Bros., 215 Mass. U. S. 146, 58 L. Ed. 544, 34 Sup. 85, 102 N. E. 348; Dunbar v. Ct. Rep. 278. Rosenbloom, 119 N. E. 829. Issue as to facts alleged in peti- N. C. — Hurst V. Southern R. Co., tion may be raised by plea to the 102 N. C. 368, 78 S. E. 434; Lloyd jurisdiction or by answer to the V. Southern R. Co., 166 N. C. 24, petition for removal. — J ones v. 81 S. E. 1003; Cogdill v. Clayton, Casey-Hedges Co., 213 Fed. 43. 170 N. C. 526, 87 S. E. 338; Pat- 2 Miller v. Soule, 221 Fed. 493. terson v. Champion Lumber Co., 3 Hyder v. Southern R. Co., 167 94 S. E. 692. OKLA.— St. Louis N. C. 584, 83 S. E. 689. 615 §472 CODE PLEADING AND PRACTICE. [Pt.I, court is restricted as to such issues of fact as control the determination of the right of the petitioner to a removal ;■* and except those questions of fact depending upon the state of the record in the state court at the time when the petition and bond for removal were filed in the state court, w^hich are for the state court alone,^ The question of removability of a suit is ultimately for the federal court f and it has been said that the question whether the petition for removal complies with the Removal Act, is one for the federal court and not for the state court,' but this is denied in other cases. ^ § 472. Questions of law — For state court. The right of removal, on the record, is one of law for the state court ;^ and the question of the sufficiency of the petition for removal is one of law for the state court,- although it has been said to be a question for the federal and not the state court ;^ but the only question involved is whether, on the face of the record, a cause for removal has been made out.^ Where the allegations in the petition for removal are not denied, the only question presented •4 Hollifield V. Southern Bell Tel. & Tel. Co., 172 N. C. 714, 90 S. E. 996. 5 Munnss v. American Agricul- tural Chemical Co., 216 Mass. 423, 103 N. E. 859. Removal depends on record and state of pleadings in state court at time petition and bond for re- moval filed. — Munnss v. American Agricultural Chemical Co., 2 16 Mass. 423, 103 N. E. 859. Whether ad damnum clause re- duced to three thousand dollars (as to amount in controversy con- trolling right to removal, see, ante, § 455) or less before the filing of the petition for removal, is for the state court.— Munnss v. American Agricultural Chemical Co., 2 16 Mass. 423, 103 N. E. 359. c Webb V. Southern R. Co., 235 Fed. 578. T Cropsey v. Sun Printing & Publishing Assoc, 215 Fed. 132. 8 See, post, § 472, footnote 2. 1 Miller v. Soule, 221 Fed. 493. Whether case removable depends on the whole state of the record when the petition is presented, and determination as a right of removal must be first determined by the state court. — Miller v. Soule, 221 Fed. 493. 2 Landers v. Tracy, 171 Ky. 657, 188 S. W. 763; Patterson v. Cham- pion Lumber Co. (X. C), 94 S. E. 692. .'! See, ante, § 471, footnote 7. 4 Long v. Quinn Bros., 215 Mass. 85, 102 X. E. 348; Dunbar v. Rosen- bloom (Mass.), 119 N. E. 829. 616 ell. XVIII.] LAW FOR STATE COURT. § 472 is one of law as to whether a right of removal has been established;^ where removal opposed, state court must determine whether the party is "entitled" to remove.*^ The state court may also determine whether the facts alleged are a reasonable course or ground for removal.'^ In determining whether a case is presented for removal entitling the petitioner thereto, it is the duty of the state court to examine not only the petition for removal, but the entire record of the case as well,^ and must take as true the allegations in the complaint filed in the state court^ as well as the allegations in the petition for', removal.^® Citizenship of a corporation involved depend- ' ing upon the construction to be given to the act of incor-. poration, the state court may determine right of peti- tioner to remove.^ ^ The state court may also determine' when the answer of defendant due, under the laws of the state or the rules of court, where that is controlling on the right of removal, although the final decision of the question rests with the federal district court.^^ Fact ivhether removal effected by the proceeding there- for, being a matter depending upon the record made by filing the petition and bond in the state court, is a matter the state court may determine for itself ;^^ and when it appears from the face of the record that the suit has not been duly removed, the state court must retain jurisdic- tion.i^ 5 Jones V. Casey-Hedges Co., 213 n Cox v. Atlantic Coast Line R. Fed. 43. Co., 166 N. C. 652, 82 S. E. 979. Orr V. Baltimore & O. R. Co., 12 Stephens v. Ringling (S. C), 83 Misc. (N. Y.) 221, 145 N. Y. 86 S. E. 683. Supp. 378. 13 Hurst v. Southern R. Co., 162 TCogdill V. Clayton, 170 N. C. N. C. 368, 78 S. E. 434; St. Louis 526, 87 S. E. 338. & S. F. R. Co. v. Hodge (Okla.), s Missouri, K. & T. R. Co. v. 157 Pac. 60; United Brothers of Chappell, 206 Fed. 688. Friendship and Sisters of the !• P o w e 11 V. Southern R. Co. Mysterious Ten of Oklahoma v. (S. C), 96 S. E. 292. Delancy (Okla.), 157 Pac. 1150. 10 Chesapeake & O. R. Co. v. 1 4 Bacon v. Iowa Cent. R. Co., Cockrell, 232 U. S. 146. 58 L. Ed. 157 Iowa 493, 137 N. W. 1011. 544, 34 Sup. Ct. Rep. 278, Record made by filing petition 617 § 473 . CODE PLEADING AND PRACTICE. [Pt. I, Fraudulent joinder of parties defendant to prevent re- moval, being alleged in the petition for removal, the state court may pass upon the proper joinder of the defen- dants,^^ and the sufficiency of the petition ;^^ and where the fraud is alleged in general terms, it seems to be a matter exclusively for the state court.^"^ <§ 473. 5. Filing certified copy of eecord in fed- eral COURT. On the removal of a suit from a state court to the federal district court, a certified copy of the record in the state court must be filed in the federal court within thirty days from the date of the filing of the bond and petition on removal.^ The provision of the Judicial Code in this regard is to be strictly construed, and a filing of a certified copy of the record more than thirty days after the filing of the petition and bond on removal will be too late, even though the state court does not act on such petition and bond at the time they are filed ;- on the other hand, the provision has been said not to be mandatory, and that the matter is within the discretion of the federal court ;^ but this holding is thought not to be in harmony with the letter of the Judicial Code, and the strict con- struction to be given to it. The transmission of the certi- fied record in the state court to and filing the same in the for removal can not be questioned i7 Pruitt v. Charlotte Power Co., by state court— Bacon v. Iowa 165 N. C. 416, 81 S. E. 624. Cent. R. Co., 157 Iowa 493, 137 i Federal Judicial Code, § 29, 5 N. W. 1011. Fed. Stats. Ann., 2d ed., p. 235. 15 Carland & Co., J. C, v. Burke, Petition and bond filed in the 197 Ala. 435, 73 So. 10; HoUifleld state court, formerly perfected the V. Southern Bell Tel. & Tel. Co., removal of the cause, unless the 172 N. C. 714, 90 S. E. 996. petition, in connection with the 16 Lloyd V. Southern R. Co. 166 record, showed the case to be a N. C. 24, 81 S. E. 1003. nonremovable one. — S t e v e n s v. Facts sufficient to show fraudu- Illinois Cent. R. Co., 192 Fed. 956. lent joinder issue to be.de ter- 2 Waverly Stone & Gravel Co. v. mined by federal court— Lloyd v. Waterloo, C. F. & N. R. Co., 239 Southern R. Co., 166 N. C. 24, 81 Fed. 561. S. E. 1003. 3 Chase v. Erhardt, 198 Fed. 305. 618 1 cll.XN'III.] TIME TO PLEAD — REMAND. §§4(4,475 federal court is the duty of the party removing,^ not of the clerk of the state court;"' but after the petition and Ijond have been filed in the state court the opposing party may at once, or at any time mthin thirty days from the date thereof, procure a certified copy of the record in the state court and file the same in the federal court, and the latter court may require the removing party to plead.^ § 474. 6. Time to plead in federal court — Na- ture OF PLEA. The federal Judicial Code^ provides that the certified copy ** being entered within thirty days as aforesaid in the district court of the United States,- the parties removing the said cause shall, within thirty days thereafter, plead, answer, or demur, to the declaration or complaint in said cause." The defendant is entitled to file any kind of a plea that he is advised, including a plea in abatement^ for want of proper service of process in the state court,'* as well as a demurrer or answer on the merits. § 475. Eemand of cause^ — In general. The federal Judicial Code provides that if, in any suit removed from 4 Federal Judicial Code, § 29, 5 i Construction of statutory pro- Fed. Stats. Ann., 2d ed., p. 235. vision seems to be without diffl- 5 Hatcher's Adm'x v. Wadley, culty, though there is manifest 84 Fed. 913. some misapprehension of the « Consolidated Traction Co. v. powers and duties of the federal Guarantors' Liability & Indemnity district court. The federal Judicial Co., 78 Fed. 657; affirmed, Bryar Code, §37, 5 Fed. Stats. Ann. 2d V. Campbell, 33 C. C. A. 236, 90 ed., p. 398, provides for two things: Fed. 690, 177 U. S. 649, 44 L. Ed. (1) Where a suit is improperly 926, 20 Sup. Ct. Rep. 794. commenced in the federal district 1 § 29, 5 Fed. Stats. Ann., 2d ed., court, and (2) where a suit is p. 235. "wrongfully or improperly" r e- -' See, ante, § 473. moved from a state court into that •! As to plea in abatement, see, court; the provision reading: "If ante, § 232. in any suit commenced in the dis- » Garvey v. Compania Metalur- trict court, or removed from a gica Mexicana, 222 Fed. 722; Cain state court to a district court of v. Commercial Pub. Co., 232 U. S. the United States, it shall appear 124, 58 L. Ed. 534, 34 Sup. Ct. Rep. to the satisfaction," etc., as sub- 2S4. stantially quoted in the text to 619 §476 CODE PLEADING AND PRACTICE. [Pt.I. a state court to a district court of the United States, it shall appear to the satisfaction of said district court, at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dis- pute or controversy properly within the jurisdiction of said district court, or that the parties thereto have been improperly or collusively made or joined, either as plain- tiffs or defendants, for the purpose of creating a case removable under the Judicial Code, the said district court shall proceed no farther therein, but shall remand it to the court from which it was removed, and shall make such order as to costs as shall be just.^ Where a motion to remand is made it is the duty of the federal district court to consider and determine (1) whether the proceeding in the state court was a suit or controversy to which the judicial power of the United States extends ; (2) if such a suit or controversy, was it removable to the district court of the United States ; and (3) if removable, was it in fact removed.^ §476. On whose motion — Court's own motion. Whenever a suit has been improperly removed from a state court to the federal district court, it must be re- manded,^ either (1) on the court's own motion, or (2) on this section, "the said district court shall proceed no further therein, but shall dismiss the suit [where commenced] or remand [where removed] it," etc. It is submitted that under all known rules of statutory construction, as well as the ordinary construction of English sentences, the word "dismiss" relates to and affects '"any suit commenced" only, and has no reference to suits "wrong- fully or improperly" removed into the district court, — which are to be remanded; and that the federal district court has no jurisdiction or power, under this statutory pro- vision, to dismiss a suit wrong- fully or improperly removed thereto. For this reason I omit the word "dismiss" from my catch- line. 2 Federal Judicial Code, § 37, 5 Fed. Stats. Ann., 2d ed., p. 398. 3 South Dakota Cent. R. Co. v. Chicago, M. & St. P. R. Co., 73 C. C. A. 176, 141 Fed. 578. 1 Pollard v. Dwight, 8 U. S. (4 Cr.) 421, 2 L. Ed. 666. See: Ayers V. Western R. Corp., 48 Barb. (N. Y.) 140, 32 How. Pr. 351; re- versed on another point, 45 N. Y. •"•60; Colcord v. Wall, 2 Miles (Pa.) 620 Ch. XVIII.] REMAND MOTION OF PARTY. § 477 motion of one of the parties thereto. The court, of its own motion may, and should, remand a cause whenever the jurisdiction of that court does not appear upon the face of the papers before it,- or that the cause was a removable one f but the court will not, of its own motion, seek for formal defects, inquire into the regularity of the issue of process or the sufficiency of its service, and the like.^ Whenever, on the face of the record, a want of jurisdiction plainly appears, either of the parties to the action or of the subject-matter involved therein, it is the duty of the federal district court to remand the cause, of its own motion.^ § 477. On motion of party. Either party to a suit removed into the federal court may move that it be remanded to the state court. One of two or more joint defendants may move to remand where it is made to appear that the cause was not removable because of a want of a separate controversy.^ A plaintiff who de- scribes himself in the complaint filed in the original suit in New York, against a citizen of New York, as "of said 462; State ex rel. Hodson v. Cir- 2 Sup. Ct. Rep. 424; Cameron v. cuit Judge, 33 Wis. 132. Hodges, 127 U. S. 322, 32 L. Ed. 2 See: Kaeiser v. Illinois Cent. 132, 8 Sup. Ct. Rep. 1154. R. Co., 6 Fed. 1; Dwyer v. Peshall, Improperly removed, though re- 32 Fed. 497; Keeney v. Roberts, movable, of its own motion federal 39 Fed. 629; Indiana v. Tolleston district court should remand of its Club, 53 Fed. 18; Brath v. Coles, own motion. — Waverly Stone & 9 C. C. A. 81, 19 U. S. App. 646, Gravel Co. v. Waterloo, C. F. & 60 Fed. 4 6 6; International & N. R. Co., 239 Fed. 651. G. N. R. Co. V. Hoyle, 79 C. C. A. 3 Crehore v. Ohio & M. R. Co., 128. 149 Fed. 180; Harrington v. 131 U. S. 240, 33 L. Ed. 144, 9 Sup. Great Northern R. Co., 169 Fed. Ct. Rep. 692. 714 ; Charrion v. Romart Mfg. Co., 4 Mackay v. Uinta Development 236 Fed. 1011; Waverly Stone & Co.. 229 U. S. 173, 57 L. Ed. 1138, Gravel Co. v. Waterloo, C. F. & 33 Sup. Ct. Rep. 638. N. R. Co., 239 Fed. 651; Morgan 5 Indiana v. Tolleston Club, 53 V. Gay, 86 U. S. (19 Wall.) 81, 22 Fed. 18. L. Ed. 100; Pittsburg, C. & St. L.R. i Thompson v. Chicago, St. P. Co. V. Ramsey, 89 U. S. (22 Wall.) & K. C. R. Co., 60 Fed. 773; Inter- 322, 22 L. Ed. 823; Hilton v. Dick- national & G. N. R. Co. v. Hoylc, inson, 108 U. S. 165, 27 L. Ed. 688, 79 C. C. A. 128, 149 Fed. 180. 621 §§478,479 CODE pleading and practice. [Pt. J, New Haven,'* may move to remand the cause, and will not be estopped, by such, description, from showing that he is a citizen of New York.^ A cause may be remanded on the motion of the party removing the suit from the state court where it is made to appear to the federal district court that it has no jurisdiction as contradistinguished from merely defective jurisdiction.^ § 478. Grounds for remand — In general. A cause or ground for remand is (1) any reason why the cause should not have been removed from the state court; (2) a development in the federal court depriving it of jurisdic- tion of (a) the parties or (b) the subject-matter of the controversy; (3) failure to comply, in the removal pro- ceedings, with mandatory provisions of the Removal Act as embodied in the federal Judicial Code, and (4) irregu- larities affecting (a) the jurisdiction of the federal court or (b) a substantial interest of the opposite party and (c) which are not amendable in the federal court. Some concrete illustrations of these rules may be assistful to the practitioner, but space will not peraiit of an exhaus- tive collection of the various instances, of the classes or kinds of causes to be found in the adjudicated cases, even those decided since the adoption of the federal Judicial Code. <^ 479. Causes remanded when. A cause re- moved from the state court to the federal district court of the district will be remanded where the affidavit for re- moval, on its face, shows an improper removal;^ an amendment in the federal court so as to eliminate a fed- eral question ;2 because action under federal employers' 2Edgerton v. Stain, 91 Fed. Torrence v. Shedd, 144 IT. S. 527, 932. 36 L. Ed. 528, 12 Sup. Ct. Rep. 726. 3 See: Wabash R. Co. v. Bar- i Cameron v. Hodges, 127 U. S. hour, 19 C. C, A. 546, 43 U. S. App, 322, 32 L. Ed. 132, 8 Sup. Ct. Rep. 102, 73 Fed. 513; Mansfield, C. & 1154. L. M. R. Co. V. Swan, 111 U. S. 379, 2 Fischer v. Star Co., 227 Fed. 28 L. Ed. 462, 4 Sup. Ct. Rep. 510; 955. 622 Ch. XVIII.] CAUSE REMANDED WHEN. § 479 liability act,' and for that reason not removable ;^ because written notice of petition and bond not given^ as re- quired,^ although copies of the petition and bond may have been served;^ citizenship of parties not sufficiently disclosed by the certified copy of the record in the state court, either as to (a) when the action was brought or (b) when the petition for removal was filed ;^ demurrer after removal sustained in the federal district court to one of the causes of action and thus reducing the amount in controversy between the parties below the amounf* necessary to give the federal court original jurisdiction ;^* dispute or controversy not properly within jurisdiction of federal district court ;^^ diversity of citizenship alleged but not established,^- or being gi^ound of removal the fed- eral district court has no jurisdiction of the controversy ;^^ doubt as to jurisdiction of the federal district court,^* where it is a substantial doubt ;i^ doubt as to whether the cause arose under the laws of the United States ;^'5 doubt ;is to whether suit properly removed,^^ or as to its remov- ;ibility,^^ or as to party's right of removal i^*' doubt as to ." Patton V. Cincinnati, N. O. & is Gates v. Allen, 149 U. S. 451, T. P. R. Co., 208 Fed. 29. 37 L. Ed. 804, 13 Sup. Ct. Rep. 883,' ■1 Federal Judicial Code, § 28, 5 977. Fed. Stats. Ann., 2d ed., p. 17. 14 Western Union Tel. Co. v. See, also, ante, § 439. Louisville & N. R. Co., 201 Fed. 5 Goins V. Southern Pac. Co., 198 932; Harley v. Fireman's Fund Fed. 432; Leland v. Northwestern Ins. Co., 245 Fed. 471. Stevedore Co., 209 Fed. 626. Contra: Caldwell County Drain- 6 See, ante, § 457. age Dist. No. 19 v. Chicago, M. & 7 Loland v. Northwestern Steve- St. P. R. Co., 198 Fed. 253. dore Co., 209 Fed. 626. ir. Western Union Tel. Co. v. 8 Jackson v. Allen, 132 U. S. 27, Louisville & N. R. Co., 201 Fed. 33 L. Ed. 249, 10 Sup. Ct. Rep. 9. 932. 9 See, ante, § 455. ic Orr v. Baltimore & O. R. Co., 10 Jones v. Western Union Tel. 242 Fed. 608. Co., 233 Fed. 301. it Hansen v. Pacific Coast As- 11 Ayers v. Wiswall, 112 U. S. phalt Cement Co., 243 Fed. 283. 187, 28 L. Ed. 693, 5 Sup. Ct. Rep. is Mississippi River Power Co., 90. In re, 241 Fed. 194. 12 Sullivan v. Loyd, 213 Fed. lo Strother v. Southern Pac. R. 275. Co., 220 Fed. 731. 623 §480 CODE PLEADING AND PRACTICE. f' [Pt. I, whether petition was filed in time,^*' because of state court's extension of time in which to plead without fixing a definite date therefor; fraudulent joinder alleged as ground of removal, and the liability of one of the defen- dants is fairly debatable ;-^ neither party to the action a resident of the state when the suit was commenced ;-- not a proper removal of the suit, although the cause is a removable one ;-^ on any ground on which the removal of the suit could have been attacked in the state court;-* presence of other parties in the suit being necessary to a determination of the controversy;-^ want of jurisdiction in the federal district court because of lack of diversity of citizenship, where the ground of removal is prejudice and local influence,-^ and the like. <§ 480. Causes not remanded when. Among the class or kinds of cases in which a cause removed from a state court to the federal district court of the district will not be remanded may be given the following : Because the state court transmitted the original papers instead of certified copies thereof,^ as required by the federal Ju- dicial Code ;- because the title to the land sought to be condemned under the power of eminent domain had been transferred to a nonresident before the condemnation proceedings were commenced, in the absence of a shomng of collusion and fraud, on the alleged ground that the sole purpose of such transfer was to secure a forum in which more liberal compensation as damages might be obtained than could be secured in the state court f because the bill in the state court does not state an equitable cause 20 Kelly V. Virginia Bridge & 24 Cropsey v. Sun Printing & Iron Co., 203 Fed. 566. Publishing Assoc, 215 Fed. 132. 21 McGraney v. Butte Mines Co., 25 Sullivan v. Lloyd, 213 Fed. 275. 199 Fed. 671. 26 Knapp v. Troy & B. R. Co., 87 22 O'Neil V. Birdseye, 244 Fed. U. S. (20 Wall.) 117, 22 L. Ed. 328. 254. See, ante, § 450. 23 Waverly Stone & Gravel Co. i Miller v. Soule, 221 Fed. 493. V. Waterloo, C. H. & N. R. Co., 239 2 See, ante, § 473. Fed. 561. 3Bensel, In re, 124 C. C. A. 251, 624 ch. XVIII.] TIME OF REMAND. § 481 of action cognizable in a federal court of equity, where a cross-bill, which has been filed in the suit, does ;^ consent or stipulation of the parties can not give the federal dis- trict court jurisdiction of a removed cause,-^ and consent or stipulation can not give that court jurisdiction to re- mand a cause ;" defect in petition for removal in not alleg- ing organization of a corporation, which defect may be cured by amendment after judgment;'^ doubt as to the jurisdiction of the federal district court,"* but the weight of authority and the better reason to the contrary f mere irregularities in the proceeding for removal whicli can be amended, and which have worked no harm to the oppo- site party ;^° removable on the ground of a separable con- troversy, although the petition was apparently not drawn on that theory, ^^ and the like. § 481. Time of remand. The federal Judicial Code especially pro\ddes that, on proper cause therefor being shown, a cause removed to the federal district court from a state court may be remanded to the state court ''at any time after such suit has been removed."^ Applying the statutory provision regulating remand, the courts have held that the remanded order should be made as soon as it is called to the attention of the federal district court that the condition of the record on removal does not show facts essential to confer jurisdiction on the federal court.- After an amended complaint in the federal district court and an answer thereto on the merits, if it appears to the 206 Fed. 369, affirming Ashokan 9 See, ante, § 479, footnotes 14 Dam, In re, 190 Fed. 413. and 15. iBaum V. Longwell, 200 Fed. lo Cropsey v. Sun Printing & ^^^- Publishing Assoc, 215 Fed. 132. 5 See, ante, §§ 437, 441. 6 Lawton v. Blitch, 30 Fed. 641. '' ^^^^° ^- American Surety Co., 7 Fentress Coal & Coke Co. v. ^^^ ^®**- ^'^^• Elmore, 153 C. C. A. 254, 240 Fed. ^ See, ante, § 478. 328. 2 Olds' Wagon Works v. Bene- s Caldwell County Drainage Dist. diet, 14 C. C. A. 285, 32 U. S. App. No. 19 V. Chicago, M. & St. P. R. 116, 67 Fed. 1. Co.. 198 Fed. 253. I Code PI. and Pr. — 40 g25 §481 CODE PLEADING AND PRACTICE, [Pt. I, court that no federal question is involved, the ground on which removal was had, the cause will be remanded.^ At any time during the pendency of the suit in the federal district court, when it is manifest from the record that the cause was improperly removed it will be remanded, — e, g., where it does not involve a dispute or controversy properly \\dthin the jurisdiction of the federal district court.^ Even during the trial of the cause in the federal district court, it is the duty of that court to remand the cause where it is made to appear from the testimony, in connection with the record, (1) that the cause was im- properly removed, or (2) that the federal district court is without jurisdiction.^ Delay of over a year after a cause has been removed from a state court before filing a motion to remand on the ground that the petition for removal was not filed in time in the state court, the motion to remand comes too late;^ where there was a delay for a like time, and the cause had been transferred to the equity docket of the federal district court and re- ferred to a special master, it was held that the motion to remand, for defects not jurisdictional, came too late ;"' and where an objection to the removal of a cause from tlie state court was made in the federal court after the testi- mony had all been taken, and the cause was ready for hearing, and nearly three years after the removal from the state court, it was held to be too late.* ■5 Charrion v. Romort Mfg. Co., L. J. 12, Fed. Cas. No. 7596; Hartog 236 Fed. 1011. v. Memory, 23 Fed. 835; Collins ■lAyers v. Wiswall, 112 U. S. v. Wellington, 31 Fed. 246; Rich- 187, 28 L. Ed. 693, 5 Sup. Ct. Rep. mond & D. R. Co. v. Findley, 32 90; Cameron v. Hodges, 127 U. S. Fed. 641; Blythe v. Hinckley, 84 322, 32 L. Ed. 132, 8 Sup. Ct. Rep. Fed. 216. 1154. 6 Miller v. Kent, 18 Fed. 561. 5 See: Ryan v. Young, 9 Biss. 7 Wyly v. Richmond & D. R. Co., 63, Fed. Cas. No. 12188; Deakin 63 Fed. 487. V. Lea, 11 Biss. 27, Fed. .Cas. No. s French, Trustee, v. Hay, 89 3695; Dennistoun v. Draper, 5 U. S, (22 Wall.) 238, sub n o m. Blatchf. 336, Fed. Cas. No. 3804; French, Trustee, v. Stewart, 22 Kain v. Texas Pac. R. Co., 3 Cent. L. Ed. 854. 626 C'h. XV^IIL] COSTS ON REMAND, § 482 After judgment in the federal district court it has been said that a cause can not be remanded to the state court,^ although the contrary has been held where the amount in controversy was below the amount conferring original jurisdiction on the federal district court ;i'* but the cause may be remanded after trial and verdict, when a motion to remand was made during the trial and the court re- served its decision/^ such a motion to remand being equivalent to a special plea to the jurisdiction of the federal district court. ^- § 482. Costs on remand. The federal Judicial Code provides that on remand the federal district court ''shall make such order as to costs as shall be just."^ The courts have said that on remand by the federal court to which removed, the costs incurred in such federal court should be paid by the party wrongfully or improperly causing the removal,- and the court may properly allow an attorney's docketing fee of ten dollars.^* In other words, the party wrongfully or improperly removing the cause must pay all costs from the time of the removal from the state court.^ Hence it follows that in a case where the cause, after removal, is carried from the fed- Muhlenburg County v. Citizens' i See, ante, § 475. Nat. Bank, 65 Fed. 537. 2 K a n s a s City So. R. Co. v. Order after final decree the Su- Prunty, 66 C. C. A. 163, 133 Fed. preme Court of the United States 13; Pullman Palace-Car Co. v. remanding cause to the state court Washburn, 66 Fed. 790; affirmed is said to be permissible, where in Washburn v. Pullman Palace- the order of remand is made be- Car Co., 21 C. C. A. 598, 76 Fed. fore the end of the term of the 1005; Mansfield, C. L. M. R. Co. Supreme Court. — A y e r s v. Wis- v. Swan, 111 U. S. 379, 28 L. Ed. wall, 112 U. S. 187, 26 L. Ed. 693, 462, 4 Sup. Ct. Rep. 510. 5 Sup. Ct. Rep. 90. 3 Western Union Tel. Co. v. 10 Lazensky v. Supreme Lodge Louisville & N. R. Co., 208 Fed. Knights of Honor, 32 Fed. 417. 581; Walsh's Admr. v. Joplin & 11 See Richmond & D. R. Co. v. P. R. Co., 219 Fed. 345. Findley, 32 Fed. 641. 4 Walker v. Collins, 167 U. S. 12 Mansfield, C. & L. M. R. Co. 57, 42 L. Ed. 76, 17 Sup. Ct. Rep. V. Swan, 111 U. S. 379, 28 L. Ed. 738, reversing 8 C. C. A. 1, 59 Fed. 462, 4 Sup. Ct. Rep. 510. 70. G27 §482 CODE PLEADING AND PRACTICE. [I*t. J, eral district court to the Supreme Court of the United States, where the cause is reversed and remanded to the district court, with directions to that court to remand to the state court, the party procurini>' the removal nuist pay all the costs in the federal district court and also in the Supreme Court of the United States,^ except in those cases in which both parties are equally at fault, when the costs may be equally divided,^ or allowed to neither partyJ 5 Hancock v. Holbrook, 112 U. S. 469, 30 L. Ed. 435, 7 Sup. Ct. Rep. 229, 28 L. Ed. 714, 5 Sup. Ct. Rep. 287. 115, reversing 4 Woods 52, 9 Fed. 7 Parkersburg First Nat. Bank 353. V. Prager, 63 U. S. App. 703, 34 6 Peper v. Fordyce, 119 U. S. C. C. A. 51, 91 Fed. 689. 628 PART II. ACTIONS. CHAPTER I. GROUNDS OF ACTION AND CONDITIONS PRECEDENT. § 483. In general. § 484. Action distinguished from the pleading in an action, § 485. Action commenced when. § 486. Action deemed ended when. § 487. Condition precedent to action — In general. § 488. Arbitration. § 489. Conciliation. § 490. Demand and refusal — In general. § 491. Sufficiency of demand and objection. § 492. When demand not necessary. §493. Notice. §494. Tender. § 495. Sufficiency of averments of. § 496. Acts and omissions constituting cause of action — In general. § 497. Act of God. § 498. Acts done with consent — ^Volenti non fit injuria. § 499. When principle does not apply. § 500. Breach of contract. § 501. Breach of trust. § 502. Conspiracy not executed. § 503. Criminality of act. § 504. Damages incident to public improvement or work § 505. Declaration of right without other relief — In general. § 506. Exceptions to the rule. §507. English practice. § 508. Destruction of property to prevent the spread of fire. § 509. Exercise of lawful rights in use of property. § 510. Exercise of riglits with bad intent. § 511. Fraud without injury. 629 §§ 483, 484 CODE pleading and practice. [Pt. II, § 512. Illegal or immoral contracts. § 513. Inducing breach of contract. § 514. California doctrine. § 515. Procuring payment to self of money known to belong to another, § 516. Public injury. § 517. Perjury and subornation of perjury. § 518. Right of action as dependent upon relative values. § 519. Trivial injuries not invading fundamental right. § 520. Frivolous and collusive actions. § 521. Unnecessary and vexatious actions. § 483. In GENERAi,. "We have already defined an *' action"^ and a ''cause of action, "^ stating the elements of the latter, and have drawn the distinction between an action and a cause of action. We have also indicated the general classes and sub-classes into which all actions are divided,^ under the reformed procedural codes, with a brief reference to that general class of injuries or wrongs for which no action lies, because they are regarded as damnum absque injuria."* It remains in this place to discuss briefly the commencement and pendency of actions; the conditions precedent to the commencement of actions ; the acts and omissions for which actions may be brought and maintained; persons entitled to sue and persons liable; frivolous, collusive and unnecessary actions, and the like. In the chapters immediately fol- lowing we will discuss : (1) The character of and nature and forms of actions ;° (2) the theory of the case, its necessity and effect;^ and (3) the election of remedies, giving applications in various particular instances.'^ § 484. Action distinguished from the pleading in an ACTION. It is to be remembered that there is a marked distinction between an action and the pleading in an 1 See, ante, § 3. 6 See, post, §§ 522-527. 2 See, ante. § 5. " 6 See, post, §§ 528-534. 3 See, ante, § 4. 7 See, post, §§ 535-574. 4 See, ante, § 6. 630 (h. I.] ACTION AND PLEADING DISTINGUISHED. § 484 action, which consists in the fact that the pleadings show the nature of the demand, and the defense ; or, in common terms, the pleadings are the complaint and answer,^ the formal declarations of the parties to the action,^ which are fully discussed later on in this treatise;^ while the action is the history of the whole cause, including : 1. The complaint, which names the parties, and states the injury suffered ; 2. The process, which brings the party into court to answer as to those injuries; 3. The answer of defen- dant, which admits, or denies, or avoids, etc. ; 4. The trial, wherein the nature of the demand and defense are pre- sented by legal proofs; 5. The judgment, wherein the court allows or refuses the remedy asked; 6. The execu- tion, by which the legal rights of the parties are ol^tained. It is provided by the Code that ' ' the pleading on the part of the plaintiff shall be the complaint, and demurrer to defendant's answer; and on the part of the defendant, demurrer to the complaint, and answer. ' '^ Since the stat- utes of our state have in express terms defined what tlie pleadings are, it requires no reference to the text-books on the subject for further definition. It is also provided by statute that ' ' when a defendant seeks affirmative relief against any party, relative to or depending upon the con- tract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint, which must be served upon the parties affected thereby if they have appeared, and if they have not appeared in the action a summons upon the cross-complaint must l)o issued and served upon them";-'' so that ])arti('s liti'^aiit may settle all questions of difference betwe(>n tlicr.u so 1 Burr. L. Diet. 38. Proc. 2d ed.. §422; Cciionlida.ea 2 Kerr's Cyc. Cal. Code Civ. Supp. 1906-1913, p. 1441. Proc, § 420. ,-. Kerr s Cyc. Cal. Code C i v. :^ See, post, part IV. Proc, 2d ed.. § 442; Biennial Supp. 4 Kerr's Cyc. Cal. Code Civ. 191.'), p. 3086. 631 § 485 CODE PLEADING AND PRACTICE. [Pt. II, far as is practicable, in one action, and not litigate by piecemeal. Interminable litigation is not favored either by our legislatures or by our courts, the decisions being numerous and pointed on this subject. It will be our pur- pose, therefore, to consider the subject of actions herein: reserving the consideration of the pleadings for future chapters, where the various steps will be considered under their appropriate heads. § 485. Action commenced when. The commencement, prosecution and termination of actions is treated in a later chapter, but it is pertinent to remark in this place that in California an action is commenced by filing a com- plaint with the clerk of the court. ^ The clerk of the court endorses on the complaint thus filed the day, month and year that it is filed, and at any time within one year there- after the plaintiff may have a summons issued,- which may be served at any time mthin three years, in any one of the methods required by the code.^ This is an anom- alous method of commencing an action, and one not to be commended. It must be conceded that this provision of the California code — which professes to abolish all fic- tions — involves a fiction, and the rule is an arbitrary one. There is in truth and in fact no cause of action actually pending until service of process has been effected, al- though the time of the commencement of the action may be made to relate back to the date of filing the complaint and issuing the summons, where these are synchronous acts, to prevent the running of the statute of limitations against the cause of action. In all other jurisdictions ha\'ing the reformed system of judicature the issuance and service of a summons is essential to the commence- ment of an action. In some of the states, as in New York, an action is commenced by the service of the summons simply, the complaint being served later and within rule. 1 See Kerr's Cyc. Cal. Code Civ. 2 Id., § 406. Proc, § 405. 3 See, ante, §§ 181-206. 632 < Cassidy v. Slemons, 41 Mont. 15 Onondaga Nation v. Thacher, 426, 109 Pac. 976. 29 Misc. (N. Y.) 428, 61 N. Y. Demand as a condition prece- Supp. 1027; affirmed, 53 App. Div. dent to an action to recover on a 561, 65 N. Y. Supp. 1014, 169 N. Y. promise to pay on demand tlie 584, 596, 62 N. E. 1098. debt of anotlier. See note, 34 ic Wampum keeper, in violation L. R. A. (N. S.) 154. of his official duty, having sold '■> Mullally V. Townsend, 119 Cal. wampum belts, which were after- 51, 50 Pac. 1066. wards purchased by defendant in 10 Florsheim v. Palmer, 99 111. good faith, a demand upon defen- 559. dant for the delivery and surrender 11 Pierce v. Whiting, 63 Cal. 538, of the wampum belts was held to 541. be a necessary condition prece- i2Landis v. Saxton, 105 Mo. 486, r''ent to a suit in equity for their 24 Am. St. Rep. 403, 16 S. W. 912. recovery.— Onondaga Nation v. G40 ch. I.] BUmCIENCY OF DEMAND — OBJECTION. § 491 "§. 491. Sufficiency of demand and objec- tion. A demand being requisite it is sufficient wliere made in any language plainly indicating to the party tljat lie is required (1) to perform a duty, or (2) to dis- cbarge an obligation, to wbicli duty or obligation the demand refers.^ The demand need not be in writing,^ but it must be made within the period of the statute of limitations against the maintaining of actions.^ Appear- ance at a time and place where the debtor has notified his creditor that he will make payment, for the purpose of receiving the money, has been held to be a sufficient demand — or equivalent to a demand — by the creditor,'* Commencement of a suit has also been said to be a suffi- cient demand for the payment of money payable on demand,^ the summons constituting all the demand that is necessary,^' except in those cases in which a specific demand is necessary to the right of action.'^ Authority of the person making the demand to do so, if excepted to, objection must be made at the time of the demand.^ A de- mand made by one having a receipt in full, from the proper authority, in discharge of a liability, is as much a personal demand as though made in person by the party Thacher, 29 Misc. (N. Y.) 428, 61 national Lumber Co., 33 Wash. N. Y. Supp. 1027; affirmed, 53 App. 181, 73 Pac. 1113. Div. 561, 65 N. Y. Supp. 1014, 169 Licet saepuis requisitus is a suf- N. Y. 584, 596, 62 N. E. 1098. ficient demand in an action 1 Mullally V. Townsend, 119 Cal. brought (1) for the recovery of a 51, 50 Puc. 1066. debt or (2) the performance of a 2Meetz V. Mohr, 141 Cal. 672, 75 mere duty. — Hobart v. Hilliard, 28 Pac. 298. Mass. (11 Pick.) 143; Fletcher v. 3 See, ante, § 490, footnote 12. Cummings, 33 Neb. 793, 51 N. W. 4 Schlimbach v. McLean, 178 I'*'*- N. Y. 600, 70 N. E. 1108, affirming ^ Reidebaugh v. Grove, 2 Ky. L. 83 App. Div. 157, 13 N. Y. Ann. Cas. Rep. 223. 1)0, 82 N. Y. Supp. 516. ^ Pope v. Hays, 1 Mo. 450. •'"> Florsheira v. Palmer, 99 111. See, also, ante, § 490, footnotes App. 559; Reideaugh v. Grove, 2 2 et seq. Ky. L. Rep. 223; Hopkins v. Inter- 8 Baxter v. McKinlay, 16 Cal. 77. I Code PI. and Pr.— 41 (]4]^ §492 CODE PLEADING AND PRACTICE. [Pt. II, signing the receipt f and a demand after suit brought for the replevying of personal property, made upon a third person, who is afterwards brought in as a party to the action, is a sufficient demand as to such third person. ^*^ Objection to a demand on one ground waives all other grounds of objection not named ;^^ an objection that no demand was made before suit was commenced, must be set up by w^ay of defense, and be accompanied by a tender.^^ §492. When demand not necessary. "We have already seen that the demand is for the benefit of the defendant;^ hence where the defendant denies the duty or the contract or obligation,- or where it is apparent that a demand would have been disregarded or unavail- ing, a demand is not a condition precedent to the com- mencement of an action.^ Where a defendant is brought 9 Nash V. Union Mut. Ins. Co., 43 Me. 343, 69 Am. Dec. 65. 10 McCarthy v. Hetzner, 70 111. App. 480. 11 Ward V. Flood, 48 Cal. 47, 17 Am. Rep. 405. 12 Harrison v. Lakenan, 189 Mo. 581, 88 S. W. 53. 1 See, ante, § 490, footnote 1. 2 McGuire v. Williams, 123 N. C. 349, 31 S. E. 627. Agent or attorney denying lia- bility for money collected for plaintiff, demand not necessary. — Cox V. Delmas, 99 Cal. 120, 33 Pac. 836. Denial both of possession and value of property, but admitting its loss or escape, demand not necessary. — O r e g o n Imp. Co. v. Seattle Gas Light Co., 4 Wash. 634, 30 Pac. 672. Denial of relation on which action based, no demahd neces- sary. — Parrott v. B y e r s, 40 Cal. 622. 3 O'Connor v. Dingley, 26 Cal. 19; Parrott v. Byers, 40 Cal. 622; Cox V. Delmas, 99 Cal. 120, 121, 33 Pac. 836; California Cured Fruit Assoc. V. Stelling, 141 Cal. 713, 719, 75 Pac. 320; Ward v. Montgomery, 67 111. App. 346; Whit comb v. Stringer, 160 Ind. 82, 66 N. E. 443, 63 N. E. 582, 64 N. E. 636; Daven- port V. Ladd, 38 Minn. 545, 38 N. W. 622; Glenn v. Kittanning Brewing Co., 259 Pa. St. 510, L. R. A. 1918D, 738, 103 Atl. 340; Burrows v. McCalley, 17 Wash. 269, 49 Pac. 508; Kimball v. Farmers' & Merchants' Bank, 50 Wash. 610, 97 Pac. 748. New issue of stock voted by directors of corporation and ab- sorbed by themselves without affording stockholders generally an opportunity to take it up in pro- portion to their holdings, the con- trol of the corporation being in- volved, stockholder need not demand action by the corporation 642 Ch. I.] DEMAND NOT NECESSARY WHEN. § 493 into court by his adversary, he is relieved of the duty to make the demand which would be required of him if he were the moving party.^ There are many other instances in which a demand is not prerequisite to suit, among which are: Demand for price of goods is not necessary in an action for the fraudulent purcliase of such goods f for money belonging to an estate, receipt w^hereof was wrong ab initio f for money paid under a contract which defen- dant has elected to rescind ;'^ for the payment of unliqui- dated damages against sureties on bond, in an injunction suit, stipulating therefor;^ for return of property sold on execution under a judgment afterwards reversed, before bringing action for damages for the property wrongfully taken f for return of property, where defen- dant sets up title in himself;^" on failure to carry out agreement to assume and pay debt of another ;^^ where defendant has money wdiich he ought to pay plaintiff;^- where money is due under a contract^ ^ or was paid under a void contract ;^^ where the obligation is complete,^^ and the like. § 493. Notice. A notice may or may not be a con- dition precedent to the commencement of an action, de- pending upon (1) the nature of the cause of action and (2) statutoiT" provisions. In an action for a tort, — e. g., before bringing suit to set aside lo Parrott v. Byers, 40 Cal. 622; the issue of the stock.— Glenn v. Davis v. Wenona Wagon Co., 120 Kittanning Brewing Co., 259 Pa. cal. 247, 52 Pac. 487. 11 Andrews v. Frye, 104 Mass. 234. St. 510, L. R. A. 1918D, 738, 103 Atl. 340. 4 Harshman v. Mitchell, 117 Ind. 312, 20 N. E. 228, isQuimby v. Lyon, 63 Cal. 395. 5 Stewart v. Levy, 36 Cal. 159. 13 Bertha v. Sparks, 19 Ind. App. 6 Marshall v. De Cordova, 26 431^ 49 |^ g 331 14 Glencoe, Village of, v. County Commissioners, 40 Minn. 44, 41 N. W. 239. App. Div. (N. Y.) 615, 50 N. Y. Supp. 294. 7 Drew V. Pedlar, 87 Cal. 452, 22 Am. St. Rep. 257, 25 Pac. 749. 8 Brown v. Davis, 15 Cal. 9. isLandix v. Sax ton, 105 Mo. Zimmerman v. National Bank, 486, 24 Am, St. Rep. 403, 16 S. W. 56 Iowa 133, 8 N, W. 807. 912. 643 §494 CODE PLEADING AND PRACTICE. [Pt. II, injury to a cellar-drain, notice of such injury to the person causing the same is not a prerequisite to suit.^ Notice of a certificate previously issued is not a condition precedent to an action under a contract to do specified work to be paid for, on certificate of engineer, as work progressed.^ But notice that money was voluntarily paid by the state, and a demand^ for its return, are conditions precedent to an action for its recovery,^ In actions for damages for personal injuries, in the absence of a statu- tory requirement, notice of the accident causing the injury and of the injury are not requisite to the commencement of an action for damages f but under statute such notice may be a condition precedent to suit.^ §494. Tender.^ In the case of covenants or undertakings which are mutual and dependent, where performance has not taken place pursuant to the contract, the party seeking specific performance, or redress for breach of contract, is required, as a condition precedent to commencing an action at law or suit in equity, to tender performance on his part to the other party,- — and the 1 Ohio & M. R. Co. V. Hemberger, 43 Ind. 462. 2 Panderson v. Shepherd, 25 Mass. (8 Pick.) 379; Hobart v. Hilliard, 28 Mass. (11 Pick.) 144. 3 As to necessity for demand, see, ante, § 490. 4 Southwick V. First Nat. Bank, 84 N. Y. 420, 61 How. Pr. 164, re- versing 20 Hun 349. 5 Birmingham R. & Electric Co. V. Wildman, 119 Ala. 547, 24 So. 548. 6 Gatzow V. Buening, 106 Wis. 1, 49 L. R. A. 475, 81 N. W. 1003; Malloy V. Chicago & N. W. R. Co., 109 Wis. 29, 85 N. W. 130; Smith V. Chicago, M. & St. P. R. Co., 124 Wis. 120, 102 N. W. 336; Hoffmann v. Milwaukee Electric R. & Light Co., 127 Wis. 76, 106 N. W. 808. 1 Subject of tender, in its various aspects in law and equity, its necessity to perfect a cause of action, time of making, form and sufRciency of, keeping tender good and paying into court, and tender as a defense, and the like, is too broad for treatment in this place. A brief discussion of tender as a condition precedent to an action at law or a suit in equity is all that can be attempted in this place. i; Smith v. Sherman, 174 Ala. 537, 56 So. 957; Smith v. Henry, 7 Ark. 207, 44 Am. Dec. 540; New- s o me v. Williams, 27 Ark. 635; Sanford v. Cloud, 17 Fla. 532; School District v. Rogers, 8 Iowa 644 •h. I.] CONDITION PRECEDENT TENDER. §494 siinie principle applies in a suit in equity to restrain col- lection of illegal taxes assessed, or to set aside a sale in payment of illegal taxes, in requiring a tender of the ascertainable legal taxes ;^ and this tender must be duly pleaded and proved,* although it has been said in a few cases that an offer or tender of performance made on the trial is sufiScient,^ but this doctrine is denied in other 318; Hapgood v. Shaw, 105 Mass. 276; Stockton v. George, 8 Miss. (7 How.) 175; Hudson v. Swift, 20 Johns. (N. Y.) 24; Parker v. Parmele, 20 Johns. (N. Y.) 130, 11 Am. Dec. 253; Williams v. Healey, 3 Den. (N. Y.) 363; Dun- ham V. Pattee, 8 N. Y. 508; Fickett V. Brice, 22 How. Pr. (N. Y.) 194; Merwin v. Hamilton, 13 N. Y. Super. Ct. Rep. (6 Duer) 244; Hogan v. Burton, 16 N. Y. St. Rep. 60; Webb V. Stevenson, 6 Ohio 282; Hansford v. Fisher, Wright (Ohio) 580; Sievers v. Brown, 36 Ore. 222, 56 Pac. 171; Davis v. Jeffries, 5 S. D. 352, 58 N. W. 815; Skeels V. Blanchard, 85 Vt. 296, 81 Atl. 016; Roach v. Dickinson, 9 Gratt. (Va.) 154; Kelsey v. Crowther, 162 U. S. 409, 49 L. Ed. 1019, 16 Sup. Ct. Rep. 810; Pollock v. Riddick, 88 C. C. A. 326, 161 Fed. 282. See, also, notes, 29 Am. Dec. 630; 44 Am. Dec. 546; 37 Am. St. Rep. 29; 118 Am. St. Rep. 915. '■'' People ex rel. Iron Silver Min. Co. V. Henderson, 12 Colo. 369, 21 Pac. 144; Wason v. Major, 10 Colo. App. 181, 50 Pac. 741; Mor- rison V. Hershire, 32 Iowa 271; Gulf R. Co. V. Morris, 7 Kan. 210; Leavenworth County Commrs. v. Lang, 8 Kan. 284 ; Ottawa, City of, V. Barney, 10 Kan. 270; Lawrence, City of, V. Rillam, 11 Kan. 499; Hageman v. Cloud County Commrs., 19 Kan. 394; Smith v. Woodleaf, 21 Kan. 717; Wilson v. Longendyke, 32 Kan. 267, 4 Pac. 361; Chicago, B. & Q. R. Co. v. Atchison County Board of Commrs., 54 Kan. 781, 39 Pac. 1039; Garnett Bank v. Ferris, 55 Kan. 120, 39 Pac. 1042; Douglas v. Fargo, City of, 13 N. D. 467, 101 N. W. 919, and cases cited; State Nat. Bank v. Carson (Okla.), 50 Pac. 990; Lafferts v. Calumet County Board of Commrs., 21 Wis. 688; People of New York v. Weaver, 100 U. S. 539, 25 L. Ed. 705; Pelton v. National Bank, 101 U. S. 143, 25 L. Ed. 901; Cum- mings v. National Bank, 101 U. S. 153, 25 L. Ed. 903; Northern Pac. R. Co. V. Clark, 153 U. S. 252, 38 L. Ed. 706, 14 Sup. Ct. Rep. 809. 4 Smith V. Sherman, 174 Ala. 537, 56 So. 957; Hegler v. Eddy, 53 Cal. 597; Meredith v. Santa Clara Min. Assoc, 56 Cal. 178; Barker v. Brink, 5 Iowa 481; Sidenberg v. Ely, 90 N. Y. 257, 43 Am. Rep. 163, 11 Abb. Pr. N. S. 354; Lester v. Jewett, 12 Barb. (N. Y.) 502; Mer- win V. Hamilton, 13 N. Y. Super. Ct. Rep. (6 Duer) 244. 5 Schoonmaker v. Kelly, 42 Hun (N. Y.) 292; Lewis v, Andrews, 38 N. Y. St. Rep. 808; Hassam v. Hassam, 22 Vt. 516 (tender pleaded to have been made after suit but before matter pleaded as a set-off, held in time). Ignorance of amount due may ex- 645 §494 CODE PLEADING AND PRACTICE. [Pt. II, cases. ^ A mere averment that the plaintiff is ready and willing to perform his part of the contract or undertaking does not meet the requirements of a tender and a plea thereof, and is for that reason insufficient, according to the weight of authority ''^ and the better rule, for the object of a tender, like the object of a demand, is for the benefit of the defendant, and to enable him to perform his part of the contract without the annoyance and expense of a suit.^ A tender must accompany an objection, by way of defense, that no demand was made.® Tender of a recon- veyance of property received under a writing giving to a deed the effect of a mortgage and allowing a reasonable time in which to sell a mine and pay the sum thus secured and sued for, is necessary where there is no showing that a reasonable time has elapsed.^" Tender or offer to put the complainant in statu quo, by one charged with having perpetrated a fraud, where not availed of mthin a rea- sonable time, prevents a court of equity from granting cuse plaintiff from making tender before commencing suit, b u t he must make a tender on the trial as soon as that amount is ascer- tained. — Hyndman v. Hogsett, 111 Pa. St. 643, 4 Atl. 717. Smith V. Woodleaf, 21 Kan. 717; Rennyson v. Reifsnyder, 11 Pa. Co. Ct. Rep. 157. 7 Englander v. Rogers, 41 Cal. 420; Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503; Bailey v. Lay, 18 Colo. 405, 33 Pac. 407; Vankeik v. Talbot, 4 Blackf. (Ind.) 367; John- son V. Applegate, 1 N. J. L.. (1 Coxe) 271; Harvey v. Trenchard, 6 N. J. L. (1 Halst.) 126; Ackley V. Richman, 10 N. J. L. (5 Halst.) 304; Parker v. Parmerle, 20 Johns. (N. Y.) 130, 11 Am. Dec. 253; John- son V. Wygant, 11 Wend. (N. Y.) 49: Lester v. Jewett, 11 X. Y. 453, reversing 12 Barb. 502; Campbell V. Gettings, 19 Ohio 317; Powell V. Dayton, S. & G. R. Co., 12 Ore. 488, 8 Pac. 544; Bank of Columbia V. Hanger, 26 U. S. (1 Pet.) 455, 7 L. Ed. 219; Dudley v. Hay ward, 11 Fed. 545. Compare: Adams v. Clark, 63 Mass. (9 Cush.) 215, 57 Am. Dec. 41; Thompson v. Dickerson, 68 Mo. App. 535; Porter v. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; Brook- lyn Ore Refinery v. Brown, 38 How. Pr. (N. Y.) 444; Henry v. Raiman, 25 Pa. St. 354, 64 Am. Dec. 703; "Wagenblast v. McKean, 2 Grant Cas. (Pa.) 393; Neis v, Yocum, 9 Sawy. 24, 16 Fed. 168; Rawson v. Johnson, 1 East 203, 102 Eng. Repr. 79. 8 See, ante, § 490, footnote 1. 9 Walcott v. Madden, 10 O r e. 370. ii>Id. 646 ch. I.] TENDER — SUFFICIENCY OF AVERMENT OP. §495 relief.^* As in the case of a demand, ^^ a tender of per- formance is not necessary in those cases in which it is apparent that it would have been rejected.^^ Objection to a tender on one ground is a waiver of all other grounds of objection not named.^* §495. Sufficiency of averments of. An allegation of a tender in general terms is not sufficient, either at law or in equity ;^ the allegation must be definite and certain as to the time of tender^ and as to the amount tendered,^ setting out facts sufficient to show the exist- ence of a valid tender under the terms and conditions of the particular contract,* both as to the time of the tender,^ and as to the amount of the tender^ or as to the 11 Hooker v. Midland Steel Co., 117 111. App. 441; affirmed, 215 111. 444, 106 Am. St. Rep. 170, 74 N. E. 445. 12 See, ante, § 492. 13 St. Louis & S. F. R. Co. v. Richards, 23 Okla. 256, 23 L. R. A. (N. S.) 1032, 102 Pac. 92. 14 Ward V. Flood, 48 Cal. 47, 17 Am. Rep. 405. 1 McCalley v. Otey, 90 Ala. 302, 8 So. 157; McGehee v. Jones, 10 Ga. 132; Cothran v. Scanlan, 34 Ga. 555; Newby v. Rogers, 40 Ind. 9. 2 Duff V. Fisher, 15 Cal. 375, 376; Vance v. Blair, 18 Ohio 532, 51 Am. Dec. 465. 3 See: Bothwell v. Millikan, 104 Ind. 162, 2 N. E. 959, 3 N. E. 816; Dawson v. Overmyer, 141 Ind. 438, 40 N. E. 1065; Rains v. Scott, 13 Ohio 107; Hill v. Harriman, 95 Tenn. 300, 32 S. W. 202. 4 McGehee v. Jones, 10 Ga. 132; Cothran v. Scanlan, 34 Ga. 555. ^> Tender after date provided for in the contract is an insufficient tender. — McCulloch v. Davson, 1 Ind. 413; Newby v. Rogers, 40 Ind. 9. 6 A less amount than that stipu- lated for tendered, it is insufficient. — Ross V. New England Mortgage Security Co., 101 Ala. 362, 13 So. 564. A tender by check of amount due as interest due on a mortgage to prevent the entire mortgage debt from becoming due, is suf- ficient in the absence of objection to the amount of the c h e c k. — Gunby v. Ingram, 57 Wash. 97, 36 L. R. A. (N. S.) 232, 106 Pac. 495. As to tender of payment of money by check, see, note, 36 L. R. A. (N. S.) 232. Setting aside conveyance of real estate sought on the ground of fraud and duress, allegation of a tender or offer to restore to de- fendant everything received from him, such averment as to tender or offer being made in the lan- guage of the statute, is sufficient. —Hick v. Thomas, 90 Cal. 289, 27 Pac. 208, 376. Suit to rescind contract for e.x- 647 § 496 CODE PLEADING AND PRACTICE. [Pt. II, instrument or thing tendered/ where it is something other than money ; must in addition show that the party plead- ing the tender not only was at all times ready and willing to perform his part of the agreement or contract,^ but that he has at all times kept the tender good^ and been in a position to perform,^" and must pay the money into court, where that is necessary to keep the tender good.^^ § 496. Acts and omissions constituting cause of ACTION — In general. Ubi jus, ibi remedium, is a maxim of universal application, and is said to have given occa- sion for the first invention of that form of action called an "action on the case,"^ and the claim has been put forward that governments are founded upon it.^ The maxim is frequently liberally translated as declaring that * * there is no wrong or injury mthout a remedy" ; but this is not an exact translation, and does not express the true meaning of the Latin words as set forth. The correct doctrine of the maxim, which is that ''where there is a change of lands, plea of tender or 8 Redington v. Chase, 34 C a 1. offer to restore all plaintiff had 666. received from defendant by the 9 Payment in notes of desig- exchange, is sufficient. — Day v. ^^ted third parties being called Mooney, 3 Okla. 608, 41 Pac. 142. ^^^ '"^ ^^^ contract, in addition to alleging a tender and refusal, it must be averred that the party pleading the tender still has in been tendered, this is sufficient. , . ■ ^u -j 4. • ^ , „^^ .~ Ills possession the said notes in which payment is to be made under the contract. — M c R e a v. Atlantic & N. C. R. Co., 58 N. C. Deed with covenant of general (5 j^^es Eq.) 395. warranty provided for in contract, jo Funkhouser v. Purdy, 1 Blackf. averiing the tender of a "deed in (ind.) 294. fee" is insufficient— McCulloch V. 11 Halpin v. Phoenix Ins. Co., Dawson, 1 Ind. 413. 118 >j Y. 165, 23 N. E. 482; Wright Offer to execute a bond is not v. Robinson & Co., 84 Hun (N. Y.) the tender of a bond required to 172, 32 N. Y. Supp. 463. be delivered by the contract. — 1 See Broom's Legal Maxims, Alexandria R. Co. v. National 181. • Junction R. Co., 1 MacA. (D. C.) 2 See 1 Hughes on Procedure, 203. § 126. 648 7 An instrument of kind called for in contract alleged to have -Haile v. Smith, 113 Cal. 656, 45 Pac. 872; Emmons v. Kiger, 23 Ind. 483. ch. I.] ACTS AND OMISSIONS — CAUSE OF ACTION. § 497 right [granted by law] there is a remedy," — which is quite a different thing from that set out in the translation above quoted. Lord Chief Justice Holt, one of England's renowned judges, has said that if a man has a right he must have a means to vindicate and maintain it ; that it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.^ This is idealistic, reads well, but was not sufficiently cogitated, because it fails to take into consideration and give due weight to that other maxim of the law, equally well- established as is the maxim first above quoted, and also of universal application where the principle is involved, ubi non est lex, ibi non est transgressio, quoad mundum, — where there is no law, there can be no transgression, so far as relates to the world, — which seems to be a practical application of St. Paul's declaration that ** where there is no law, there is no transgression."^ We have already seen,^ and the point will be further discussed presently,^ that a man may suffer injury in his business, and sustain actual financial loss, without the courts being able to grant relief from the injury, or damages for the loss. In other words, it is not every act of commission or omission, on the part of another, which constitutes a cause of action at law or of a suit in equity, even though injury is caused or financial loss suffered. §497. Act of God. What is termed an ''act of God," since the time of Sir Edward Coke,^ has ordinarily had the effect to relieve men of responsibility,- when un- 3 Ashby V. White, 2 Ld. Raym. Co., 25 Cal. 403, 1 Moit. Min. Rep. 938, 953, 92 Eng. Repr. 126, 135. 107; Palack v. Piochi, 35 Cal. 416, 4 Romans IV 15. ^^ Am. Dec. 115; Bohannan v. _„ , ' Mohammod, 42 Cal. 227, 230; 5 See, ante, § 6. ' ' Chidester v. Consolidated Ditch 6 See, post, §§504, 508-510. ^^^ ^^ ^al. 197; Rodgers v. Cen- 1 "Act of God" is a phrase first tral Pac. R. Co., 67 Cal. 607, 8 used in Shelley's Case, 1 Coke, Pac. 377. 93b, 97b, 76 Eng. Repr. 206, 219. see, also, authorities cited, foot- •^ Turner v. Tuolumne Water note 4, this section. G49 §497 CODE PLEADING AND PRACTICE. [Pt. 11, mixed with human act or omission. The term has been variously defined in different cases, these definitions differing rather in phraseology, or mode of expression, than in content or significance f and all, in effect, describe an act of God as an occurrence, — usually an accident or catastrophe, — due directly and exclusively to natural causes or the irresistible forces of Nature, against which no amount of human care or foresight, reasonable to have been expected, could have availed, avoided or prevented.^ But in those cases in which any human agency inter- venes, or the occurrence or accident could have been guarded against by reasonable care and the prudent foresight reasonably to be expected, liability attaches, and a cause of action arises.^ Thus, a carrier is not re- lieved from liability by an act of God where his or its 3 New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. L. (4 Zab.) 697, 714, 64 Am. Dec. 394. ■i See authorities in footnote 2, tliis section, and Ryan v. Rogers, 96 Cal. 346, 31 Pac. 244; Williams V. Grant, 1 Conn. 487, 491, 7 Am. Dec. 235; Hale v. New Jersey Steam Nav. Co., 15 Conn. 539, 39 Am. Dec. 398; McHenry v. Phila- delphia, W. & B. R. Co., 4 Harr. (Del.) 448-9; Pennewill v. Cullen, 5 Harr. (Del.) 238, 241; Chicago 6 N. W. R. Co. V. Sawyer, 69 111. 285, 18 Am. Rep. 613; Parmelee V. Lowitz, 74 111. 116, 24 Am. Rep. 276; Wald v. Pittsburg, C. C. & St. L. R. Co., 162 111. 545, 53 Am. St. Rep. 332, 35 L. R. A. 356, 44 N. E. 888; Clay County v. Simson, 1 Dak. 403, 46 N. W. 592; Bras- seau V. The Hudson, 11 La. Ann. 427; Fergusson v. Brent, 12 Md. 9, 31, 71 Am. Dec. 582;. Thomas V. Boston & P. R, Corp., 51 Mass. (10 Mete.) 472, 476, 43 Am. Dec. 444; Dorman v. Ames, 12 Minn. 451; Wolf V. American Express Co., 49 Mo. 421, 425, 97 Am. Dec. 406; McClary v. Sioux City & P. R. Co., 3 Neb. 44, 53, 19 Am. Rep. 641; Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552, 37 N. W. 462; Black v. Chicago, B. & Q. R. Co., 30 Neb. 197, 46 N. W. 428; Mershon v. Hobensack, 24 N. J. L. (2 Zab.) 372, 377; New Bruns- wick Steamboat & Canal Transp. Co., 24 N. J. L. (4 Zab.) 697, 714. 64 Am. Dec. 394; Elliott v. Ros- sell, 10 Johns. (N. Y.) 1, 11, 6 Am. Dec. 306; BeU v. Reed, 4 Penn. (Pa.) 126, 128, 5 Am. Dec. 398; Hays v. Kennedy, 41 Pa, St. 378, 80 Am. Dec. 627; Bason v. Charleston & C. Steamboat Co., 1 Harp. (S. C.) 262, 265; Cheval- lier V. Straham, 2 Tex. 115, 124, 47 Am. Dec. 639; K 1 a u b e r v. American Express Co., 21 Wis. 21, 24, 91 Am. Dec. 452; The Majestic, 166 U. S. 375, 41 L. Ed. 1039, 17 Sup. Ct. Rep. 597. 5 Id.; Welfelt v. Illinois Cent. R. Co., 149 111. App. 326. 650 cIl. I.] ACTS DONE WITH CONSENT, § 498 negligence concurred in the loss or injury;^ e. g., where its negligence brings the property injured or destroyed into contact with the destructive natural agency,' or the loss of or injury to the property is due to the carrier's negligence in failure to forward or ship the property con- signed to it for that purpose.^ § 498. Acts done with consent — Volenti non" FIT iNJUKiA. Ever since the days of Bracton/ volenti non fit injuria has been the rule of the English common law — an injury is not done to the willing; or, as more fully ex- pressed in the civil law, from which the maxim is sub- stantially derived, nulla injuria est quae in volentem fiat- — that is no injury which is done to a willing party. In this country it is also a well-settled principle of law that if one consent to an act and suffers injury or loss thereby, he is not injured by the act in a sense which en- ables the courts to furnish redress for the injury or dam- ages for the loss^ — except possibly in those cases in wdiich the act consented to is illegal or against public policy;'' but in order to constitute consent, the minds of the parties must meet upon the same thing at the same time,^ by par- 6 Sandy v. Lake Street El. R. chison, T. & S. F. R. Co., 94 Minn. Co., 235 111. 202, 85 N. E. 300. 274, 110 Am. St. Rep. 361, 3 Ann. 7 Tate V. Missouri Pac. R. Co., Cas. 450, 69 L. R. A. 512, 102 N. W. 157 111. 110. 709; Fentiman v. Atchison, T. & s Alabama Great Southern R. S. F. R. Co., 44 Tex. Civ. App. Co. V. Quarles, 145 Ala. 439, 117 461, 98 S. W. 939. Am. St. Rep. 54, 8 Ann. Cas. 308, i Bract., fol. 18. 5 L. R. A. (N. S.) 869, 40 So. 120; 2 Dig., 47, 10, 1, 5. Alabama Great Southern R. Co. 3 Dwyer v. Carroll, 86 Cal. 298, V. Elliott, 150 Ala. 384, 124 Am. 303, 24 Pac. 1015; Mahoney Land St. Rep. 72, 9 L. R. A, (N. S.) Co. v. Cayuga Investment Co., 88 1265, 43 So. 738; Arkansas South- Wash. 529, L. R. A. 191GC, 939, ern R. Co. v. Murphy, 89 Ark. 566, 153 Pac. 308. 103 S. W. 743; Green-Wheeler See, also, notes, 59 L. R. A. Shoe Co. V. Chicago, R. I. & P. R. 88 (d), L. R. A. 1916C, 940. Co., 130 Iowa 126, 8 Ann. Cas. 45, 4 See, post, § 499. 5 L. R. A. (N. S.) 883, 106 N. W. r, Dwyer v. Carroll, 86 Cal. 298, 498; Bibb Broom Corn Co. v. At- 303, 24 Pac. 1015. 651 §499 CODE PLEADING AND PRACTICE. [Pt. II, ties capable of consentiug.^ Thus, consent to carnal knowledge by a female above the age of consent, estops her to maintain an action for damage because of the inter- course ;" a divorce consented to, the party consenting can not maintain an action to vacate and set aside the decree f consent to the erection of a garage for the accommodation of the tenants of an apartment house, prevents the owner of the apartment house from maintaining an action, at law or in equity, on the ground that the garage, operated in an ordinarily careful manner, is a private nuisance.* §499. When principle does not apply. In those cases in which the act consented to and complained of is a wrong and unlawful, is a tort, and is against public policy, the consent thereto can not relieve the act of its unlawfulness, and does not deprive the party injured of a right of action for the damages suffered on account thereof. Thus, consent to an assault, and engaging in mu- tual combat, can not be pleaded in bar of or as a defense to an action to recover damages for the injuries received 6 Damages for rape of girl under •".tatutory age, consent of the female to the act does not relieve defendant of liability to respond In damages. — Hough v. Iderhoff, 69 Ore. 568, Ann, Cas. 1916A, 247, 139 Pac. 931; Priboth v. Haveson, 41 Okla. 692, 132 Pac. 973; Alt- man V. Eckermann (Tex.), 132 S. W. 523. TLind V. Class, 88 Cal. 6, 25 Pac. 972; Beseler v. Stephani, 71 111. 400; Robinson v. Musser, 78 Mo. 153; Campagne v. Harney, 189 Mo. 709, 88 S. W. 92. Without consent it is otherwise, of course. — Dickey v. McDonnell, 41 111. 62; Totten v. Totten. 172 Mich. 565, 138 N. W. 2.57; Dean V. Raplee, 145 N. Y. 319. 39 N. E. 952; Koenig v. Nott, 2 Hilt. (X. Y.) 323, 8 Abb. Pr. 384; Watson v. Taylor, 35 Okla. 768, 131 Pac. 922. s Robinson v. Robinson, 77 Wash. 663, 51 L. R. A. (N. S.) 534, 138 Pac. 288. See, also, note, 51 L. R. A. (N. S.) 534. 9 Mahoney Land Co. v. Cayuga Invest. Co., 88 Wash. 529, L. R. A. 1916C, 939, 153 Pac. 308. See: Fresno, City of, v. Fresno Canal & Irr. Co., 98 Cal. 179, 32 Pac. 9 4 3; Buchanan v. Logansport, C. & S. W. R. Co., 71 Ind. 265; Attorney-General ex rel. Easton v. New York & L. B. R. Co., 24 N. J. Eq. 49; Sprague v. Steere, 1 R. I. 247; Huntington & K. Land Devel. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711, 21 S. E. 1037. 652 ch. I.] CONSENT — BREACH OF CONTRACT. §500 in such combat,^ although the contrary has been held in Kentucky;- such consent being no justification for the unlawful act, which was against the peace and dignity of the state,^ and a license or consent to an unlawful act is no defense in an action therefor ;^ but the defendant may counter-claim damages for injuries received in the com- bat,^ and the fact that both participants sought the fight may be pleaded and proved in mitigation of damages.^ The same is thought to be true of a consent to an abortion, or to an attempt to produce an abortion,"^ which is like- wise unlawful and against public policy, although it has been said that a consent to treatment for the purpose of producing an abortion precludes any right of action for inducing and aiding in the attempt.^ §500. Breach of contract. While a wrong ^vith- out damage, or damage without a wrong, does not consti- 1 Logan V. Austin, 1 Stew. (Ala.) 476; Thomas v. Reily, 114 111. App. 522; Adams v. Waggoner, 33 Ind. 351, 5 Am. Rep. 230; Lund V. Tyler, 115 Iowa 236, 88 N. W. 333; McNeil v. Mullin, 70 Kan. 640, 79 Pac. 168; Grotton v. Gilder, 84 Me. 589, 30 Am. St. Rep. 413, 24 Atl. 1008; Lizana v. Lang, 90 Miss. 469, 43 So. 477; Jones v. Gale, 22 Mo. App. 637; Morris v. Miller, 83 Neb. 244, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047, 20 L. R. A, (N. S.) 911, 119 N. W. 458; Barholt v. Wright, 45 Ohio St. 179, 4 Am. St. Rep. 535, 12 N. E. 185; Schulter v. Williams, I Ohio Due. Repr. 47; Stout v. Wren, 8 N. C. (1 Hawks) 420, 9 Am. Dec. 653; Bell v. Mansley, 48 N. C. (3 Jones L.) 131; Willey v. Carpenter, 64 Vt. 212, 15 L. R. A. 853, 23 Atl. 630; Shay v. Thomp- son, 59 Wis. 540, 48 Am. Rep. 538, 18 N. W. 473. 2 Lykins v. Hamrick, 144 Ky. 83, 137 S. W. 852. 3 State V. Roby, 83 Vt. 129, 74 Atl. 638. As to effect of consent on crim- inal liability, see note, 15 L. R. A. 854. 4 Stout V. Wren, 8 N. C. (1 Hawks) 420, 9 Am. Dec. 653. See Toll Bridge Co. v. Butterworth, 30 Conn. 380. 5 Gutzman v. Clancy, 114 Wis. 589, 58 L. R. A. 744, 90 N. W. 1081. Grotton v. Glidden, 84 Me. 589, 30 Am. St. Rep. 413, 24 Atl. 1008; Morris v. Miller, S3 Neb. 244, 131 Am. St. Rep. G30, 17 Ann. Cas. 1047, 20 L. R. A. (N. S.) 911, 119 N. W. 458; Barholt v. Wright, 45 Ohio St. 179, 4 Am. St. Rep. 535, 12 N. E. 185. 7 S e e Courtney v. Clinton, 18 Ind. App. 626, 48 N. E. 799. s Goldnamer v. O'Brien, 98 Ky. 569, 56 Am. St. Rep. 378, 36 L. R. A. 715, :53 S. W. 831. 653 §501 CODE PLEADING AND PRACTICE. [Pt. 11. I tute a cause of action,* as we have seen^ and shall see more fully presently,^ because of the maxim de minimus non curat lex, — the law does not care for, or take notice of, trifles, — does not apply to cases of a positive and wrongful invasion of another's property^ or rights,^ how- ever trifling. Thus, a druggist who, as a joke, drops croton oil on candy purchased for another, is liable in damages to such other for an assault and battery.^ And in the case of a breach of an express contract, a cause of action for such breach accrues, although no actual dam- ages, or injury, or loss is suffered thereby^ § 501. Breach of trust. A mere technical breach of an express trust, on the other hand, creates no cause of action.^ Thus, where A delivers to B a certain number of shares of stock of a corporation, as collateral security, such shares to be sold whenever B could realize a specified price therefor per share, and B disposed of the shares of stock on his own account for a sum per share other than that agreed upon, and in settlement with A transferred to him an equal number of shares of stock, of the same kind and value, in the same corporation, in an action charging fraud in the settlement, and seeking to recover the money for the shares sold, the transaction was held to be a mere 1 Janesville, City of, v. Car- penter, 77 Wis. 288, 20 Am. St. Rep. 123, 8 L. R. A. 808, 46 N. W. 128. 2 See, supra, § 6. 3 See, post, §§ 519, 520. 4 Hartman v. Swindell, 54 N. J. L. 589, 18 L. R. A. 44, 25 Atl. 356. a Seneca Road Co. v. Auburn & Rochester R. Co., 5 Hill (N. Y.) 170. See, post, § 519, footnote 3. « See: State v. Monroe, 121 N. C. 677, 61 Am. St. Rep. 686, 43 L. R. A. 861, 28 S. E. 547; Mc- Kibbin v. Bax, 79 Neb. 577, 126 Am. St. Rep. 677, 13 L. R. A. (N. S.) 646, 113 N. W. 158. 7 McCarty v. Beach, 10 Cal. 461. See: Moody v. Peirano, 7 Cal. Unrep. 247, 84 Pac. 783; Moody V. Peirano, 4 Cal. App. 411, 88 Pac. 830; Cowley v. Davidson, 10 Minn. 392; Jacobs Sultan Co. v. Union Mercantile Co., 17 Mont. 61, 65, 42 Pac. 109; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Sunnyside Land Co. v. Wil- lamette Bridge Co., 20 Ore. 544, 26 Pac. 835. 1 Atkins V. Gamble, 42 Cal. 86, 10 Am. Rep. 282, 654 ch. I.] BREACH OF TRUST — CONSPIRACT. § 502 technical breach of trust and was damnum absque injuria.^ This holding was put upon the ground that certificates of stock in a corporation are not securities for money, or negotiable securities, but simply the muniments and e\d- dence of the holder's title to a given number of shares in the property and franchises of the corporation of which he was a member,^ and that the defendant was at all times able and ready and willing to transfer to the plaintiff the same number of shares of similar stock in the same cor- poration, and which had precisely the same value."* If the corporation had issued two classes of stock, one of more value than the other, and the stock returned by B had been of the issue of the inferior value, the case would, of course, have been different, and the plaintiff would have been entitled to damages.^ § 502. Conspiracy not executed. Damages or injury actually suffered, by an infringement of personal rights or an interference with or injury to his property, however slight the actual injury,^ is the only basis of a cause of action ; a simple unexecuted conspiracy to inter- fere wdth personal rights or property, or to injure the same, does not constitute a cause of action ;- and where ^I Herron v. Hughes, 25 Cal. 555, Gilmore v. Mastin, 115 111. App. 560. 46; James v. Carson, 111 Ind. 522, Quoted case followed in Dow- 13 N. E. 44; Parker v. Hunting- dell v. Corpy, 129 Cal. 168, 170, 61 ton, 68 Mass. (2 Gray) 124; Ham- Pac. 948. 656 Ch. I.] CRIMINALITY OF ACT. § 503 a statutory provision giving a right of action, unless some private interest is invaded, or private property affected or damaged. Thus, it is held by a line of cases that a public officer is not liable, in the absence of a statute charging him therewith, for interest paid to him on, or profits made by him out of, public funds in his hands, where the liability for such funds is absolute, although the law makes him criminally liable for putting the public money out at interest, or using it to make a profit ;^ but where there is a statutory provision requiring the officer to pay into the county treasury all "fees, perquisites and emoluments," there is a liability on his bond for interest received on public moneys coming into his hands. ^ On the other hand there is a strong line of cases, and the weight of authority, to the effect that where a public officer receives interest on a public fund, from deposit in a bank or otherwise, in violation of law, the interest thus received comes into his hands ''by \T.rtue of his office," and he is liable on his bond therefor.^ The New York court pertinently remarks that the notion that a public officer may keep back interest which he has received upon the deposit of public moneys, as a perquisite of his office, is an affront to law and morals, for if done with evil in- 1 People V. Walsen, 17 Colo. 170, 855, 52 So. 865; Richmond County 15 L. R. A. 456, 28 Pac. 1119; Supervisors v. Wandel, 6 Lans. Renfroe v. Colquitt, 74 Ga. 618; (N. Y.) 33; affirmed, 59 N. Y. 645; Maloy V. Bemolillo County Com- Thompson v. Territory, 10 Okla. missioners, 10 N. W. 638, 52 420, 63 Pac. 355; Baker v. Wil- L. R. A. 126, 62 Pac. 1106. liams Banking Co., 42 Ore. 223, 70 2 Hughes V. People, 82 111. 78; Pac. 711; Wilkes Barre, City of. State of South Dakota v. Collins v. Rockafellow, 171 Pa. St. 177, (U. S. Sup. Ct. March 17, 1919), 50 Am. St. Rep. 795, 30 L. R. A. L. Ed. Adv. Sheets, April 15, 1919, 393, 33 Atl. 269; State v. McFet- p. 325, 39 Sup. Ct. Rep. 261. ridge, 84 Wis. 473, 20 L. R. A. 223, 3 Rhea v. Brewster, 130 I o w a 54 N. W. 1, 998; State v. Har- 729, 732, 8 Ann. C a s. 389, 107 shaw, 84 Wis. 536, 54 N. W. 17. N. W. 940; Vansant v. State, 96 As to liability on bond of public Md. 129, 53 Atl. 711; Adams v. officer for interest, see note, 91 Williams, 97 Miss. 113, Ann. Cas. Am. St. Rep. 527; 8 Ann. Gas. 391, 1912C, 1129, 30 L. R. A. (N. S.) 30 L. R. A. (N. S.) 855-863. I Code PI. and Pr.— 42 657 § 504 CODE PLEADING AND PRACTICE. [Pt. II, tent it is nothing less tlian embezzlement; and that the item of interest is within the terms of his official bond.^ <^ 504. Damages incident to public improvement OR WORK. In those cases in which there is consequential damage to private individuals incident to and the direct result of the prosecution or completion of public improve- ments or works, which are duly authorized by law, this does not constitute a taking of private property for pub- lic use within the meaning of a constitutional provision giving compensation for property so taken, and does not constitute a cause of action, such damage being regarded as damnum absque injuria.^ Thus, a turning or straight- ening of a river channel at a point at which it flows into another river, so that the land on the opposite shore of the second river is, five years afterwards, injured or destroyed by the increased velocity of the current of the discharged waters, such injury or destruction does not constitute a public taking of private property, and does not entitle the riparian owner injured to damages there- for;- and the commissioners appointed to thus turn or straighten the river are not liable to the injured riparian owner for the damages caused by an error of judgment in making the public improvement, where they do not act dishonestly or maliciously.^ A bridge ordered and con- 4 Richmond County Supervisors & Swift Cambridge River Imp. V. Wendel, 6 Lans. (N. Y.) 32; af- Co., 82 Me. 17, 17 Am. St. Rep. firmed, 59 N. Y. 645. 459, 7 L. R. A. 460, 19 Atl. 87; 1 Green v. Swift, 47 Cal. 536; Durham v. Lisbon Falls Fibre Co., Green v. State, 2 Cal. Unrep. 737, 100 Me. 238, 246, 61 Atl. 177; 12 Pac. 683; Moulton v. Parks, 64 Baker v. French, 102 Me. 412, 67 Cal. 166, 178, 30 Pac, 613; Conniff Atl. 308; Davidson v. Boston &. v. San Francisco, City of, 67 Cal. M. R. Co., 57 Mass. (3 Cush.) 91; 45, 50, 7 Pac. 41; Green v. State, Casey v. Vv'rought Iron Bridge Co.. 73 Cal. 29, 11 Pac. 602, 14 Pac. 114 Mo. App. 61, 89 S. W. 330. 610; Hoagland v. State (Cal. Aug. 2 Green v. Swift, 47 Cal. 536; 27, 1889), 22 Pac. 142; De Baker Hoagland v. State (Cal. Aug. 27, V. Southern Cal. R. Co., 106 Cal. 1889), 22 Pac. 142. 257, 283, 46 Am. St. Rep. 237, 39 3 Qreen v. Swift, 47 Cal. 536. Pac. 610; B a s s v. State, 34 La. See Black v. Linn, 17 S. D. 338, Ann. 502; Brooks v. Cedar Brook 96 N. W, 697. 658 Ch. I.] PUBLIC IMPROVEMENT — DAMAGES. § 504 structed by a constituted authority in the manner pro- vided by law, can not constitute a nuisance giving to a private individual a right of action. "* A dam across an abandoned channel of a river, the stream having cut a new channel, is a la^vful public improvement, and dam- ages resulting from over-flow water obstructed by the dam, by reason of the filling up of the new channel, is to be regarded as *^an act of God,"^ and does not constitute a cause of action in favor of the party who suffers the injury.^ A dam, erected by legislative authority, which causes, at times, an increased flow of water in a river, whereby the channel of the river is deepened and widened, and the soil of riparian lands somewhat worn away, the injuries thus caused are consequential and not actionable.^ Damages due to overflow of land below a dam erected by legislative authority, caused by a reasonable opening of the gates at a mill, is damnum absque injuria f and the same is true of damages caused by the overflow of a dam erected under authority of the state,^ or damages to a riparian owner caused by the deflection of the current of a river by the erection of a dam authorized by law and lawfully constructed.^" A leve^ authorized by a municipal corporation to be constructed by a railroad company, where the plan is conceived and executed in good faith, neither the municipality nor the railroad company will be liable for consequential damages to a riparian owner resulting from an error of judgment in connection with the construction of such levee ;^^ and levee commissioners, 4 Case V. Wrought Iron Bridge 17, 17 Am. St. Rep. 459, 7 L. R. A. Co., 114 Mo. App. 61, 89 S. W. 460, 19 Atl. 87. 330. s Baker v. French, 102 Me. 412, 5 As to act of God, see, ante, 67 Atl. 308. § 497. Moulton v. Parks, 64 Cal. 166, « Payne v. Kansas City, St. J. 178, 30 Pac. 613. & C. B. R. Co., 1 1 2 M o. 6, 17 lo Durham v. Lisbon Falls Fibre L. R. A, 628, 20 S. W. 322. Co., 100 Me. 238, 246, 61 At!. 177. 7 Brooks V. Cedar Brook & Swift n De Baker v. Southern Cal. R. Cambridge River Imp. Co., 82 Me. Co., 106 Cal. 257, 283, 46 Am. St. 659 ^ 505 CODE PLEADING AND PKACTICE. LH.II, acting within the scope of their authority, are not liable for errors of judgment and consequential injuries to others from the completed improvement, where the work is done properly and with due care,^- On the other hand, it has been said that a drainage district is liable for dam- ages from flooding of lands caused by the construction of a levee below them.^^ § 505. Declaration of eight without other re- lief — In general. An action for the declaration of rights, either in law or in equity, without remedial relief, is a procedure comparatively unknown^ in American judicature,- — frivolous and collusive actions not being Rep. 237, 39 Pac. 610. See Bass V. State, 34 La. Ann. 502. 12 Green v. Swift, 47 Cal. 536, 540. As to levees as public improve- ments, see note, 58 L. R. A, 757. 13 Bradbury v. Vandalia Drain- age Dist., 236 111. 47, 19 L. R. A. (N. S.) 991, 86 N. E. 166. 1 Exceptions are given, post, § 506. - See, among ottier cases: ALA. —Postal Telegraph-Cable Co. v. Montgomery, City of, 193 Ala. 234, 09 So. 428. CAL.— Kinney v. New- lin, Cal. Sup. (L. A. No. 681), Oct. 11, 1900; Foster v. Smith, 115 Cal. Gil, 47 Pac. 591; Hunger's Laun- dry Co. V. Rankin, 8 Cal. App. 448, 97 Pac. 95. ILL. — Wendell v. Peoria, City of, 274 111. 613, 113 N. E. 918. IND.— Modlin v. Grant County Commrs., 55 Ind. App. 239, 103 N. E. 506. IOWA— Davidson & Bros., S., V. Younker, 163 Iowa 72, 143 N. W. 1113. ME.— Morse V. Ballou, 109 Me. 264, 83 Atl. 799. MD.— Woods V. Fuller, 61 Md. 457. MASS.— Hanson v. Griswold, 221 Mass. 228, 108 N. E. 1035; .lohnson V. Foster, 221 Mass. 248, 108 N. E. 928. MO.— State ex rel. Shackel- ford V. McElhinney, 145 S. W. 1139. NEB.— State ex rel. Wright v. Savage, 64 Neb. 648, 90 N. W. 808, 91 N. W. 557; State ex rel. Ken- nedy V. Broatch, 68 Neb. 687, 706, 110 Am. St. Rep. 477, 493, 94 N. W. 1016. N. H.— Greeley v. Nashua, City of, 62 N. H. 166. N. J.— Funk & Wagnalls Co. v. Stamm, 85 J. L. 301, 88 Atl. 1050; Be vans v. Bevans, 69 N. J. Eq. 1, 59 Atl. 89G. N. M.— Costilla Land & Devel. Co. v. Allen, 17 N. M. 343, 128 Pac 79. N. Y.— People ex rel. Geer v Troy, City of, 82 N. Y. 575; Man ning. In re, 139 N. Y. 446, 34 N. E. 931; Hanrahan v. Terminal Station Commission, 206 N. Y. 494, 100 N. E. 414, reversing 152 App. Div. 349, 136 N. Y. Supp. 1001; Duns- ton v. Security Mut. Life Ins. Co., 152 App. Div. (N. Y.) 264, 136 N. Y. Supp. 674 ; New York Electric Lines Co. v. Gaynor, 167 App. Div. (N. Y.) 314, 153 N. Y. Supp. 244; Spingarn's Estate, In re, 69 Misc. (N. Y.) 141, 159 N. Y. Supp. 605; Davis V. Seaward, 85 Misc. (N. Y.) 210, 146 N. Y. Supp. 981. ORE.— Sherod v. Atchison, 71 Ore. 410. GGO ch. I.] DECLARING RIGHT WITHOUT RELIEF. §505 tolerated,' — on the ground, as is said in one ease, that ' * the demands of actual, practical litigation are too press- ing to permit the examination and discussion of academic questions."^ This is the old and long-prevailing doctrine of the common law, founded upon the dual notion (1) that remedial justice is always based upon the infringement of antecedent fundamental rights,^ and that courts will act to enforce antecedent rights against wrong-doers only, who are such either in act or in intent;^ and (2) that, as Mr. Justice Holmes recently put it, "the foundation of jurisdiction is physical force,'" — the force behind the court to institute suits and to carry out and enforce its 142 Pac. 351. F E D. — Southern Cotton Oil Co. V. Central of Georgia R. Co., 204 Fed. 476; Southern Pac. Co. v. Eshelman, 227 Fed. 928. "Moot cases," in which it is sought to secure a judgment or decree of the court upon a pre- tended controversy, when in fact there is no such controversy, or a judgment as to a right whicli has not yet been asserted or contested, or a construction of a statute not before the court, or an interpreta- tion of a contract or will not in litigation, and the like, are not entertained in this country, as yet; but the fact that a suit is a "friendly" one does not make it a "moot case." — See: State ex rel. Jackson v. Dolley, 82 Kan. 533, 108 Pac. 846; State v. First Cath- olic Church, 88 Neb. 2, 7, 128 N. W. 657; Adams v. Union R. Co., 21 R. I. 134, 79 Am. St. Rep. 801, 44 L. R. A. 273, 42 Atl. 515. — Mere refusal of public officer to perform duty under a statute, where such refusal is merely to test the validity of the statute, even though the officer believes it valid but wishes a judicial deter- mination of that fact, an action brought against the officer is not a "fictitious" action or a "m o o t case." — State ex rel. Jackson v. Dolley, 82 Kan. 533, 537, 108 Pac. 486. See, also, post, § 520. Election contest vain and fruit- less in the courts, because the legislature will have to hear and determine the question ab initio, a court will not assume jurisdic- tion for any purpose. — Ellison v. Barnes, 23 Utah 183, 63 Pac. 899. See Johnson v. Dosland, 103 Minn. 147, 114 N. W. 465. 3 See, post, § 520. 4 Manning, In re, 139 N. Y. 446. 34 N. E. 931. See, also, remarks of Mr. Justice Sedgewick in State ex rel. Kennedy v. Broatch, 68 Neb. 687, 706, 110 Am. St. Rep. 477, 493, 94 N. W. 1016. 5 Holland's Jurisprudence, 9th ed., p. 310. « Salmond's Jurisprudence, 4th ed., p. 71. 7 McDonald v. Mabee, 243 U. S. 90, 91, 61 L. Ed. 60S, 609, 37 Sup. Ct. Rep. 343. 661 § 506 CODE PLEADING AND PRACTICE. [Pt. IT, judgments and decrees ; although, as Mr. Justice Hohnes further remarks, "in civilized times it is not necessary to maintain that power throughout proceedings properly- begun, and although submission by appearance may take the place of service upon the person."^ From this it will be seen that the old English common-law concept has been closely followed in the judicature of this country. But the world has outgrown the antiquated idea that the courts can not properly declare rights except in cases of an infringement of fundamental rights, perpetrated or threatened, and we may reasonably hope for a more en- lightened and liberal rule in this regard;^ to secure it, however, will require a progressive readjustment of our system of judicature. § 506. Exceptions to the rule. The Ameri- can courts have not adhered strictly to the old common- law doctrine, — and this cleavage justifies us in hoping and expecting further advancement and a more enlightened judicature, — in all proceedings and particulars, the excep- tions being made in cases in which (1) a status is to be established, and that status is of general public interest ; (2) where a receiver is involved, or (3) where a trustee is in doubt as to his powers under the trust. In the case of a receiver, he may always make application to the court appointing him for information and direction as to his powers and duties ; but a receiver is an officer of the court, and in this differs from the ordinary litigant seeking the action or opinion of the court. In the case of a trustee in doubt, he may apply to the court, without a present action or controversy, for a construction of the trust under which he is acting, and thus save himself from mistakes, litiga- tion, and loss. The establishment of a status, being a mat- ter of public importance, it may be determined without the s Id., citing Michigan Trust Co. v. Gold Issue Min. & Mill. Co., 243 V. Ferry, 228 U. S. 346, 353, 57 U. S. 93, 61 L. Ed. 610, 37 Sup. Ct L. Ed. 867, 874, 33 Sup. Ct. Rep. Rep. 344. 550; Pennsylvania Fire Ins. Co. 9 See discussion, post, 507. 662 •h. I.] DECLARING RIGHTS, ETC. — EXCEPTIONS. §506 presence of a bona fide cause or subject of litigation ;^ and in some of the jurisdictions, — e. g., in Maine and Massa- chusetts, — the legislature of the state, or the executive, may call upon the highest court of the state for its opinion upon important questions of public interest, without pre- senting an actual cause to be determined, and in which relief is to be granted. Thus, it has been held that, with- out an actual cause presented, a court may determine the status of municipal bonds,- of irrigation districts and irri- gation bonds,^ of a public institution, such as a medical 1 Public interest involved, court, it seems, may take cognizance without an actual case. — See Modlin V. Grant County Commrs., 55 Ind. App. 239, 103 N. E. 506. 2 Carlson v. Helena, City of, 38 Mont. 581, 589, 101 Pac. 163, citing Parker v. State ex rel. Powell, 132 Ind. 419, 31 N. E. 1114; Adams v. Union R. Co., 21 R. I. 134, 44 L. R. A. 273, 42 Atl. 515; Wilming- ton & W. R. Co. V. Board Railroad Commrs., 90 Fed. 93. Compare: State ex rel. Hahn v. Westport, City of, 135 Mo. 120, 36 S. W. 663; Berks County v. Jones, 21 Pa. St. 416. Proceeding to determine valid- ity of municipal bonds, under statute. — See: Richter v. Chatham County (Ga.), 91 S. E. 35; Tyson V. Mcintosh County (Ga.), 93 S. E. 407; Colburn v. McDonald, 72 Neb. 431, 100 N. W. 961; Hor- ton V. Howard, 97 Neb. 575, 150 N. W. 633. 3 Confirmation by judgment of court of competent jurisdiction, in advance of a n y issue raised or any cause presented for deter- mination, is provided by statute in various of the states in the arid regions, in respect to irrigation districts, and also as to the bonds issued by such districts; the con- firmation proceeding provided for is simply an ascertainment and declaration of the status of the irrigation district, or of the bonds issued by it, as the case may be; that is, that the district is duly and regularly organized, or that the bonds were legally and prop- erly issued under the statute, and are valid. Such judgment of the court in a confirmation proceed- ing is valid and binding until set aside. — See, among other cases, Crall V. Board of Directors of Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797; Board of Directors of Mo- desto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237; appeal dismissed, 164 U. S. 179, 41 L. Ed. 395. 17 Sup. Ct. Rep. 52; Palmdale Irr. Dist. V. Rathke. 91 Cal. 538. 27 Pac. 783; Bonds of Madera Irr. Dist., In re Bonds of, 92 Cal. 29C, 27 Am. St. Rep. 106, 14 L. R. A. 755, 28 Pac. 272; Rialto Irr. Dist. V. Brandon, 103 Cal. 381, M Pac. 484; Falbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793; Cullen V. Glendora Water Co., 113 Cal. 503, 39 Pac. 769, 45 Pac. 1047; Central Irr. Dist.. In re Bonds of, 117 Cal. 382, 49 Pac. 354; Stini- son V. Alessandro Irr. Dist., 135 663 f 507 CODE PLEADING AND PRACTICE. [Pt. II, college,* and the like. The supreme court of Wisconsin say that ''whenever the thing denominated a status is a matter of public importance by principle of common law, or by the letter or spirit of the written law, — such as the condition of marriage,^ citizenship,*^ parentage, residence, legal settlement, and many other things that might be mentioned, '^ — the question in respect thereto is a legiti- mate matter for judicial determination in a tribunal hav- ing jurisdiction of the res. Proceedings of that sort are regarded as in rem, the same in all respects as if the thing were of a tangible character. The whole w^orld, so to speak, is regarded as a party. The person directly affected is deemed to be so specially interested as to be entitled, — under constitutional guaranties, as regards due process of law, the equal protection of the laws, and the general principles of free government, — to some reasonable op- portunit}^ to be heard. "^ § 507. English practice. Notwithstanding the exceptions above noted, the prevailing American doc- Cal. 389, 67 Pac. 496; People v. Ferris Irr. Dist., 142 Cal. 601, 76 Pac. 381; Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 Pac. 316; Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499; Emmett Irr. Dist. V. Shane, 19 Idaho 332, 113 Pac. 444. — The "issues" to be determined in such a proceeding are simply (1) the validity of the organiza- tion of the district, (2) the valid- ity of the proceedings of the board of directors for the issuance of bonds; and these issues are dis- tinct from subordinate and evi- dentiary findings of the court. — Falbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793. 4 State ex rel. Milwaukee Med- ical College V. Chittenden, 127 Wis. 468, 107 N, W. 500, 512. 5 See discussion in 1 Elliott's General Practice, § 245. G See Spratt v. Spratt, 29 U. S. (4 Pet.) 393, 7 L. Ed. 897. On same point see cases cited and abstracted in 2 Rose's Notes on U. S. Reports 917. 7 See 1 Elliott's General Prac- tice, § 246. s State ex rel. Milwaukee Med- ical College V. Chittenden, 127 W^is. 468. 107 N. W. 512, citing Hood V. Hood, 110 Mass. 463; Ross V. Ross, 129 Mass. 243, 37 Am. Rep. 321; McCarthy v. Marsh, 5 N. Y. 263; Cabot v. Washington, 41 Vt. 168; Pittsford v. Chittenden, 58 Vt. 49, 3 Atl. 323; State ex rel. Kic- bush V. Hoeflinger, 35 Wis. 393; State ex rel. Atkinson v. McDon- ald, lOS Wis. 8, 81 Am, St. Rep. 878, 84 N. W. 171; Spratt v. Spratt, 29 U. S. (4 Pet.) 393, 7 L. Ed. 897. 664 eh. I.] DECLARING RIGHTS, ETC. — ENGLISH PRACTICE. § 507 trine is that the duty and function of the courts are to decide the rights of persons and property, when the par- ties interested can not agree, on a cause presented, and a full hearing of both parties. The supreme court of the United States has said that any attempt, by a mere color- able dispute, to obtain the opinion of a court upon a question of law which a party desires to know for his own interest, or for his o^vn purposes, when there is no real or substantial controversy between the parties who ap- pear as adversaries to the suit, is a reprehensible abuse of justice which the courts have always treated as a pun- ishable contempt of court ;^ and the supreme court of Montana has said that in such a case it would feel not only constrained to dismiss an appeal, but also to proceed against both clients and counsel for contempt.- And such is the view that has been frequently expressed by the American courts,^ although some of the cases hold insti- gating a fictitious action is not contempt, but obstructing justice merely.^ In England a more enlightened practice prevails. In that country the archaic conception of the common law regarding remedial jurisprudence was par- tially remedied in 1852, when parliament amended the iLord V. Veasie, 49 U. S. (8 523, 556, 130 S. W. 9; Meeker v. How.) 251, 12 L. Ed. 1067. Straat, 38 Mo. App. 239; Haley v. As to bringing of fictitious suit Eureka County Bank, 21 Nev. 127. to obtain opinion of court being a ^^ '" "' ^- ^^'^' "^ P^^- ^^^ ^^^^^ contempt, see note, L. R. A. 1915B, ^°""^^' ^- J°^««' ^1 Pa. St. 413: g„g Ward V. Alsup, 100 Tenn. 619, 46 S. W. 573; Connoly v. Cunning- 2 Carlson v. Helena. City of. 38 ham, 2 Wash. Tr. 242, 5 Pac. 473; Mont. 561, 101 Pac. 163. Cleveland v. Chamberlain. 66 3 McAdam v. People ex rel. U. S. (1 Black) 419, 17 L. Ed. 93: Joslyn, 179 111. 316. 53 N. E. 1102; Gardner v. Goodyear Denta! Vnl- Fesler v. Brayton, 145 Ind. 71, 32 canite Co., 131 U. S.. p. ciii, 21 L. R. A. 578. 44 N. E. 37; Isenhour L. Ed. 141; Hatfield v. Kin.?. 1S4 V. State, 157 Ind. 520, 87 Am. St. U. S. 163, 46 L. Ed. 481. 22 Sii|). Rep. 228. 62 N. E. 40; State ex rel. Ct. Rep. 477; Horn v. Kiltita.s Hahn V. Westport, City of, 135 Mo. County. 112 Fed. 1. 120, 36 S. W. 663; State ex rel. 4 Melton v. Com., 160 Ky. 664, Chandler v. McQuinlin, 229 Mo. L. R. A. 1915B, 689, 170, S. VV. 37. 665 § 507 CODE PLEADING AND PRACTICE. [Pt. H, practice in the High Court of Chancery by providing, among other things, that '*no snit in said court shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the court to make binding declarations of right with- out granting consequential relief. ' '^ This was the enter- ing wedge of procedural reform. It applied to the one court only, and was construed to relate to those cases in which consequential relief could be granted, only.^ But the Judicature Act of 1873 enlarged the scope of the re- form, and the power of the court thereunder was further extended in 1883 by adding to the provision above quoted that 'Hhe court may make binding declarations of right, whether any consequential relief is or could be claimed or not,"" thus introducing an innovation more radical and highly important in its possibilities for good.^ In 1893 the doors of reform were thrown wider by it being pro- vided that ''in any division of the High Court [of Chan- cery], any person claiming to be interested under a deed, will, or other written instrument, may apply by origi- nating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested."^ Immense advantages and possibilities of such a pro- cedural reform in this country are too manifest on thoughtful consideration to require discussion, in the way of conserving interests of litigants, protecting their rights, saving hazard and expense, preventing annoying delays and possible loss attendant thereon, and as tending to lessen litigation and thus to reduce the arduous labors of the courts. Any doubting Thomas ^vill have all his misgivings swept aAvay by a thoughtful perusal of recent discussions of the subject in our leading law journals,**' 5 15 and 16 Vict., ch. 86, § 50. 8 Ellis v. Duke of Bedford oRooke V. Kensington (1856), (189^), 1 Ch. 494, 515. 2 Kay & Johns. 753, 761. 9 Rule 1, Order 54a. 7 Rule 5, Order 25. lo See 53 American Law Review C66 ell. I.] DESTRUCTION OF PROPERTY, ETC. § 508 and a careful examination of tlie English Chancery Reports of the past thirty years, which will show the working of such a reform in actual practice and disclose its many advantages. Not a novelty in English judicature. In addition to the exceptions above noted,^^ including the old equitable pro- ceeding for the interpretation of a trust and the instruc- tion of a trustee, there was formerly the writ quo jure, which at common law at the instance of any one who had land in which another claimed the right of an easement of '^coimiion" — a profit arising to him from a right to feed or pasture his beasts, catch fish, dig turf, cut wood, or the like — to compel the latter to show by what title lie claimed such easement.^- This remedy passed with the doing away with the old common-law ''real action." In American judicature this is a purely academic ques- tion, though a much-needed procedural reform, and we must be content in this place with merely calling the atten- tion of the bench and bar to the subject ; we can not enter into a discussion of its merits and working in practice, as shcwm by an analysis of the cases in the English Chancery Reports for the past thirty or more years. ^ 503. Destruction of property to prevent the SPREAD OF fire. luviolablc as the law regards the rights of private property, such private rights and interests are always subordinated to the general public welfare, on the principle of the maxim, salus populi suprema est lex — the good or welfare of the people is the supreme law, for it is always better to suffer a private mischief than (March-April 1919), p. 161; 28 Yale few other cases, showing its work- Law Journal, pp. 1, 36; 88 Central ings in actual practice, will be Law Journal 6. found in Prof. Edson R. Sunder- Summary of permanent benefits lands paper in 88 Cent. L. J. 6, IT. of such a procedural reform to ii See, ante, §506. litigants, with an analysis of the 12 See Britt. eh. 59; Co well cases in 2 Eng. Ch. Reps, and a F. N. B. 128 F; Reg. Orig. 156b. G67 §508 CODE PLEADING AND PRACTICE. [Pt. II, to permit a public inconvenience/ on the principle of that other maxim, necessitas inducit privilegium quad jura privata — necessity carries with it a privilege as to private rights. Hence it is the well-established doctrine that, by common-law power, the authorities of a munici- pality may cause houses and other property to be blowai up or destroyed for the purpose of stopping, or of pre- venting the spread of, a conflagration, and neither the municipality nor the authorities causing such destruction are liable in damages to the owner of the property thus destroyed,- — although this doctrine seems to have been 1 Respublica v. Sparhawk, 1 U. S. (1 Dob.) 357, 1 L. Ed. 174; Thrope V. Rutland & B. R. Co., 27 Vt. 156. -• Surocco V. Geary, 3 Cal. 69, 58 Am. Dec. 385; Corwell v. Ernrie, 2 Ind. 35; Field v. Des Moines, City of, 39 Iowa 575, 578, 583, 587, 18 Am. Rep. 46, 49, 53, 57; Mc- Donald V. Red Wing, City of, 13 Minn. 38, 41, 42; American Print Works V. Lawrence, 21 N. J. L. (1 Zab.) 248; American Print Works V. Lawrence, 23 N. J. L. (3 Zab.) 590, 57 Am. Dec. 420; Russell V. New York, City of, 2 Den. (N. Y.) 461; Struve v. Droge, 10 Abb. N. C. (N. Y.) 142, 62 How. Pr. 233; Keller v. Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613; Thrope v. Bretland & B. R. Co., 27 vt. 156; The Binton, 13 C. C. A. 331, 26 U. S. App. 486, 66 Fed. 71. See notes, 47 Am. Dec. 207; 58 Am. Dec. 588; Ann. Cas. 1913C, 599; 19 L. R. A. 197. Destruction by explosion of gun powder of insured building, by mu- nicipal authorities, to prevent the spreading of a fire that would have consumed it is a loss by fire within the meaning of the policy. — City Pire Ins. Co. v. Corliss, 21 Wend. (N. Y.) 367, 34 Am. Dec. 258. See Pentz V. Aetna Fire Ins. Co., 9 Paige Ch. (N. Y.) 568, reversing 3 Edw. Ch. (N. Y.) 341; Babcock V. Montgomery County Mut. Ins. Co., 6 Barb. (N. Y.) 637, 640; af- firmed, 4 N. Y. 326; Tilton v. Ham- ilton Fire Ins. Co., 14 N. Y. Super. Ct. Rep. (1 Bosw.) 367, 14 How. Pr. 363. Loss of insured building partly by explosion of gun powder and partly by conflagration, is a loss by fire within the meaning of an insurance p o 1 i c y. — Scripture v. Lowell Mut. Fire Ins. Co., 64 Mass. (10 Cush.) 356, 57 Am. Dec. IIL Immunity does not extend to firemen of a private fire company acting negligently. — Bates v. Wor- cester Protective Department, 177 Mass. 130, 135, 58 N. E. 274. Necessity is the only ground for exemption in such cases; property destroyed, in such cases, without any apparent and reasonable nec- essity, the doers of the act are re- sponsible in damages. — Field v. Des Moines, City of, 39 Iowa 575, 18 Am. Rep. 46. See Dunbar v. Alcalde Ayunlomiento of San Fran- cisco, 1 Cal. 355, 452; Taylor v. Plymouth, City of, 49 Mass. (8 Mete.) 462, 465; New York, City CCS Ch. I.] LAWFUL RIGHTS IN USE OF PROPERTY. § 500 questioned,^ — and this rule has prevailed in English law from an early date.'' Destruction of property in such a case is not regarded as a public taking without a consti- tutional provision guaranteeing compensation;^ but in the case where a statute conferring upon public authori- ties the power of destruction of property in such cases and for s^ich a purpose provides a compensation for the property destroyed, such a destruction is regarded as a public taking under the power of eminent domain.^ Private persons have not the privilege in this regard extended to municipalities, and an individual may not, in order to save his o\^ti property from destruction, de- stroy the property of another, however urgent the neces- sity, without subjecting himself to liability for the dam- ages caused to the owner by the destruction of such other's property^ § 509. Exercise of lawful rights in use of prop- erty. Although a lawful act in the use of one's own property may become unlawful when it damages another or his property, — e. g., the use of dangerous explosives, of, V. Lord, 17 Wend. (N. Y.) 285; This passage in the opinion is affirmed, 18 Wend. 126, 132-3; regarded as obiter, and is not in Governor and Company of British harmony with the balance of the Cast Plate Mfg. Co. v. Meredith, opinion, which applies and en- 4 Dumf & E (4 T R ) 794 797 forces the common-law doctrine. 100 Eng. Repr. 1306.' ' ' ' 4 Case of the Prerogative of tho King in Saltpeter, 12 Co. 12, 13, 77 See, also, cases cited in first part ^.^^ ^^^^ ^294, 1295; Mouse's of this footnote. Case, 12 Co. 03, 77 Eng. Repr. 3 "Unless the corporation had 1341; Maleverer v. Spinke, 1 Dyer authority conferred upon it by the 35b, 36a, 73 Eng. Repr. 79, 80. statute defining its powers, to de- 5 Surocco v. Geary, 3 Cal. 69, 58 stroy buildings or other property Am. Dec. 385; Field v. Des» for the purpose of arresting the Moines, City of, 39 Iowa 575; 18 progress of a fire, . . . it could Am. Rep. 46; McDonald v. Red not exercise such power, and Wing, City of, 13 Minn. 38. would not be liable for the acts of c Hale v. Lawrence, 21 N. J. L. its officers which it had no power (1 Zab.) 714, 47 Am. Dec. 190. to autnorize." — Field v. Des Moines, 7 Turner v. Tuolumne County City of, 39 Iowa 575, 18 Am. Rep. Water Co., 25 Cal. 397, 1 Morr. iVlin. 46, Rep. 107. CG9 ^509 CODE PLEADING AND PRACTICE. [Pt. ir, in blasting rock or otherwise, near the property of an- other;^ yet the general rule of law is that where one uses his own property in a law^ful and reasonable manner, any injury resulting to another from such use is damnani absque injuria,^ although the law obligates owners to so use their property and exercise their rights as not to interfere with the rights of others,^ because a person can 1 Carlton v. Onderdonk, 69 Cal. 155, 58 Am. Rep. 556, 10 Pac. 395; Fltz Simmons & C. Co. v. Braun, 94 111. App. 533; Probst v. Hines- ley, 133 Ky. 64, 117 S. W. 389; Longtin v. Persell, 30 Mont. 306, 104 Am. St. Rep. 723, 2 Ann. Cas. 19S. 65 L. R. A. 655, 76 Pac. 699; Blackford v. Herman Construction Co., 132 Mo. App. 157, 112 S. W. 287; Gossett v. Southern R. Co., 115 Tenn. 376, 12 Am. St. Rep. 846, 1 L. R. A. (N. S.) 97, 89 S. W. 737; Hord V. Holston River R. Co., 122 Tenn. 407, 135 Am. St. Rep. 878, 19 Ann. Cas. 331, 123 S. W. 637; Sim- mons V. McConnell, 86 Va. 494, 10 S. E. 838; Cary Bros. v. Morrison, 03 C. C. A. 267, 12 Fed. 177, 65 L. R. A. 659. Injury to cistern on adjacent land by operation of quarry in thinly populated section, held not actionable in Thurmond v. Ash Grove White Line Assoc, 125 Mo. App. 77, 102 S. W. 617. i; Esmond v. Chew, 15 Cal. 137, 143, 5 Morr. Min. Rep. 175; Lin- coln v. Rodgers, 1 Mont. 217, 221. As to damage without wrong, see, ante, § 6. 3 Donnelly v. Hufschmidt, 79 Cal. 74, 21 Pac. 546; Rader v. Davis, 154 Iowa 313, 38 L. R. A. (N. S.) 134, 134 N. W. 849. Defective premises maintained by landlord he is liable to tenant cr to employee of tenant for in- juries. — Davis V. Pacific Power Co., 107 Cal. 563, 48 Am. St. Rep. 156, 40 Pac. 950; Poor v. Sears, 154 Mass. 539, 26 Am. St. Rep. 272, 28 N. E. 1046. See notes 15 Am. St. Rep. 201; 46 L. R. A. 86. Mine locator, by custom or otherwise, can not allow tailings to run free in the gulch and thus rendering valueless other mining claims filed on subsequently, the prior location not being within the maxim qui prior est tempore, po- tior est in jure — he who is before in time is the better in right. — Lincoln v. Rodgers, 1 Mont. 217, 221. See Logan v. Driscoll. 19 Cal. 626, 81 Am. Dec. 91; Fitzpatrick v. Montgomery, 20 Mont. 187, 63 Am. St. Rep. 622, 50 Pac. 418; Chees- man v. Hale, 31 Mont. 583, 68 L, R. A. 410, 79 Pac. 255; Blair v Boswell, 37 Ore. 170, 61 Pac. 342: Carson v. Hayes, 39 Ore. 106, 65 Pac. 817. — Flume from mine in bed of stream depositing tailings on ad- joining land, mine owner liable in damages or to an injunction. — Es- mond V. Chew, 15 Cal. 137, 142; Carson v. Hayes, 39 Ore. 97, 106, 65 Pac. 814. Obstructing pathway party li- able. — Donnelly v. Hufschmidt, 79 Cal. 74, 75, 21 Pac. 546. Seepage from irrigating ditch allowed, owner of ditch liable in G70 ch. I.] EXERCISING RIGHTS — BAD INTENT. §510 not be heard to complain of that which another has a lawful right to do.^ Thus, no action will lie to recover damages because of the decrease in value of property caused by the erection of a wooden building on adjoining land by the owner of such land.^ ^510. Exercise of rights with bad intent. We have already seen that acts done with consent are not actionable/ volenti non fit injuria — an injury is not done to the willing,^ whatever may be the motive or intent;^ and an act which does not amount to a legal injury, — i. e., one in itself lawful, — can not be actionable because it is done with a bad or malicious motive or intent, be- cause, while a malicious motive makes a bad act worse, it can not make that wrong which, in its essence, is law- ful.'* Thus, a common carrier has a common-law right, for the purpose of injuring a consignee, to subject his damages for injury suffered there- from. — Fleming v. Lockwood, 36 Mont. 387, 122 Am. St. Rep. 375, 14 L. R. A. (N. S.) 628, 92 Pac. 963. 4 Boyson v. Thorn, 98 Cal. 578, 583, 21 L. R. A. 233, 33 Pac. 492. 5 McClaskey v. Kerling, 76 Cal. 512, 18 Pac. 433. 1 See, ante, § 498. 2 Id.; Meyer v. Kohn, 29 Cal. 280; Frost v. Witter, 132 Cal. 421, 84 Am. St. Rep. 53, 64 Pac. 705. 3 Raycroft v. Taynor, 68 Vt. 219, 54 Am. St. Rep. 882, 33 L. R. A. 225, 35 Atl. 53. Motives of acts of men is not a concern of the law, so long as the acts themselves are lawful, and the injuries which result from the exercise of a lawful right are damnum absque injuria. — Dis. op. of Thayer, J., in Shaver v. Heller & Merz Co., 48 C. C. A. 48, 108 Fed. 821, 65 L. R. A. 878. See, ante, §§6, 509. See, also, note 62 L. R. A. 673- 728. i Sparks v. McCreary, 165 Ala. 388, 22 L. R. A. (N. S.) 1224, 47 So. 334; Bryson v. Thorn, 98 Cal. 578, 21 L. R. A. 233, 33 Pac. 492; Parkinson Co. v. Building Trades Council, 154 Cal. 581, 21 L. R. A. (N. S.) 550, 98 Pac. 1027; Pierce V. Stablemen's Union, 156 Cal. 70, 103 Pac. 324; Union Labor Hos- pital Assoc. V. Vance Red Wood Lumber Co., 158 Cal. 551, 33 L. R. A. (N. S.) 1034, 112 Pac. 886; People V. Schmitz, 7 Cal. App. 371, 94 Pac. 421 (decision in this case is very questionable, but is cited for what it is worth) ; Arnold v. Moffitt, 30 R. I. 319, 75 Atl. 506; Gamble-Robinson Commission Co. V. Chicago & N. W. R. Co., 94 C. C. A. 217, 168 Fed. 161, 21 L. R. A. (N. S.) 982. As to effect of motive with which act done, see note 62 L. R. A. 673-728. 71 § 510 CODE PLEADING AND PRACTICE. [Pt. II, business to disadvantages over competitors, so long as the exactions are neither undue nor unreasonable, — e. g., may demand the payment in advance of freight charges where goods are consigned to one person, and may ex- tend a credit therefor where consigiied to another and a competitor in the same line of business.^ Where work- men have a right to quit work, even though they do so with the intent to injure their employer, their motive in quitting work can not be considered by the court.^ And a wholesale merchant does not subject himself to a liability in an action at law for damages, or to a suit restrictive in equity, in favor of a manufacturer, by cir- cularizing the retail trade, offering a quantity of the manufacturer's product, which he owns and has on hand, at a ''cut price," for the purpose of injuring such manu- facturer and destrojdng the latter 's trade, and of de- pressing the price of his product on the market;'^ but advertising and selling the goods of one manufacturer as the product of another manufacturer, a competitor in the same line of business, is unfair competition and an injury to the trade-name which vnll be enjoined.^ Legitimate competition in business, by fair and lawful means, by a stronger competitor, affords no ground of action for dam- ages at law or an injunction in equity, even though the business of the weaker competitor is injured, or in fact destroyed or ruined, by the competitive strife.® o Gamble-Robinson Commission L. R. A. 878 (Thaj'er, J., dissent- Co. V. Chicago & N. W. R. Co., 94 ing). See Eureka Fire Hose Co. C. C. A. 217, 168 Fed. 161, 21 v. Eureka Rubber Mfg. Co., 69 L. R. A. (N. S.) 982. N. J. Eq. 168, 60 Atl. 561; Johnson See note 21 L. R. A. (N. S.) 982. v. Seaburj-, 69 N. J. Eq. 703, 61 fi Parkinson Co. v. Building Atl. 5; Reynolds Tobacco Co., Trades Council, 154 Cal. 581, 594, R. J., v. Allen Bros. Tobacco Co., 21 L. R. A. (N. S.) 550, 98 Pac. 151 Fed. 829; William Wrigley. 1032. Jr., Co. V. Grove Co., 161 Fed. 885. 7 Passaic Print Works v. Ely & As to protection of trade-name, Walker Dry-Goods Co., 44 C. C. A. even where there is no valid 426, 105 Fed. 163, 62 L. R. A. 673. trade-mark, see note 65 L. R. A. 8 Shaver v. Heller & Metz Co., 878. 48 C. C. A. 48, 103 Fed. 821, 65 9 Schonwald v. R a gains, ?.2 G72 I ch. I.] FRAUD WITHOUT INJURY. § 511 Doctrine founded on principle expressed in tlie old common-law maxim, ex dolo malo, non oritur actio — out of fraud no action arises; fraud never gives a right of action, ^^ first recognized and approved in the English law by Lord Mansfield.^^ Thus, no contract can arise out of a fraud ; and where an action is brought upon a supposed contract, it can be defeated by showing that it arises from fraud. ^- <§ 511. Fraud without injury. From what is said in the preceding section it is manifest that fraud without injury confers no right of action for damages or other relief.^ Thus, where an agreement was entered into between contractors and property-owners for a pub- lic improvement in a municipal corporation, the owners Avaiving their right under the law to elect to take the contract, in consideration of which the contractors agreed to allow such property-owners a reduction of twenty-five per cent upon their assessments, this mil not afford ground for an action or for relief from their assessments, to other property-owners not invited to enter into said contract, when it is apparent that such other property- owners could not have participated in any profits if the contract for doing the work had been let to the property- owners, under the provisions of the statute, at the con- tract price, and that the assessment upon the lots of such Okla. 230, 39 L. R. A. (N. S.) 858, tation, untrue statements, intent 122 Pac. 203. See Farmers' Loan and knowledge or belief of the & Trust Co. V. Sioux Falls, City party, materiality of misrepresen- of, 131 Fed. 900. tations, and jurisdiction, see Pom- 10 Valentine v. Stewart, 15 Cal. eroy's Eq. Jurisp. (4tli ed.), §§872- 387, 405; Bornheimer v. Baldwin, 891. 42 Cal. 34; Benicia Agricultural As to constructive fraud, what Works V. Estes, 3 Cal. Unrep. 855, constitutes, the essential elements 32 Pac. 940. and classes of, and equitable jur- 11 Holeman v. Johnson, alias isdiction in cases of illegal con- Newland, 1 Cowp. 341-343, 98 Eng. tracts, see Pomeroy's Eq. Jurisp. Repr. 1120-1. (4th ed.), §§922-974. 12 See Broom's Maxims, 349. i Duncan v. Ramish, 142 Cal. As to actual fraud, misrepresen- GSG, 695, 76 Pac. GGl. I Code PI. and Pr.— 43 C73 § 512 CODE PLEADING AND PRACTICE. [Pt. II, property-o\^^lers must have been the same if the contract had been let to the property-owners. ^ § 512. Illegal ok immoral contracts. Illegal and immoral contracts have ever been under the ban of the law; ex turpi contractus actio non oritur — from an im- moral, or iniquitous contract, an action does not arise. That is, all contracts founded upon an illegal or an im- moral consideration can not be enforced by an action ; and this was the doctrine under the civil law,^ as well as at the common law,- and the courts will not lend their aid to one who founds his cause of action upon an illegal or an immoral transaction or contract,^ particularly where the parties are in equal guilt.^ All contracts which have for their object anything repugnant to justice, or which are against the general policy of the common law, or are contrary to the pro\dsions of any statute, are under the ban of the above principle.^ Any instrument which is not prima facie valid, but which exhibits on its face its own invalidity, can not be made the basis of an action.'' But where there is a valid demand independent of the illegal or immoral transaction or contract, or the de- fendant had no concern in such illegal or immoral trans- action or contract,'^ the demand may be sued upon, not- withstanding the connnission of illegal acts during the course of the business out of which the demand grew.* 2 Id. ^ Hinnen v. Newman, .35 Kan. 1 Dig. 2, 14, 27, 4. 709, 12 Pac. 144. 2 Broom's Maxims 350; 2 Kents. 5 Ainsworth v. Miller, 20 Kan. Com. 466; Story on Agency, § 195; 220; State v. Buffalo, City of, 2 1 Selwyn's N. P. 63. Hill (N. Y.) 434, 437. 3 Hinnen v. Newman, 35 Kan. ^^ , _ , „„ ^ , ,r,. _„„.„„ ... _. , eWelton v. Palmer, 39 Cal. 456. 709, 12 Pac. 144; Desbrow v. Creamery Package Mfg. Co., 110 'Miller & Lux v. Enterprise Minn. 237, 125 N. W. 115; Chap- Canal & Land Co., 142 Cal. 208, man v. Meyers, 84 Neb. 368, 121 100 Am. St. Rep. 115, 75 Pac. 770. N. W. 245; Connolly v. Cunning- s Disbrow v. Creamery Package ham, 2 Wash. Tr. 242, 251, 5 Pac. Mfg. Co., 110 Minn. 237, 125 N. W. 473, 477. 115. 674 m ch. I.] INCLUDING BREACH OF CONTRACT. §513 § 513. Inducing breach of contract. The deci- sions are not harmonious upon the question whether a party inducing or procuring another to breach his con- tract with a third person is liable in a civil action for dam- ages to such third person; but the better doctrine, on fundamental principle, as well as the decided weight of authority, is to the effect that he is liable to respond in such damages as the injured party can establish.^ The 1 See, among other cases: ALA. — Tennessee Coal & Iron R. Co. v. Kelly, 163 Ala. 353, 50 So. 1008. ARK.— Mohoney v. Roberts, 86 Ark. 139, 110 S. W. 225. GA.— Southern R. Co. v. Chambers, 126 Ga. 407, 7 L. R. A. (N. S.) 928, 55 S. E. 37. ILL. — Doremus v. Hen nessy, 176 111. 608, 68 Am. St. Rep 203, 43 L. R. A. 797, 54 N. E. 524; London Guarantee & Accident Ins Co. V. Horn, 206 111. 504, 99 Am. St Rep. 185, 69 N. E. 526; Morehouse V. Terrill, 111 111. App. 462; Fidel ity & C. Co. V. Gibson, 135 111 App. 298; Illinois Steel Co. v Brenshall, 141 111. App. 44. ME.— Perkins v. Pendleton, 90 Me. 175, 60 Am. St. Rep. 252, 38 Atl. 96. MD.— Gore v. Condon, 87 Md. 368, 739, 67 Am. St. Rep. 352, 40 L. R. A. 382, 39 Atl. 1042; Knickerbocker Ice Co. V. Gardiner Dairy Co., 107 Md. 563, 16 L. R. A. (N. S.) 746, 753, 69 Atl. 405. MASS.— Berry v. Donovan, 188 Mass. 361, 108 Am. St. Rep. 499, 33 Ann. Gas. 738, 5 L. R. A. (N. S.) 905, 74 N. E. 603; Willcutt & Sons Co., L. D., v. Driscoll (dis. op.), 200 Mass. 129, 23 L. R. A. (N. S.) 1248, 85 N. E. 897. MISS.— Globe & Rutgers Fire Ins. Co. V. Firemen's Fund Ins. Co., 97 Miss. 148, 29 L. R. A. (N. S.) 873, 52 So. 454. N. C— Jones v. Stanley, 76 N. C. 355. OKLA.— .^"honwald v. Ragains, 32 Okla. 239, 39 L. R. A. (N. S.) 862, 122 Pac. 203. TEX.— Raymond v. Yar- rington, 96 Tex. 443, 97 Am. St. Rep. 914, 62 L. R. A. 962, 72 S. W. 580, 73 S. W. 800; Brown Hard- ware Co., J. S., V. Indiana Stove Works, 96 Tex. 457, 73 S. W. 800; Lytle V. Galveston, H. & S. A. R. Co., 100 Tex. 299, 10 L. R. A. (N. S.) 440, SO S. W. 396. W. VA.— West Virginia Transp. Co. v. Stan- dard Oil Co., 50 W. Va. 611, 88 Am. St. Rep. 895, 56 L. R. A. 804, 40 S. E. 591 , Thacker Coal & Coke Co. v. Burke, 59 W. Va. 253, 261, 8 Ann. Gas. 885, 5 L. R. A. (N. S.) 1091, 1102, 53 S. E. 161. FED.— Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 38 L. Ed. 55, 14 Sup. Ct. Rep. 240; Louisville & N. R. Co. v. Bitterman, 75 C. C. A. 192, 144 Fed. 45; Chesapeake & O. Coal Agency Co. v. Fire Creek Coal & Coke Co., 119 Fed. 947. ENG.— Lumley v. Gye, 2 El. & Bl. 216, 75 Eng. C. L. 216, 118 Eng. Repr. 749; Bowen v. Hall, L. R. 6 Q. B. Div. 333. See, also, notes 97 Am. St. Rep. 927; 8 Ann. Gas. 889; 21 L. R. A. 233; 5 L. R. A. (N. S.) 1091-1100; 16 L. R. A. (N. S.) 746; 27 Eng. Rul. Gas. 103-129; 1 Brit. Rul. Gas. 245-282. Procuring discharge of employee not engaged for any definite time, by threatening to terminate con- 675 § 514 CODE PLEADING AND PRACTICE. [Pt. II, same is true of a corrupt combination to injure a person in his business or trade or employment by inducing em- ployers to break their contract of employment, or to in- duce an employee to refuse to remain longer in the employment of his master ;- but a civil action will not lie for conspiracy to do that which the parties may law- fully do.^ § 514. California doctrine. The rule as established by the decisions in California is that no action lies against one who, from malicious motives, but without violence, threats, fraud, or benefit to himself, induces or procures another to violate his contract, where that contract involves a personal relation only.^ The same principle has been applied in Kentucky.^ Where the contract procured to be broken is one other than that of personal relation, the California courts hold that no action will lie against the person causing, inducing or procuring a breach thereof, on the theory that if any loss or damage is suffered by the breach, the party injured may be compensated in an action against the person tract between self and emplo.ver, 797, 54 N. E. 524; Quinn v. Lea- which he had a right to terminate tham (1901), A. C. 495, 70 L. J. at any time, not ground for action P. C. 76, 27 Eng. Rul. Cas. 66, 1 by discharged employee. — Ray- Brit. Rul. Cas. 197. croft V. Tayntor, 68 Vt. 219, 54 As to conspiracy of trade-union Am. St. Rep. 882, 33 L. R. A. 225, to procure discharge of non-union 35 Atl. 33. men, see notes 54 L. R. A. 640, 63 — Improper or unlawful means L. R. A. 534, 1 Brit. Rul. Cas. 245. employed to procure discharge of 282. employee, party liable in damages, 3 See, ante, § 510; Grand Lodge although the discharging employer Order of Sons of Herman v. violated no legal right in making Schultze, 36 Tex. Civ. App. 334, 81 the discharge. — Perkins v. Pendle- S. W. 241. ton, 90 Me. 175, 60 Am. St. Rep. i Boyson v. Thorn, 98 Cal. 580, 252, 38 Atl. 96. 21 L. R. A. 233, 33 Pac. 492. 2 Employing Printers' Club v. 2 Bourlier Bros. v. Macauley, 91 Doctor Blosser Co., 122 Ga. 509, Ky. 135, 11 L. R. A. 550, 15 S. W. 106 Am. St. Rep. 137, 2 Ann. Cas. 60. 694, 69 L. R. A. 90, 50 S. E. 353; Compare: Lumley v. Gye, 2 EL Doremus v. Hennessy, 176 111. 608, & Bl. 216, 75 Eng. C. L. 216, 118 68 Am. St. Rep. 203, 43 L. R. A. Eng. Repr. 749. 676 eh. I.] PUBLIC INJURY — PERJURY. §§ 515-517 breaching the contract, and that the law presumes that in such an action the injured party will recover full com- pensation and indemnity.^ § 515. Procuring payment to self of money KNOWN TO BELONG TO ANOTHER. lu thosc cases whcrc a person wrongfully procures to be paid to himself money which he knows belongs rightfully to another, the party rightfully entitled to the money may maintain an action against such person, for money had and received, to re- cover the same, even though such wrongful payment does not destroy the right of the party rightfully entitled to maintain an action against the debtor to recover the same.^ § 516. Public injury. A private person may not recover damages for a public injury ; it is for the public prosecutor to vindicate wrongs to the community or the public ; a private person is not the medium through which these rights are to be asserted or maintained. Conse- quently, where damages are laid professedly for the bene- fit of the public, as a penalty to secure, by force of the example, future safety for the public, in an action by an individual to recover damages from the owners of a stage-coach for injuries sustained by reason of the up- setting of the coach caused by negligence in piling lug- gage on the roof thereof and making it top-heavy, he can not be permitted to recover such penalty or exemplary damages.^ § 517. Perjury and subornation of perjury'. The fact that a person swore falsely against another in a civil suit, and upon such false and perjured testimony a judg- ment was rendered against such other person, does not 3 Burkett v. Griffith, 90 Cal. 532, See discussion and authorities 25 Am. St. Rep. 151, 13 L. R. A. in note Ann, Cas. 1918D, 245. 707, 27 Pac. 527. i Wardrobe v. California Stage 1 Heywood v. Northern Assur- Co., 7 Cal. 118, 68 Am. Dec. 231. ance Co., 133 Minn. 360, Ann. Cas. 1910D, 241, 158 N. W. 632. 677 § 518 CODE PLEADING AND PRACTICE. [Pt. II, raise a cause of action for damages in favor of such in- jured person against such perjured witness,^ and this has been the rule of law since an early time ;- likewise it has been held that suborning a witness to swear falsely against a person in a criminal prosecution, does not sub- ject the person swearing falsely to a civil action for dam- ages, at the suit of the person injured,^ although it has been said that a person not a party to the suit in which the perjured testimony was given, whose character has been injured by such testimony may maintain an action for damages against the person who suborned the witness to testify falsely.* <§, 518. Right of action as dependent upon rela- tive VALUES. The right of a person to redress for an injury to property can not depend upon the value of the property injured as contrasted with the value of an- other's business enterprise, in the promotion of which business the injury came about. ^ Thus, where the injury complained of is the washing away of the plaintiff's water ditch, and the damage claimed is the loss of water- sales, the cost and value of the ditch as a structure, sep- 1 See, among other cases: CONN. Cunningham v. Brown, 18 Vt. 126, — Bostwick V. Lewis, 2 Day 447. 64 Am. Dec. 140. IND. — Grove v. Brandenburg, 7 As to perjury as furnishing Blackf. 234. LA. — Gunsman v. grounds for civil actions for dam- Hearsy, 28 La. Ann. 709, 26 Am. ages, see 24 L. R. A. (N. S.) 265. Rep. 104. ME.— Dunlap v. Glidden, - Damport v. Sympson, Cro. Eliz. 31 Me. 435, 52 Am. Dec. 625. MASS. 520, 78 Eng. Repr. 769. —Phelps V. Sterns, 70 Mass. (4 3 Taylor v. Bidwell, 65 Cal. 489, Gray) 105, 64 Am. Dec. 61; Parker 4 Pac. 491. V. Huntington, 73 Mass. (7 Gray) -i Rice v. Coolidge, 121 Mass. 393, 36, 66 Am. Dec. 455. N. H.— Stev- 23 Am. Rep. 279. ens V. Rowe, 59 N. H. 578, 47 Am. As to subornation of perjury as Rep. 231. N. Y.— Smith v. Lewis, furnishing ground for civil action 3 Johns. 157, 3 Am. Dec. 469. N. C. for damages, see 24 L. R. A. (N. S.) — Godetti V. Gaskill, 151 N. C. 52. 267. 134 Am. St. Rep. 964, 24 L. R, A. i Hill v. Weisler, 1 Cal. Unrep. (N. S.) 265, 65 S. E. 612. VT.— 724. GTS Cll. I.] TRIVIAL INJURIES. §§ 519, 520 arate and apart from the water-rights, has nothing to do with determining the amount of the damages.^ § 519. Trivial injuries not invading fundamen- tal RIGHT. No cause of action is raised by a trivial injury not invading a substantial right wrongfully, such an in- jury being regarded as damnum absque injuria,^ on the principle expressed in the common-law maxim, de mini- mis non curat lex — the law does not care for, or take notice of, trifling matters ;- except in those cases in which a positive and fundamental right has been wrongfully . invaded, and when this is the case the law furnishes re- dress, no matter how trifling the injury sustained.^ Thus, it has been said that the fact that the plaintiff might be entitled to nominal damages for the negligence of the defendant, this would not entitle the plaintiff to recover the costs in the case, and under the maxim de minimis non curat lex, no question of permanent right exists be- tween the parties to be settled by a trial, and hence it was not error to sustain a general demurrer to the complaint.* § 520. Frivolous and collusive actions. We have already seen that the law does not take cognizance of trifling injuries;^ neither will it take cognizance of ficti- tious suits- — not at present, or of frivolous litigation,^ where no positive fmidamontal right has been invaded, but if such a right has been wrongfully invaded, the court will take cognizance of the action regardless of the 2 Id. Rochester R. Co., 5 Hill (N. Y.) . 1 Weaver v. Eureka Lake Co., 15 170; State ex rel. Greene v. Owen, Cal. 271, 1 Morr. Min. Rep. 642; 125 N. C. 212, 34 S. E. 424. Natoma Water & Min. Co. v. Mc- 4 Kenyon v. Western Union Tel. Coy, 23 Cal. 490, 4 Morr. Min. Rep. Co., 100 Cal. 454, 35 Pac. 75. 490. 1 See, ante, § 519. -> Wall, Ex parte, 48 Cal. 279, 17 2 See, ante, §§ 505-507. Am. Rep. 425; Kenyon v. Western .•?$1.04 involved, action will be Union Tel. Co.. 100 Cal. 454, 35 dismissed under morim de niini- Pac. 75. mis non curat lex. — Galm v. United 3 Seneca Road Co. v. Auburn & States, 39 Ct. of CI. 55. 679 §521 CODE PLEADING AND PRACTICE. [Pt II, amount involved.^ And wliere it is manifest that the plaintiff is entitled to nominal damages merely for the negligence which is the basis of an action, which dam- ages will not entitle him to a judgment for costs, there is no substantial right to be litigated.^ An action brought to recover personal property by a person who has no interest therein, and no expectation thereto, at the insti- gation of an outsider to enable him to perpetrate a wrong, is a fraud upon the defendant.^ § 521. Unnecessary and vexatious actions. The courts will not take cognizance of an unnecessary or vexatious action. Thus, a person who already holds the legal and equitable title to land can not maintain an action to com- pel further conveyance;^ a contest of the nomination of a person to be a candidate for office at a public election, will not be heard after the public election has been held ;^ suit can not be maintained in a court of equity to procure a decree cancelling a record or an instrument void upon its face.^ Where a purchase of intoxicating liquors, in violation of a municipal ordinance, was made at the insti- gation of the authorities of the municipality for the pur- pose of manufacturing a ''test case" under the ordinance, although the seller of the intoxicating liquor was ignorant of the purpose, the court refused to give an opinion as to what sale would constitute a violation of the ordinance.'* 4 Right to office involved, suit will be entertained to determine the right regardless of the emolu- ment; e. g., eight dollars a month and board. — State ex rel. Greene V. Owen, 125 N. C. 212, 34 S. E. 424. See, also, ante, § 519, footnote 3. 5 Kenyon v. Western Union Tel. Co., 100 Cal. 454, 35 Pac. 75. 6 Burdett V. Surdez, 94 Kan. 494, 146 Pac. 1025. 1 Truebody v. Jacobson, 2 Cal. 86. 2 Johnson v. Dosland, 103 Minn. 147, 114 N. W. 465. See Ellison v. Barnes, 23 Utah 183, 63 Pac. 899.' 3 Multnomah County v. Portland Cracker Co., 49 Ore. 345, 90 Pac. 155. 4 Ford V. Denver, City of, 10 Colo. App, 500, 51 Pac. 1015. G80 CHAPTER II. CHARACTER OR NATURE OF, AND FORMS OF, ACTIONS. § 522. In general. § 523. Distinctions abolished — New cause of action not created. § 524. Classification according to nature — Real, personal and mixed actions. § 525. Actions ex contractu and ex delicto. § 526. Actions on express and implied contracts. § 527. Determining character of action — Relief demanded. § 522. In GENERAL. It has already been pointed out that the old common-law forms of action have been done away with in all those jurisdictions having a reformed code of judicature, one general form being substituted for the various and highly technical forms of action theretofore prevailing, for all civil actions, whether at law or in equity.^ But while all the artificial distinctions theretofore prevailing are abolished,- as well as all fic- tions and all the various forms of action,^ the various remedies administered under the former procedure for the various grievances were not abolished.^ Merely the technical form of the action, not the substance thereof, is the thing abolished ; and the pleading, under reformed judicature, must be such as to show (1) the nature of the grievance complained of, (2) the character of the evi- dence required, (3) the measure of the relief to be granted, and (4) be sufficient to show to the court whetlier the relief sought is to be had on the law or the equity side of the court. In other words, while the forms of action are abolished the classification of grievances is not. Professor Bliss has well said that **sucli distinc- tions as exist in the nature of things must be recognized, 1 See, ante, §S 21-30, 3 See, ante, § 29, 2 See, ante, § 30. 4 Id. 681 § 523 CODE PLEADING AND PRACTICE. [Pt. II, and they are equally recognized whether a specific name be given to the suit or action, with a corresponding for- mula, or whether they arise from, and are known only by, the nature of the grievance and the character of the relief."^ In other words, the fundamental principles and classification of substantive law are not changed by the reformed codes of judicature — merely the form in which the cause is to be presented to the court for determina- tion is the thing that is changed. Hence the mastery of the fundamental principles of the substantive law is as much a necessity under reformed as under common-law judicature — formalities, technicalities, trivialities, and "learned" quibbles, only, are swept away. "^ 523. Distinctions abolished — New cause of action NOT CREATED. Distiuctious betwecii causes of action, whether in law or in equity, are abolished by the reformed procedural codes, but new causes of action are not created thereby. The procedural codes have to do solely with the method of procedure in the courts ; not the right of the parties under the fundamental law of the land. The distinction between actions at law and suits in equity are done away with, and the pleading is the same regardless of the side of the court on which relief is to be sought ; whether the cause depends upon legal or equitable prin- ciples, it is to be commenced and prosecuted mthout reference to this distinction.^ The simple form of plead- ing in a court of equity is adopted, in which the applica- tion is always by a bill, no matter what the particular grievance complained of or the remedy to be adminis- tered.^ The principles by which the rights of the parties are to be determined remain unchanged. The distinctions between law and equity are not abolished; these distinc- tions are as broad as they ever were ; the forms of the 5 Bliss on Code Pleading, § 6. 76. See Wilcaux v. Saunders. 4 1 Cole V. Reynolds, 18 N. Y. 74, Neb. 585. ■2 See Bliss on Code Pleading, § 7. 682 m l-h. II.] niFTINCTIOXS AHOLISHED. § 52'] actions alone are affected by the procedural codes."' While no new cause of action is given, parties are allowed to maintain certain actions who could not have main- tained them under the former system of judicature; but in no case can an action be maintained where no action at all could have been maintained before, upon the same state of facts. ^ Where, under the former system of judi- cature, a certain state of facts would have entitled a party to a decree in equity in his favor, under the reformed judicature the same state of facts, in an action prose- cuted in the manner prescribed therein, the party will be entitled to a judgment or a decree granting him the same redress or relief. On the other hand, if the facts are such that the party, under the former procedure, would have been entitled to a judgment, he will, in proceeding as di- rected in the reformed procedural codes, secure the same judgment.'' That is to say, the effect of the abolition of the distinction between actions at law and suits in equity is to substitute the ''civil action" for such proceedings as were formerly known as ''actions at law" or "suits in equity." The plaintiff sets forth in his complaint, indif- ferently, legal or equitable grounds for relief, or both, and the court w^ill administer such relief as the facts in the case warrant, whether they be legal or equitable, or both.« 3 See Jones v. Steamship Cortez, ship Cortez, 17 Cal. 487; Wiggins 17 Cal. 487; Miller v. Van Tassel, v. McDonald, 18 Cal. 126; Smith v. 24 Cal. 458, 463; Dickson v. Cald- Richmond, 19 Cal. 476; Humiston well, 15 Ohio St. 412, 86 Am. Dec. v. Smith, 21 Cal. 129; Miller v. Van 487; Williams v. Englebrecht, 37 Tassel, 24 Cal. 458; O'Connor v. Ohio St. 383; Zeile v. Moritz, 1 Dingley, 26 Cal. 11; Kimball v. Utah 283, 286; Kahn v. Old Tele- Lohmas, 31 Cal. 154; Grain v. Al- graph Min. Co., 2 Utah 174, 11 drich, 38 Cal. 514, 99 Am. Dec. 423; Morr. Min. Rep. 643, 645; Cham- McPherson v. Weston, 64 Cal. 275, berlain v. Marshall, 8 Fed. 398. 280, 30 Pac. 842; Walsh v. McKeen, •1 See footnote 1, this section. 75 Cal. 519, 523, 17 Pac. 673; Wat- 5 Id. son V. Sutro, 86 Cal. 500, 528, 24 « See, among other cases: ARIZ. Pac. 172, 25 Pac. 64; Townley v. — Houghtaling v. Ellis, 1 Ariz. 383, Adams, 118 Cal. 382, 384. 50 Pac. 25 Pac. 534. CAL.— Jones v. Steam- 550; Angus v. Carven, 132 Cal. 691, 683 §524 CODE PLEADING AND PRACTICE. [Pt. II, <§> 524. Classification according to nature — Real, per- sonal AND MIXED actions. At commoii law, and under the old system of judicature, actions were divided, according- to the nature of the subject-matter of the action, into: I. Real Actions; II. Personal Actions, and III. Mixed Actions ; and this classification is retained under the re- formed codes of judicature. 7. Real actions are those for the recovery of specific real property only, in which the plaintiff, — under the old procedure called the demandant, — claims title to lands, tenements or hereditaments, — under the common law in fee-simple, fee-t^il, or for life or a term of years, by such 698, 64 Pac. 1091; Redpath v. Even- ing Elxpress Co., 4 Cal. App. 361, S8 Pac. 287; Graham v. Light, 4 Cal. App. 400, 88 Pac. 373. COLO.— Henry v. Travelers' Ins. Co., 16 Colo. 179, 186, 26 Pac. 318. IDAHO — Wa Ching v. Constantine, 1 Idaho 266; First Nat. Bank v. Bews, 3 Idaho 429, 31 Pac. 318. NEB.— Turner v. Althaus, 6 Neb. 54. N. Y. — Marquat v. Marquat, 12 N. Y. 336, reversing 7 How. Pr. 417; Emery v. Pease, 20 N. Y. 62, 64; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, 12 Abb. Pr, 414, 21 Hc"/. Pr. 296; Barlow v. Scott, 24 N. Y. 40; Davis v. Mor- ris, 36 N. Y. ,569, 3 Transc. App. 226; Corning v. Troy Iron Nail Factory, 40 N. Y. 191, 207; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613, 1 Am. Rep. 601, 9 Abb. Pr., N. S., 156, reversing 8 Abb. Prac, N. S., 246, 57 Barb. 222; Parker v. Laney, 58 N. Y. 469, re- versing 1 Thomp. & C. 590; Will- iams V. Slote, 70 N. Y. 601. .OHIO— Mack V. Bonner, 3 Ohio St. 366; Kloune v. Bradstreet, 7 Ohio St. 323; Clayton v. Freet, 10 Ohio St. 544; Hager v. Reed, 11 Ohio St. 626; Ward v. Howard, 12 Ohio St. 158; Penn v. Hay ward, 14 Ohio St. 302; Dickson v. Caldwell, 15 Ohio St. 412, 86 Am. Dec. 487; Barger v. Cochran, 15 Ohio St. 460; Neil- son V. Fry, 16 Ohio St. 552, 91 Am. Dec. 110; Morgan v. Spangler, 20 Ohio St. 38; Jones v. Timmons, 21 Ohio St. 596; Chinn v. Trus- tees, 32 Ohio St. 236; Culver v. Rodgers, 33 Ohio St. 537; Will- iams v. Englebrecht, 37 Ohio St. 383. S. C. — Parker v. Jacobson, 14 S. C. 118. UTAH— Zeile v. Mor- itz, 1 Utah 283, 286; Kahn v. Old Telegraph Min. Co., 2 Utah 174, 11 Morr. Min. Rep. 643, 645. Regulations by which ordinary constitutional powers exercised by Supreme Court of the state, in criminal cases, over courts of sub- ordinate jurisdiction, not being prescribed in a procedural code, in bringing the case before it the Supreme Court may resort to such writs as were known to the com- mon law. — Lynes v. State, 5 Port. (Ala.). 236, 30 Am. Dec. 557. See People v. Jordan, 65 Cal. 544, 651, 56 Am. Rep. 75, 4 Pac. 663 CS4 Ch. II.] CLASSIFICATION — PERSONAL ACTIONS. § 524- processes as writs of right, formedon, dower and the like.i //. Personal actions are for the recovery of (1) a debt, (2) damages for the breach of a contract, (3) for the recovery of a specific personal chattle, and (4) for the recovery of damages (a) to the person, (b) to personal property, or (c) to real property.- Personal actions are subdivided into actions in form (1) ex contractu and (2) ex delicto;^ that is to say (1) actions founded upon, or for the breach of, an express contract, and (2) actions to recover damages for wrongs unconnected with any contract.* At common law actions upon contract were subdivided into (1) assumpsit, (.2) debt, (3) covenant, (4) detinue, and the like — although detinue was in some respects an action ex delicto.^ At common law actions for damages for a wrong unconnected with any contract were divided into (1) case, (2) trover, (3) replevin, and (4) trespass vi et armis — emphatic words in common-law writs and declarations of trespass, in which acts of force and violence were charged. While all these common-law distinctions in the forms of action in both these classes or divisions of action have been swept away by the re- formed procedural codes, those codes recognize the dis- tinctions between actions founded upon contract and those founded upon a tort as fundamental in the very nature of things, and as highly important;*' for though the procedural codes abolish the distinctions between the common-law forms of actions, the intrinsic difference between the actions, in their nature, remains still, and the fundamental principles by which the forms of action were formerly governed prevail under the reformed judi- cature, and control in determining the rights of the par- 1 1 Chitty's Pleadings (16th Am. 4 i Chitty's PI. (ICth Am. ed.) ed.) 109. 109. 2 Id. 5 Id., 110. ■"• As to actions ex contractu and « Cooper v. London, 102 Mass. ex delicto, see, post, § 525. 58, 60. 685 § 525 CODE PLEADING AND PRACTICE. [Pt. li, ties/ The reformed procedural codes make no change in the rules of evidence, applicable at common law, to the various causes of action comprehended under the general designation of '* actions of tort."** III. Mixed actions are those actions which partake of the nature of both real and personal actions, in which the plaintiff proceeds (1) for the specific recovery of some real property, (2) for damages to real property, as in an action of (a) ejectment, or (b) for waste, and — under the common law — (c) quare impedit,'' and the like ;^" although ejectment has been said to be a personal rather than a mixed action at common law.^^ § 525. Actions ex contractu and ex delicto. The divisions of actions according to their nature has already been set out,^ and is not required to be retabulated in this place. The primary division of all civil actions is into two great classes or kinds : I. Ex contractu and II. Ex delictu. /. Actions ex contractu, those actions arising out of, or founded upon, an express contract.^ This is a term of the civil law, expressive of one of the principal divisions 7 See Houghtaling v. Ellis, 1 brought at common law by the Ariz. 383, 387, 25 Pac. 534; Labert patron of an advowson, where dis- V. Chauviteau, 3 Cal. 458, 58 Am. turbed in his right of patronage; Dec. 415; Magwire v. Tyler, 47 so called from the emphatic words in the old for, by which the dis- turber was summoned to answer "why he hinders" the plaintiff. — 3 dridge V. Adams, 54 Barb. (N. Y.) gj ^^^ ^^^^ 248. 3 Steph. Com. 417; Booth V. Farmers' & Mer- ^^ ^^^ ^aw (5th ed.), 661. chants' Nat. Bank, 65 Barb. (N. Y.) ^^.^ ^^^.^^ ^^ ^^^^^^^ ^^^^^ 457, 459, 1 Thomp. & C. 45; Pais- ^^ ^ ..^^^j ^^^.^^,, Mo. 115; Goulet v. Asseler, 22 N. Y. 225, 78 Am. Dec. 186; El- ley V. Nicholson, 65 N. C. 207; Kewaunee County v. Decker, 30 Wis. 624. 10 1 Chitty's Pleadings (16th Am. ed.) 109. 11 Steph. Com. on Eng. Law (5th s Winship v. Neale, 76 Mass. (10 gd.) 13, also appendix VII, note 3. Gray) 382; Harrison v. Bailey, 99 i ggg ante, §4. Mass. 620, 97 Am. Dec. 63; Blake 2 The question of implied con- V. Damon, 103 Mass. 199. tracts, under the reformed judica- 9 A writ or action which wa;» ture, is discussed, post, § 526. 686 eh. II.] ACTIONS EX DELICTO. § 525 of the grounds of obligations and of actions,^ was adopted into the English common law at an early date,^ and still constantly employed in the law of actions,^ both in the old and the reformed systems of judicature; and under the old system of judicature there were complex and technical rules governing as to who should be made par- ties, either plaintiffs or defendants,'^ which rules have been done away with under the reformed system of judi- cature. II. Actions ex delicto, actions arising out of, or founded upon, misconduct, misfeasance, malfeasance, or tort. This, also, was a term of the civil law, expressive of another of the principal divisions of the grounds of obli- gations and of actions,'^ likewise adopted into the common law of England at an early date,^ and still constantly employed in the law of actions, both under the old and the reformed systems of judicature, and under the old system with the same complex and technical rules as to ])arties, both plaintiffs and defendants,^ which rules are not applicable under the reformed system of judicature. This class of actions also embraces causes of action aris- ing out of crime, or a violation of law ; e. g,, contraband goods seized and condemned ex delicto. ^^ ' Tort is a private wrong, or a personal wrong, as dis- tinguished from a wrong to the public, a crime. A tort is distinguished from a contract (1) in that the party may be arrested on process, and imprisoned on the judgment; (2) in that there is no right of contribution between the several defendants for a joint wrong; (3) in that joint tort-feasors or wrongdoers are severally liable; (4) at :5 Inst, 3, 14, 2; Id., 4, 1, pr.; 7 Inst., 4, 1, tit. and par.; 1 Id., 4, 6, 1, 17, IS; 1 Mackeld. Civ. Mackld. Civ. Law 102, § 195. Law, 101, § 195. g Broct. fol. 10] b, 3 Bl. Com. 117. 4 Broct. fol. 99; 3 Bl. Cora. 117. 5 1 Chittys PI. (16th Am. ed.). «1 Chitty's PI. (16th Am. ed.) p. 2; 1 Tidd's Pr. 1. 68-105. 527. Determining character of action — Relief de- manded. Under the common-law system of pleading the form of the action determined its character; but under the procedural codes, in which there is but one form of ac- tion,^ the common-law distinctions as to the form of action having been abolished,- the complaint must be t' struggle for supremacy of the Marsteller v. Leavitt, 130 Cal. 149, common law in California is dis- 62 Pac. 384; Faulkner v. First Nat. cussed in Kerr's Cyc. Cal. Pol. Bank, 130 CaL 258, 62 Pac. 463; Code, § 4468, notes 2 and 3. In this Southern Pac. R. Co. v. Hyatt, 132 connection the history given in Cal. 240, 64 Pac. 272; Mowry v. Shuck's "History of the Bench and Weisenborn, 137 Cal. 110, 69 Pac. Bar of California," pp. 47-53, is 971. very interesting and valuable. Forms of action are cast aside, 1 Payne v. Tread well, 16 Cal. and now every action is, in effect, 220; Wiggins v. McDonald, 18 Cal. a special action on the case. — 126; Watson v. Sutro, 86 Cal. 528, Rogers v. Duhart, 97 Cal. 500, 32 24 Pac. 172, 25 Pac. 64; Hurlbutt Pac. 570. V. Spaulding Saw Co., N. W., 93 '^ Sampson v. Schaeffer, 3 Cal. Cal. 57, 28 Pac. 795; Rogers v. 19Q; Miller v. Van Tassel, 24 Cal. Duhart, 97 CaL 500, 32 Pac. 570; 463; Kimball v. Lohmas, 31 Cal. GDO ch. II.] CHARACTER OF ACTION — DETERMINING. §527 looked to to determine the character of the action. But the abolition extends to the form of action only,'^ the present form being the same whether at law or in equity,^ the substance of the action determines its character, and it is immaterial to the rights of the plaintiff to recover possession of real property claimed adversely, that he denominates his proceedings by an old common-law iiame.^ Where the facts stated in the complaint are sul)- stantially those required to support a particular com- mon-law action, the principles of pleading and practice which apply to such common-law action are applicable to the facts pleaded under a procedural code.'' That is to say, the character of the action, whether legal or equi- table,— and if the complaint states either it is suffi- cient,'^ — is to be determined from the character of the allegations in the complaint,^ and the relief demanded f 154; Murphy v. Crowley, 140 Cal. 145, 73 Pac. 820. See, also, supra, § 30. 3 DeWitt V. Hays, 2 Cal. 463, 56 Am. Dec. 352. 4 Watson V. Sutro, 86 Cal. 528, 24 Pac. 172, 25 Pac. 64. o Southern Pac. Co. v. Hyatt, 132 Cal. 240, 64 Pac. 272. m. St. Rep. 525; 1 L. R. A. (N. S.J 1184. '10 ell. III.] EFFECT OF WRONG THEORY OF CASE. §53-i ing by osteopathic treatment, there can be no recovery f for the reason that, under counsel's theory of the nature of the cause of action raised by the words complained of, the slander is not of the plaintiff as an individual, but of a general class to which he belongs, and where a gen- eral class is slandered, no one indi\ddual of that class is injured in such a manner as to create a cause of action for damages for the slander in his favor on account of the slanderous words spoken.'^ Thus, to say that "all law- yers are thieves,"^ or to charge cowardice and ill- treatment of noncombatants by a whole army,^ or to make a slanderous disparagement of the officers of a whole regiment,^" and the like, will not give a right to a civil action for the slander in favor of any indi\idual lawyer, member of the army,^^ or officer of the regiment.^- -. The rule is different where the slanderous language is of such a character as to restrict the designation of a 6 Lathrop v. Sundberg, 62 Wash. 136, Ann. C a s. 1912C, 891, 33 L. R. A. (N. S.) 90, 113 Pac. 574. 7 ARK.— Comes v. Cruce, 85 Ark. 79, 14 Ann, Cas. 237, 107 S. W. 185. GA. — Hardy v. Williamson, 86 Ga. 551, 22 Am. St. Rep. 479, 12 S. E. 874. MASS.— Merrill v. Post Pub. Co., 197 Mass. 185, 83 N. E. 419. MICH.— Lewis v. Coule, 3 Mich. 514; Watson v. Detroit Journal Co., 143 Mich. 430, 8 Ann. Cas. 131, 5 L. R. A. (N. S.) 480, 107 N. W. 81. MINN.— Stewart v. Wilson, 23 Minn. 449. MO. — Kenworthy v. Journal Co., 117 Mo. App. 237, 93 S. W. 882. N. H.— Palmer v. Con- cord, City of, 48 N. H. 211, 97 Am. Dec. 605. N. Y.— Sumner v. Buel, 12 Johns. 475; Ryckman v. Del- avan, 25 Wend. 186, rjiversing White V. Delavan, 17 Wend. 49; People V. Eastman, 188 N. Y. 478, 11 Ann. Cas. 30? SI N. E. 459; Hauptncr v. White, 81 App. Div. 153, 80 N. Y. Supp. 895. ENG.— R. V. Alme, 3 Salk. 224, 91 Eng. Repr. 790. 8 Eastwood V. Holmes, 1 Fost. & F. 347. 9 Palmer v. Concord, City of, 48 N. H. 211, 97 Am. Dec. 605. 10 Sumner v. Buel, 12 Johns. (N. Y.) 475. 11 Lieutenant colonel of regi- ment was held to have a right to maintain an action for slander for stating that the regiment was composed of cowards and black- guards, and for that reason had been dismissed and sent home, in Shearlock v. Beardsworth, 1 Murr. (Sch.) 196. 12 state V. Brady, 44 Kan. 435, 21 Am. St. Rep. 296, 24 Pac. 948; Palmer v. Concord, City of, 48 N. H. 211, 97 Am. Dec. 605; Sum- ner V. Buel, 12 Johns. (N. Y.) 474; People V. Eastman, 188 N. Y. 478, 11 Ann. Cas. 302, 81 N. E. 459. 711 §534 CODE PLEADING AND PRACTICE. [Pt. II, class so as to point out a particular locality.^^ And a different rule also prevails in a criminal prosecution charging such a slander.^* 13 ALA. — Chandler v. Holloway, 4 Port. 17; Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 55 L. R. A. 214, 30 So. 625. CAL.— Schomberg v. Walker, 132 Cal. 224, 64 Pac. 290. COL O.— Byers v. Martin, 2 Colo. 605, 25 Am, Rep. 755. GA. — Hardy v. Williamson, 86 Ga. 551, 22 Am. St. Rep. 479, 12 S. E. 874. KY.— Forbes v. John- son, 50 Ky. (11 B. Mon.) 48. MD. — Goldsborough v. Orem, 105 Md. 671, 64 Atl. 36. MASS.— Ellis v, Kimball, 33 Mass. (16 Pick.) 132. N. Y.— Gidney v. Black, 11 Johns. 54; Bornmann v. Star Co., 174 N. Y. 212, 66 N. E. 723; Weston V. Commercial Advertiser Co., 184 N. Y. 479, 77 N. E. 660; Woods V. Gleason, 18 App. Div. 401, 46 N. Y. Supp. 200; Maybee v. Fisk, 42 Barb. 326; Dwyer v. Fireman's Journal Co., 11 Daly 248; Ryer v. Fireman's Journal Co., 11 Daly 251; Cook v. Reif, 52 N. Y. Super. Ct. Rep. (20 Jones & S.) 302, 8 N. Y. Civ. Proc. Rep. 133; McClean V. New York Press Co., 19 N. Y. Supp. 262. S. D.— Barron v. Smith, 19 S. D. 50, 101 N. W. 1105; Whit- ford V. Smith, 19 S. D. 158, 102 N. W. 1135; Nichols v. Smith, 19 S. D. 159, 102 N. W. 1135. UTAH. — Fenstermaker v. Tribune Pub. Co., 12 Utah 439, 13 Utah 532, 35 L. R, A. 611, 43 Pac. 12, 45 Pac. 1197. WASH.— Lathrop v. Sund- berg, 55 Wash. 144, 25 L. R. A. (N. S.) 381, 104 Pac. 176. WIS.— Street v. Johnson, 80 Wis. 455, 27 Am. St. Rep. 42, 14 L. R. A. 203, 50 N. W. 395; Smith v. Utley, 92 Wis. 133, 35 L. R. A. 620, 65 N. W. 744. ENG.— Foxcroft v. Lacy, 1 Hob. 89, 80 Eng. Repr. 239; Le Fanu V. Malcomson, 1 H. L. Cas. 637; Shearlick v. Beardsworth, 1 Murr. (Sch.) 196. Police board member, it has been said, can not maintain an action for libel or slander for charging a corrupt combination of others with the board to protect and promote brothels, gambling, lotteries, and other unlawful prac- tices and businesses, without establishing that the publication was of and concerning h i m. — Caruth v. Richeson, 96 M. 18G, 9 S. W. 633. Wine-grape grower of com- munity, who also makes and law- fully sells wine, can not maintain an action for libel or slander in charging that the killing of a per- son was the result of the "wine Joints," in one of which the quarrel started resulting in the homicide; that the passions of the deceased were inflamed by the de- coction sold as wine, which was probably adulterated and doubt- less never saw a grape. — Comes v. Cruce, 85 Ark. 79, 14 Ann. Cas. 327, 107 S. W. 185. 14 See Kerr's Whart. Criminal Procedure (10th ed.), vol. 2, pp. 1300-1302. 712 CHAPTER IV. ELECTION OF REMEDIES. § 535. In general. § 536. Definition and nature of election. § 537. Classes or kinds of remedies, as to election. § 538. Alternative and conflicting remedies. § 539. Concurrent remedies — Definition, origin, nature. § 540. Concurrent and nonconflicting remedies : Illustra- tions. § 541. When election of remedies may be required. § 542. What constitutes election of remedies. § 543. Time when election to be made — Notice of election. § 544. Conclusiveness of election of remedies — In general. § 545. Abandonment or withdrawal of election. § 546. Mistake in remedy pursued. § 547. Application of doctrine of election — In general. § 548. Acceptance of assets and assumption of debts of partnership. § 549. Approbating and reprobating. § 550. Attachment and replevin. § 551, Common-law and statutory remedies. § 552. Continuing nuisance and trespass. § 553. Contract — In general. § 554. Conditional sale. § 555. Contract and fraud. § 556. Contract and tort. § 557. Benefit received necessary to election. § 558. Corporation without franchise, etc. § 559. Co-tenant excluded from property. § 560. Damage to real property. § 561. Death from negligent or wrongful act — Common-law rule. § 562. Under statute : Election. § 563. Deposit wrongfully paid to another. § 564. Encroachment upon land : Upon rights in street or highway. 713 § 535 CODE PLEADING AND PRACTICE. [Pt. II, § 565. Ex contractu and ex delicto actions. § 566. Landlord and tenant. § 567. Law and equity. § 568. Master and servant. § 569. Mortgage and note. § 570. Passenger injured through negligent or wrongful act. §571. Pretermitted children. § 572. Principal and agent. § 573. Property exempt from debts — Particular obligation. § 574. Purchaser at judicial or execution sale. § 535. In GENERAL,. The selection of the proper or right remedy is as highly important to the success of a cause as is the formulation of a correct theory of the case, treated in the last chapter ; as a matter of fact, the two go hand in hand, for without a correct theory of the case the proper remedy may not be selected, and an inappro- priate remedy adopted leads to disaster in the trial of the cause. Not only an appropriate remedy should be selected, but the one which is the most appropriate, con- sidering the relation of the parties and the facts in the case. The strength or weakness of the cause, as well as the nature and amount of the proof, are matters to be carefully considered in the adoption of the remedy to be pursued. From the inherent nature of some causes the chances of success are better when the cause is tried to a jury, in which s>inpathy or prejudice may be aroused ; if purely, or largely, a matter of law and interpretation, the cause is usually better presented to the court without a jury. The remedy, under the same state of facts, may be either at law or in equity, in contract or in tort, and the like; and the selection of the appropriate remedy will generally be controlled by the nature of the evidence as well as by the nature of the subject-matter or act com- plained of. In equity and tort, the rules of evidence are more liberal than at law and in contract, and things possibly not admissible in either of the latter may plainly 714 I ell. IV.] ELECTION OF REMEDIES — IN GENERAL. § 535 be admissible iu evidence under the former, although more evidence may be required. The election to sue in equity instead of at law/ or in tort instead of contract,'- and the like, or vice versa, if a mistaken remedy,^ may prove fatal to the success of the cause, — as will be more fully explained in detail in the following sections. An action which, in the ultimate analysis, is nothing other than the old action of trespass quare clausum f regit, is maintainable at law only,^ a court of equity having no jurisdiction; and if, by any chance mistake as to the appropriate remedy, suit is instituted in equity, seeking such relief as that court can grant, the suit will be dis- missed or the remedy sought denied. Thus, in the case of a dispute regarding the existence of a right of public way over the property of a person, where the defendant throws down fences erected across and demolishes gates swung over such claimed way, and persists in traveling over or along such claimed way, which he contends is a public highway by dedication, the remedy of the land- owner is an action at law to recover damages for the trespass, and not a suit in equity for an injunction restraining such continued and continuing trespass,'" be- cause of the well-established principle that equity will not take jurisdiction in such an action, except in those in- 1 As to election between law 53 Am. Rep. 342. See: Jacob v. and equity, see, post, § 567. Day, 111 Cal. 571, 44 Pac. 243; - As to election between con- Bishop v. Owens, 5 Cal. App. 83, tract and tort, see, post, §556. 89 Pac. 844; Catching v. Ferrell, ^ As to effect of pursuing a mis- 10 Ga. 576; Nichols v. Satton, 22 taken remedy, see, post, § 546. Ga. 369; Bolster v. Catterlin, 10 4 Nature of writ is shown by the Ind. 118; Campbell v. Coonrandt, formal words summoning the 26 Kan. 67; Tigard v. Moffitt, 13 defendant — ostensusus quare Neb. 565; Parker v. Parker, 82 clausum fugit, to show wherefore N. C. 168; FYink v. Stewart, 94 he broke the plaintiffs close. — 3 N. C. 484; Minning's Appeal, In Bl. Com. 209, 281; Reg. Orig. 93b, re, 82 Pa. St. 373; Smith v. Ocono- 96, 99. monoc, City of, 49 Wis. 694, 6 Smith V. Gardener, 12 Ore. 221, N. W. 329. 715 §536 CODE PLEADING AND PRACTICE. [Pt. II, stances in which irreparable injury will be done,** and there exists no speedy and adequate remedy at law/ ^ 536. Definition and nature of election. An elec- tion of remedies, in the legal sense, is the choosing between two or more alternate and coexisting, but incon- sistent and conflicting, remedies or modes of procedure and relief open to the party, and allowed by law on the same state of facts, ^ the selection of any one of which estops the party so electing from pursuing any of the other remedies." Election of remedies is founded upon the wholesome rule that a party can not, either in the course of the proceedings in a cause or in dealings in pias, occupy inconsistent positions ; that is to say, a party can not be allowed to approbate and reprobate at one and the same time or in succession.^ But the party must actually 6 See: Crescent City Wharf & Lighter Co. v. Simpson, 77 Cal. 286, 19 Pac. 426; Cooper v. Ham- ilton, 8 Blackf. (Ind.) 378; State Sav. Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 310; McPike v. West, 71 Mo. 199; Jerome v. Ross, 7 Johns. Ch. (N. Y.) 315, 11 Am. Dec. 484; Clark v. Syracuse, City of, 13 Barb. (N. Y.) 32; Gause v. Perkins, 56 N. C. (3 Jones Eq.) 177, 69 Am. Dec. 728; Lewis v. North Kingston, Town of, 16 R. I. 15, 27 Am. St. Rep. 724, 11 Atl. 173; Smith v. Pettingill, 15 Vt. 82, 84, 40 Am. Dec. 667; Tifft Co. v. State Medical Institute, 53 Wash. 365, 101 Pac. 1081; Millan v. Fer- rell, 7 W. Va. 229; Taylor v. Col- lins, 51 Wis. 123, 8 N. W. 22. 7 See: Erwin v. Exton, 125 Cal. 622, 58 Pac. 257; Marcy v. Taylor, 19 111. 634; Cyr v. Madore, 73 Me. 53; Wright v. Turkey, 57 Mass. (3 Cush.) 290; Burnham v. Mc- Questen, 48 N. H. 446; Smith v. Gardner, 12 Ore. 221, 53 Am. Rep. 342; Sharp v. Mynatt, 69 Tenn. (1 Lea) 375; Morse v. Ranno, 32 Vt. 600; Barraclough v. Johnson, 8 Ad. & E. 99, 35 Eng. C. L. 499, 112 Eng. Repr. 773; Le Neve v. Mile End Old Town, 8 El. & Bl. 1054, 92 Eng. C. L. 1053, 120 Eng. Repr. 392. 1 Salmon v. Hoffman, 2 Cal. 142; Oregon Mill & Grain Co. v. Hyde, 87 Ore. 517, 169 Pac. 79L 2 See, post, § 544. 3 Espy V. Comer, 80 Ala. 333: Rabitte v. Orr, 83 Ala. 185, 3 So. 420; Lehman v. Clark, 85 Ala. 109, 4 So. 651; Capital City Bank V. Hilson, 64 Fla. 206, Ann. Cas. 1914B, 1211, 60 So. 189; Moshier V. Frost, 110 111. 206; Strosser v. Ft. Wayne, City of, 100 Ind. 443, 452; Jones v. Clouser, 114 Ind. 387, 16 N. E. 797; Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187. As to approbating and reprobat- ing at one time or in succession, see, post, § 549. 716 ch. IV.] NATURE OF ELECTION OF REMEDIES. §53G have at his command two or more alternative and incon- sistent remedies^ before the doctrine of election ap- plies,^ — an election being impossible where the party has but one remedy open to him,*^ — and he must stand in the same position as to both alternatives, and be bound to indicate which of the alternatives he will choose." Not only this, the party must be cognizant of all the facts, and make a free and deliberate choice,^ and not be under a misapprehension as to the law applicable to the case.® Where there is no remedy to relinquish, there is neitlier duty nor right to elect ;^^ and wiiere a party has but one remedy given him by the law, a mistaken selection of an inappropriate remedy will not estop him thereafter to pursue the only remedy really open to him.^^ Where a party has a remedy ex contractu against others, this will 4 As to alternative inconsistent remedies, see, post, § 538. 5 San Bernardino Invest. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487; Elliott V. Collins, 6 Idaho 266, 55 Pac. 301; Rowell v. Smith, 123 Wis. 510, 3 Ann. C a s. 773, 102 N. W. 1. 6 Boise Devel. Co. v. Boise City, 30 Idaho 675, 167 Pac. 1032. 7 Norris v. Harris, 15 Cal. 226, 228. See, also, post, § 538. s Wells, Fargo & Co. v. Robin- son, 13 Cal. 133; GaiTett v. Farwell Co., John v., 199 111. 436, 441, 65 N. E. 363; Linn v. Zeigler, 68 Kan. 528, 533, 75 Pac. 490; Madden v. Louisville, N. O. & T. R. Co., 66 Miss. 258, 276, 6 So. 181; Noyes V. Edgerly, 71 N. H. 500, 504, 53 Pac. 313; Standard Oil Co. v. Hawkins, 74 Fed. 395, 399. Misapprehension as to the law, equity will relieve by permitting withdrawal or discontinuance of remedy, and permit pursuit of the proper remedy, unless the pursuit of the first remedy wrought a change in the position of the parties that would render it in- equitable to allow the pursuit of a different remedy. — Standard Oil Co. V. Hawkins, 74 Fed. 395, 398-9. See: Wells, Fargo & Co. v. Robin- son, 13 Cal. 133; Ward v. Ward, 134 111. 417, 25 N. E. 1012; Nyes- wander v. Lowman, 124 Ind. 584, 24 N. E. 355; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558, 38 Am. St. Rep. 615, 22 S. W. 813; Macknet v. Macknet, 20 N. J. Eq. 54; Dunham v. Ewen (N. J. Eq.), 15 Atl. 245; Becker v. Walworth, 45 Ohio St. 173, 12 N. E. 1; Woodburn's Estate, In re Ap- peal of McMannis, 138 Pa. St. 606, 21 Am. St. Rep. 932, 21 Atl. 16. 10 San Bernardino Invest. Co. v. Merrill, 108 Cal. 490, 494, 41 Pac. 487. 11 See, post, § 546. 717 §§ 537, 538 CODE PLEADING AND PRACTICE. [Pt. II, not prevent him from proceeding in an action ex delicto against a wrongdoer.^^ § 537. Classes or kinds of remedies, as to election. As respects the doctrine of election, there are two classes or kinds of remedies, which are: (1) Alternative and con- flicting remedies, and (2) concurrent and nonconflicting remedies. In this connection the word ''remedy" means, in legal phraseology, a mode prescribed by law to enforce a duty or right, or to prevent or redress an injury or w^rong;^ that is, the means by which an obligation or the corresponding action is effectuated,- not an obligation to guarantee a right or to indemnify against an injury or wrong.^ In other words, the doctrine of the election of remedies has to do only w^th the legal means of enforcing a right or of redressing a wrong, and involves nothing more nor less than the making of a choice between incon- sistent rights, and the selection of the appropriate remedy to enforce the same.* <^ 538. Alternative and conflicting remedies. It is the universal rule that conflicting remedies can not be prosecuted concurrently or successively.^ But the doc- trine of election applies in those cases only in which there 12 Union Cent. Life Ins. Co. v. Scheidler, 130 Ind. 214, 15 L. R. A. 89, 29 N. E. 1071; Strause v. West- ern Union Tel. Co., 8 Biss. 104, Fed. Cas. No. 13531. 1 Missionary Society of M. E. Church V. Ely, 56 Ohio St. 405, 47 N. E. 537; United States v. Ly- Man, 1 Mass. 432, Fed. Cas. No. 15647. 2 Frost V. Wetter, 132 Cal. 421, 426, 84 Am. St. Rep. 53, 64 Pac. 705. 3 United States v. Lyman, 1 Mass. 432, Fed. Cas. No. 15647. 4 Kallbey v. Newberry (N. D.), 170 N. W. 113. 1 Hellings v. Heydenfeldt, 107 Cal. 577, 40 Pac. 1026; Mines v. Ward, 121 Cal. 115, 120, 53 Pac. 427; Berkel Co. v. Nast, 20 Cal. App. 651, 129 Pac. 945; Bank of Santa Fe v. Haskell County Commrs., 61 Kan. 785, 60 Pac. 1062; Junkins v. Simpson, 14 Me. 364; Littlefield v. Brown, 1 Wend. (N. Y.) 398, 404; McElroy v. Mancius, 13 Johns. (N. Y.) 121; Sanger v. Woods, 3 Johns. Ch. (N. Y.) 416, 422; Butler v. Miller, 1 N. Y. 496; Schoonmaker v. Kelly, 42 Hun (N. Y.) 299, 304; Gaffney V. Megrath, 23 Wash. 476, 63 Pac. 520; First Nat. Bank v. Neilsen, 92 Wash. 84, 159 Pac. 113. 718 eh. IV.] ALTERNATIVE, ETC., REMEDIES. § 538 are two or more appropriate ways of enforcing the party's rights in the controversy,- and when the relation of the parties necessary to the pursuit of the one success- fully are such that the concurrent existence of the rela- tions necessary to the successful prosecution of the other, or either of the others, is impossible.^ Where two or more remedies are available to a party, and they are inconsis- tent with each other, the choice of one with knowledge, or with a reasonable means of knowledge, of the facts, has the effect to extinguish the other remedy or remedies.* The inconsistency of coexistent remedies is to be deter- mined by a consideration of the subject-matter of the action and the relations of the parties with reference to the rights sought to be enforced, as the same are asserted in the pleadings.^ Thus, where under the terms of a lease a failure to pay an installment of the rent accelerates the maturity of the installments for the entire term, and also authorizes the landlord to take possession of the premises, the landlord may elect (1) to sue for the entire amount of the rent, accrued and to accrue, for the entire term of the lease, or (2) to retake possession of the premises; but he can not do both.® A party who is entitled to rescind a con- tract of sale because of fraud in the purchase, on learning of the fraud, may (1) apply for and obtain an attachment upon the other property of the purchaser, as debtor under the contract, or (2) may disaffirm the contract and re- plevin the property ; but he can not do both.'^ Likewise, a party induced by fraud to enter into a contract, upon 2 See, ante, §536, footnote 5. Pac. 1073; Achey v. Creech, 21 SRowell V. Smith, 123 Wis. 510, Wash. 319, 58 Pac. 208; Harding 3 Ann. Cas. 773, 102 N. W. 1. v. Atlantic Trust Co., 26 Wash. 4 Parke & Lacy Co. v. White 536, 67 Pac. 222; Rowell v. Smith, River Lumber Co., 101 Cal. 37, 35 123 Wis. 510, 3 Ann. Cas, 773, 102 Pac. 442; Berkel Co. v. Nast, 20 N. W. 1. Cal. App. 651, 129 Pac. 945; Rem- 5 Capital City Bank v. Hilson, ington Paper Co. v. Hudson, 04 64 Fla. 206, Ann. Cas. 1914B, 1211, Kan. 43, 67 Pac. 636; James v. 60 So. 189. Parsons, 70 Kan. 156, 78 Pac. 438; c See, post, § 566. Ullrich V. Bigger, 81 Kan. 756, 106 7 See, post, § 555. 719 §538 CODE PLEADING AND PRACTICE. [Pt. 11, discovering tlie fraud, may (1) rescind the contract, and, after restoring to the party whatever he may have re- ceived thereunder, sue for and recover back the entire consideration paid, or (2) may retain what he has received and sue for and recover such damages as he can establish to have been occasioned by the fraud ; but he can not have both the consideration paid and damages.^ A plaintiff can not sue at law and prosecute to an adverse judgment, and then sue in equity for the same cause of action on the same state of facts.^ Thus, a party who sues on a policy of insurance with a warranty, pleading compliance there- with, on judgment against him on the ground of breach of warranty, can not then maintain a suit in equity for a reformation of the insurance policy by striking out the warranty, alleging the same was contrary to the verbal agreement, and that it was inserted by mistake.^*^ But an unsuccessful use of a remedy supposed to be, but in effect not, appropriate to \dndicate the right of a particular matter,^ ^ either because the facts turn out to be different from what the plaintiff supposed them to be, or because the law applicable to the facts is found to be different from what it was supposed to be, although the first action proceeds to an adverse judgment, this does not estop or preclude the plaintiff from thereafter invoking the proper remedy in another suit.^- Thus, where a party sues to enforce a supposed valid agreement to answer for the sRodermund v. Clark, 46 N. Y. 354; Bowen v. Mandeville, 95 N. Y. 240, affirming 29 Hun 42; Van de Wiele V. Garbade, 60 Ore. 585, 120 Pac. 752. See, also, post, § 555. 9 See, post, § 567. 10 Washburn v. Great Western Ins. Co., 114 Mass. 175. See, as enforcing the same principle, among other cases, Thomas v. Joslin, 36 Minn. 1, 1 Am. St. Rep. 624, 29 N. W. 344; Spurr v. Home Ins. Co., 40 Minn. 24, 42 N. W. 206; Rossman v. Tilleny, 80 Minn. 160, 81 Am. St. Rep. 247, 83 N. W. 42; Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498, 33 Am. Rep. 655 (but basing the decision on res adjudicata instead of election). 11 As to effect of adopting a remedy not open to the party, see, post, § 546. 12 Rowell V. Smith, 123 Wis. 510, 3 Ann. Gas. 773, 102 N. W. 1. 720 ch. IV.] CONCURRENT REMEDIES. § 530 debt, default, or miscarriage of another, on it appearing from the evidence that there was no such valid agreement executed, with judgment against the plaintiff, he may thereafter maintain an action (1) to compel specific per- formance of a verbal agreement and to make a valid guar- anty, or (2) to reform a defectively written guaranty so as to make the same in accordance with the intention of the parties.i3 The reason for this is the fact that the state of facts necessary to a recovery on the first cause did not coincide with the facts necessary to a recovery in the sec- ond cause.^* § 539. CONCUKRENT REMEDIES DEFINITION, ORIGIN, AND NATURE. The term ''concurrent remedies," as here used, means running together ; having the same authority ; con- tributing to the same event; effectuating the same end. In the civil law, concurrence, technically ''concurrere," is a term applied to actions where two or more meet in, or may be brought by, the same person; that is, to be equally available to a party.^ But at the civil law two lucrative actions can not concur, or meet, in the same per- son and for the same thing — traditum est, duas lucrativas causas in eundem hominem, et eandem rem.^ ''Con- course" is the term used in the Scotch law, but a concourse of actions is not allowed to the same person by that law, except in special cases.^ The concurrence of two or more actions for the same thing seems to have been recognized in the common law from the earliest times — ubi dujc actiones de eadem re concurrent, "where two actions con- cur for the same thing" ;'' cum quis plures habeat actiones concurrentes de eadem re, "where one has several con- current actions in respect to the same matter or thing. "^ The phrases "concurrent actions" and "concurrent reme- dies" are in constant use in English and American judica- 13 Id. 2 Inst, 2, 20, 6. 14 Id.; Barth v. Loeffelholtz, 108 3 Ersk. Inst. b. 4, tit. 1, § 64. Wis. 5G2-568, 84 N. W. 846. 4 Broct. fol. 144. 1 1 Mackeld. Civ. Law 195, § 198. 5 Id. I Code PI. and Pr.— 46 721 §540 CODE PLEADING AND PRACTICE. [Pt. TI, ture; but these phrases do not necessarily import that both or all actions can be pursued at the same time, or that all the remedies may be administered/ or even that the actions are ' ' coextensive. ' '^ §540. Concurring and nonconflicting remedies : Illustrations. In those cases in which a party has two or more remedies which are concurrent and nonconflicting, but consistent with each other, each may be pursued at one and the same time,^ or successively; but a satisfaction on one remedy is a satisfaction of all.- Thus, a sub-contractor may concurrently prosecute (1) an action to enforce a mechanics' lien against property, and (2) an action against the contractor to recover the sum due him.^ But this rule is not without exceptions. Thus, a mortgagee may (1) foreclose his mortgage in equity and sell the property to realize the amount of his claim, and (2) sue at law upon the note or bond secured by the mortgage, and issue an execution against his debtor; but he can not maintain at one and the same time an action at law and a suit in equity.* Illustrations : An action to trace public funds deposited by a state treasurer in a bank which subsequently failed, and accepting dividends from the receiver of the bank, does not estop the state to pursue its remedy on the bond of the treasurer.^ Claimants for supplies furnished to a receiver may consolidate their actions with a mortgage foreclosure against the receiver and seek to have their claims declared prior to the mortgage lien, and failing c See Thomas, Ex parte, 10 Mo. App. 24, 25, holding that the phrase "concurrent remedies," as used in the Missouri constitution respecting the prosecution of crimes other than felonies by "in- dictment or information," • means "one or the other." 7 Sinnott v. Feiock, 164 N. Y. 444, 80 Am. St. Rep. 736, 53L. R.A, 565, 59 N. E. 265. 1 Rowell V. Smith, 123 Wis. 510, 3 Ann. Gas. 773, 102 N. W. 1. 2 Id. 3 Hunt V. Darling, 26 R. I. 480, 69 L. R. A. 497, 59 Atl. 398. 4 See, post, § 569. 5 State V. Gramm, 7 Wyo. 329, 40 L. R. A. 690, 52 Pac. 533. 722 C3l. IV.] ELECTION OF REMEDIES REQUIRED WHEN". § 541 in that may prosecute the original action against the plaintiff, who had the receiver appointed.*^ A creditor who has accepted a transfer of an interest in an insurance policy on property theretofore burned, is not estopped to proceed by garnishment to attach the money due to his debtor in the hands of the insurance company/ Follow- ing, as a trust fund, in the hands of a receiver money wrongfully converted by an insolvent corporation, does not preclude the maintenance of an action against the parties by whose wrongful act the funds were converted.* The holder of a fire insurance policy on a burned building, in an action brought ten months after the fire, alleging performance of conditions in a deed deposited in escrow, is not estopped to claim the condition was not performed at the time of the fire.^ Proceeding under a general road law for the opening of a road and the condemnation of land for that purpose, does not bar a proceeding under the eminent domain act for condemning land for a road.^** Likewise, proceeding under a void statute to have land' condemned for a private road does not preclude the party from claiming a right of way by prescription.^^ But the issuance of an execution on a deficiency judgment in equity may preclude the party from maintaining an action at law for the relief sought.^^ § 541. When election op remedies may be required. It follows from what has been said in the preceding sec- tion that an election of remedies can not be required unless the remedies open to the party are inconsistent and conflicting,^ and the party has a choice of remedies arising 6 German Nat. Bank v. Best & 9 Pomeroy v. Aetna Ins. Co., 8G Co., J. D., 32 Colo. 192, 75 Pac. 398, Kan. 214, 120 Pac. 344. 7 Potter V. Northup Banking Co., lo Williams v. Butte County 59 Kan. 455, 53 Pac. 520. Comrs., 48 Colo. 541, 111 Pac. 71. 11 McKim V. Carre, 72 Kan. 461, 83 Pac. 1105. s Sweet V. Montpelier Sav. Bank & Trust Co., 69 Kan. 641, 77 Pac 538. See, also, supra, §536, footnote 12 See, post, §569. 10 and text. 1 First Nat. Bank v. Regents of 723 ^541 CODE PLEADING AND PRACTICE. [Ft. II, out of tlie same state of facts f he must stand in the same position as to both remedies.^ Thus, a defendant can not be compelled to elect between a denial of title in the plain- tiff and a plea of the bar of the statute of limitations.^ Where two counts are based upon the same cause of action, the plaintiff may, as a general rule, on motion of the defendant, be compelled to elect upon which count he will proceed,^ except in those cases in wdiich the knowl- edge as to the nature of the cause of action and the lia- bility of the defendant are peculiarly with the defendant, as noted below\^ But in those cases where only one of several counts or causes of action is properly and effec- tively stated in the complaint, the defendant can not require the plaintiff to elect; there can be no election under such a state of the pleadings.'^ Where there are two averments as to damages, one only proper pleading, including both grounds of damages set out in the com- plaint, the plaintiff can not be put to an election."^ The- facts being peculiarly within the knowledge of the defen- dant, and the plaintiff being ignorant of the precise na- ture and limits of the defendant's liability, he may state his cause of action variously in different counts of the complaint, to meet the varying phases of the evidencf^, and should not be required to elect on which count he will proceed f at least not until the evidence is all in. In the case where a person claiming an exemption is uncertain whether, as a matter of law, he is entitled to it as a farmer or as a teamster, he is entitled to plead both claims and recover according as the facts establish ; he can not University of Idaho, 26 Idaho 15, 140 Pac. 771. 2 O'Donnell v. McCool, 89 Wash. 537, 154 Pac. 1090. See, ante, § 536, footnote 5. 3 See, ante, § 536, footnote 7. 4 Wilson V. Cleaveland, 30 Cal. 192. 5 Anthony v. Savage, 2 Utah 466. 6 See footnote 9, this section. T Chamberlain v. Townseud, 72 Ore. 207, 142 Pac. 782. 143 Pac. 924. See, also, ante, § 536, footnotes 5-7; § 538, footnote 2. s Fox V. Oakland Consol. Street R. Co., 118 Cal. 55, 68, 62 Am. St, Rep. 216, 50 Pac. 25. n Rucker v. Hale, 105 Cal. 425, 38 Pac. 962. 724 ch. IV.] ELECTION OP REMEDIES — WHAT IS AN. § 542 be compelled to elect between them.^° A creditor, resident in the state of the attachment, attaching property of a nonresident insolvent concern, before the affairs of the concern are placed in the hands of a receiver, served with notice of the subsequent appointment of a receiver in such other state, is not put to an election between his attach- ment and a right to share in the estate, but may avail himself of the security thus obtained, and if the proceeds are insufficient to pay his claim in full, he may present his claim for any balance to the receiver the same as other creditors." In equitable remedies there is no rule of law requiring a party to resort to one in preference to another equitable remedy, both remedies being equally applicable to the facts constituting the cause of action or defense, and both being equally available to the party ;^- the choice is within his uncontrollable discretion. § 542. What coxstitutes election of remedies. The doctrine of the election of remedies, where it applies, as a general rule, relates to the first pronounced act of elec- tion or suit, and makes such election a defense to the prosecution of a second action or suit on a theory as to the remedy inconsistent with the theory as to remedy in the first action or suit.^ Any decisive act of the party, with knowledge of his rights and of the facts in the case, constitutes an election as to conflicting and inconsistent remedies.- Thus, it has been said that the mere coin- mencement of action at law or a suit in equity, where all the facts are known, may constitute an election of reme- dies, and preclude the party from pursuing another, and 10 Van Lue V. Wahrlich-Corbett 112 Atchison, City of, Board of Co., 12 Cal. App. 749, 108 Pac. Education v. Scoville, 13 Kan. 17. 717. 1 Mizell Live Stock Co. v. Mc- 11 Ward V. Connecticut Pipe Caskill Co., J. J., 62 Fla. 239. Ann. Mfg. Co., 71 Conn. 345, 71 Am. St. Cas. 191.'^D, 1197, Sfi So. 391. Rep. 207, 42 L. R. A. 706, 41 Atl. 2 Sangpr v. Wood, 3 Johns. Ch. 1057. 'N. Y.) 416. 725 §542 CODE PLEADING AND PRACTICE. [Pt.TI, enable the defendant to plead the first action or suit in bar to a subsequent one.^ Bringing a suit to redeem from a foreclosure sale, has been said to preclude the party from insisting on the invalidity of such sale.* On the other hand it has been said that something more than the mere bringing of an action at law, or instituting a suit in equity, is necessary to make an election final and binding upon the party ; that the act must be a clear and affirmative one changing the relations of the parties to the subject- matter,^ Thus, it is held that merely commencing an attachment and filing a bill in equity on the ground of fraud in procuring credit on the purchase," or commenc- ing an attachrrient, and dismissing the proceedings before judgment, and before the rights of other parties have intervened,'^ does not constitute a binding election of in- consistent remedies. In seeming opposition to this doc- trine, it has been said that the proof of a claim in bank- 3 Lloyd V. Brewster, 4 Paige Ch. (N. Y.) 537, 27 Am. Dec. 88; Mor- ris V. Rexford, 18 N. Y. 552; Bank of Beloit V. Beale, 34 N. Y. 473, affirming 20 N. Y. Super. Ct. Rep. (7 Bosw.) 611, which affirmed 11 Abb. Pr. 375, 20 How. Pr. 331; Conrow v. Little, 115 N. Y. 387, 393, 5 L. R. A. 693, 22 N. E. 346; Rose V. Rundall, 86 Wash. 422, 150 Pac. 614. Goods sold to agent of undis- closed principal, vendor may elect to sue (1) agent alone or (2) un- disclosed principal, but he can not sue one after suing the other. — Mantage v. Poole, 15 Hun (N. Y.) 556. 4 Horn V. Indianapolis Nat. Bank, 125 Ind. 281, 9 L. R. A. 676, 25 N. E. 558. 5 See Deans v. Dunkins, 33 Ala. 47; Bennett v. Goldthwait, 109 Mass. 494, 12 Am. Rep. 742. Disputed question of effect of bringing an action as an irrevo- cable election, discussed in John- son-Brinkraan Commission Co. v. Missouri Pac. R. Co., 126 Mo. 344, 47 Am. St. Rep. 675, 26 L. R. A. 840, 28 S. W. 870; Fowler v. Bowery Sav. Bank, 113 N. Y. 450, 10 Am. St. Rep. 479, 4 L, R. A. 145, 21 N. E. 172; Conrow v. Little, 115 N. Y. 387, 5 L. R. A. 693, 22 N. E. 346; Terry v. Munger, 121 N. Y. 161, 18 Am. St. Rep. 903, 8 L. R. A. 216, 24 N. E. 272; Grossman v. Universal Rubber Co., 127 N. Y. 34, 13 L. R. A. 91, 27 N. E. 400, and in the notes appended to those cases in both series of selected and an- notated cases. 6 Grossman v. Universal Rubber Co., 127 N. Y. 34, 13 L. R. A. 91, 27 N. E. 400. 7 Johnson-Brinkman Commission Co. V. Missouri Pac. R. Co., 126 Mo. 344, 47 Am. St. Rep. 675, 26 L. R. A. 840, 28 S. W. 870. 726 ch. IV.] ELECTION OF REMEDIES — WHAT IS AN. § 542 ruptcy is the election of an inconsistent remedy which has the effect to bar the prosecution of a suit already com- menced on the same claim,^ although there are authorities to the contrary;^ but where a claim has been presented and proved in bankruptcy, and a discharge in bankruptcy is refused, an action on the claim proved may be main- tained;^^ and likewise the proof of a claim against an insolvent corporation, does not bar a subsequent suit against the officers and stockholders to charge them with the claim, or so much of it as remains unpaid. ^^ And the commencement and pendency of an action on a contract for goods sold and delivered will not prevent a second action for the conversion of the same goods ;^- nor will an action to set aside a debtor's assignment for the benefit of creditors, on the ground of fraud, constitute such an election of remedies as will debar the party from sharing in the distribution of the estate pending such suit.^" Inconsistent positions or remedies prevailing, the occu- pying of the one or the attempt to enforce the other, is an abandonment of all inconsistent positions or remedies. ^^ Thus, a person availing himself, for his benefit, of an unconstitutional statute can not, in a subsequent litigation against himself, set up the unconstitutionality of the statute as a defense.^^ And an action to disaffirm a cou- 8 Bennett v. Goldthwait, 109 Action for money had and re- Mass. 494, 12 Am. Rep. 742; Cook ceived, however, has said to bar a V. Coyle, 113 Mass. 252; Cutter v. subsequent action against the Evans, 115 Mass. 27; Goodenow v. same defendant for conversion. - Hall, 125 Mass. 587. See Droege v. Carroll v. Fethers, 102 Wis. 4G3, 78 Ahrens & O. Mfg. Co., 163 N. Y. n W 604 470. 57 N. E. 747. g^^" ^,^ ^ ,,, 9 Hill V. Phillips, 14 R. I. 93; Brandon Mfg. Co. v. Frazer, 47 Vt. 88, 19 Am. Rep. 118. 10 Valpey v. Rea, 124 Mass. 99. '^ ^ose v. Rundall. S6 Wash, ii:, 11 Chamberlain v. Hugenot Mfg. l^^ P^c. 614. Co., 118 Mass. 532. i'- St. Louis, City of, v. St. Louie;, 12 Wright V. Ritterman, 27 N. Y. I. M. & S. R. Co., 248 Mo. 27, 154 Super. Ct. Rep. (4 Robt.) 704, 1 S. \V. 60; Daniels v. Tearney, 102 Abb. Pr. N. S. 428. U. S. 415, 26 L. Ed. 187. 727 1.! Mills v. Parkhurst. 126 N. Y. 89, 13 L. R, A. 472. 26 X. E. 1041. §543 CODE PLEADING AND PRACTICE. [Pt. IT, tract and to have a forfeiture declared, is an abandonment of a pending action for the recovery of unpaid purchase money under such contract.^^ § 543. Time when election to be made — Notice of ELECTION. A right or duty of election between two or more coexisting and conflicting remedies or actions, by relinquishing one or more of the actions or remedies by some positive act, must be exercised while the remedies are yet open to the party,^ and the election may be made before the commencement of the action,'- or at any time before trial. Thus, where a complaint set up two causes of action involving different remedies under a conditional sale of personal property, consisting of (1) facts showing a balance due on the purchase price, and (2) facts show- ing that defendants had forfeited the right to the prop- erty by reason of default in payment of the purchase price ; and the prayer was (1) for a balance claimed to be due upon the purchase price, and (2) for a recovery of the property, under which the plaintiff caused a seizure of the property under a writ of replevin, an answer to the merits was filed without objection to the dual character of the complaint and of the remedies pursued. On the trial the question of election was raised by the defendant, and the plaintiff promptly declared that he elected to pro- ceed with the replevin. The election was held to have been made within time.^ Notice of election is required to be given in those cases in which the defendant is allowed time to answer until the 16 Rose V. Rundall, 86 Wash. 422, 150 Pac. 614. See, post, § 549. 1 San Bernardino Invest. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487. See, also, ante, § 536, footnotes 5-7. 2 Election before suit commenced in cases upon the conditional sale of property. — See Rainey v. Smith, 56 Wash. 604, 106 Pac. 160; Stew- art & Holmes Drug Co. v. Reed. 74 Wash. 410, 133 Pac. 577; Win- ton Motor Carriage Co. v. Broad- way Automobile Co., 65 Wash. 650, 37 L. R. A. (N. S.) 71, 118 Pac. 817; Thompson Co. v. Murphim, 79 Wash. 672, 140 Pac. 1073. 3 Carolin v. Williams, 87 Wash. 52, 151 Pac. 87. 728 ch. IV.] CONCLUSIVENESS OF ELECTION. §544 plaintiff has elected on which of two counts in his com- plaint and of conflicting remedies he will proceed to trial. This notice should be given by the service of a copy of the complaint together with a notice of his election.^ § 544. Conclusiveness of election of remedies — In GENERAL, In those cases in which there are coexistent remedies of an antagonistic and inconsistent character, a party is required to elect which one he will pursue ; arid having once elected, with a full knowledge of all the facts, he is bound by his election,^ and is confined to the remedy which he first preferred and adopted,- even though a 4Willson V. Cleaveland, 30 Cal. 192. 1 Iselin V. Henlein, 16 Abb. N. C. (N. Y.) 73, 2 How. Pr. N. S. 211, 7 N. Y. Civ. Proc. Rep. 431; Rob- erts V Ely, 9 N. Y. St. Rep. 796; affirmed, 113 N. Y. 128, 20 N. E. 606; Stewart v. Huntington, 2 N. Y. Supp. 205; affirmed, 124 N. Y. 127, 26 N. E. 289; Noyes, In re, 5 Dam. (N. Y.) 309. Beneficiary accepting bounty of testator can not insist that pro- visions to his prejudice shall be ignored. — Noyes, In re, 5 Dem. (N. Y.) 309. 2 Id. See, also, among other cases: ALA. — Eufaula Grocery Co. V. Missouri Nat. Bank, 118 Ala. 414, 24 So. 389. FLA.— Capital City Bank v. Hilton, 64 Fla. 206, Ann. Cas. 1914B, 1211, 60 So. 189. IDAHO — Mark & Means Transfer Co. v. Mackenzie, 9 Idaho 174, 73 Pac. 135; Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598, Ann. Cas. 1913E, 120, 123 Pac. 481. IOWA— McLean v. Ficke, 94 Iowa 283, 295, 62 N. W. 753. MO.— Nanaon v. .Jacob, 93 Mo. 331, 3 Am. St. Rep. 531 6 S. W. 246. NEB.— Turner v. Grimes, 75 Neb. 416, 106 N. W. 465. N. Y.— Bank of Beloit v. Beale, 34 N. Y. 473; Rodermund v. Clark, 46 N. Y. 354; Kennedy v. Thorp, 51 N. Y. 176, reversing 2 Daly 258, 3 Abb. Pr. N. S. 131; Fowler v. Bowery Sav. Bank, 113 N. Y. 450. 10 Am. St. Rep. 479, 4 L. R. A. 145, 21 N. E. 172; Terry v. Munger, 121 N. Y. 170, 18 Am. Rep. 803, S L. R. A. 220, 24 N. E. 270; Droege V. Ahrens & O. Mfg. Co., 163 N. Y. 470, 57 N. E. 747; Terry v. Buck, 40 App. Div. 422, 57 N. Y. Supp. 980; Fields v. Bland, 59 How. Pr. 85, 8 Abb. N. C. 221, 81 N. Y. 239; Boots V. Ferguson, 46 Hun 131; Cassidy v. New York, City of. 62 Hun 364, 17 N. Y. Supp. 71; Dietz V. Field, 17 Misc. 27. 39 N. Y. Supp. 257; affirmed, 10 App. Div. 427, 41 N. Y. Supp. 1087; Seeman v. Band- ler, 26 Misc. 372, 374, 50 X. Y. Supp. 210. OHIO— Becker v. Wal- worth, 45 Ohio 169, 12 N. R. 1. ORE.— Frances v. Bohort, 7J Oro. 1, L. R. A. 1910A, 922. 143 Pac. 921). 147 Pac. 755. WIS.- Crook v. First Nat. Bank, 83 Wis. 42, 35 Am. St. Rep. 17, 52 N. W. 1131; Carroll v. Fethers, 102 Wis. 430, 443, 78N.W. 604. 729 §544 CODE PLEADING AND PRACTICE. [Pt. il, judgment in liis favor on that remedy fails to afford the relief sought,^ and is bound thereby both in the trial court and on appeal.* But this rule applies, and the party is estopped, in those cases only in which there are two or more inconsistent remedies open to him.^ The rule ap- plies equally to the plaintiff and to the defendant in a See notes 44 L. R. A. (N. S.) 25, L. R. A. 1916A, 925. Attachment of agent's property by a person who has been injured through agent's act, bars subse- quent action against the principal for agent's wrong. — McLean v. Ficke, 94 Iowa 283, 62 N. W. 753. Bank of deposit sued for amount of draft precludes action against bank of collection. — Eufaula Gro- cery Co. V. Missouri Nat. Bank, 118 Ala. 414, 24 So. 389. Election between inconsistent remedies made with full knowl- edge of the facts, a party is con- fined to the one he has made. — ■ Capital City Bank v. Hilson, 64 Fla. 206, Ann. Cas. 1914B, 1211, 60 So. 189. Proof of claim before assignee in insolvency, bars subsequent re- scission of sale on ground of fraud, where all the facts were known at time of making proof.^ Droege v. Ahrens & O. Mfg. Co., 163 N. Y. 470, 57 N. E. 747. Replevin against assignee of al- leged fraudulent vendee, bars ac- tion against vendee for purchase price. — Seeman v. Bandler, 26 Misc. (N. Y.) 372, 374, 56 N. Y. Supp. 210. Suit on bill of sale prosecuted to an adverse judgment, bars plain- tiff subsequently claiming title never passed. — Turner v. Grimes, 76 Neb. 416, 106 N. W. 465. 3 Roberts v. Ely, 9 N. Y. St. Rep. 7 796; affirmed, 113 N. Y. 128, 20 N. E. 606; Fowler v. Bowery Sav. Bank, 113 N. Y, 450, 10 Am. St. Rep. 479, 4 L. R. A. 145, 21 N. E. 172. One entitled to savings deposit wrongfully paid to another has an election (1) to sue the person wrongfully receiving the deposit for money had and received, or (2) to sue the bank for the de- posit; and having elected to pur- sue the first remedy he loses all right of action against the bank, even though the judgment recov- ered is uncollectable. — Fowler v. Bowery Sav. Bank, 113 N. Y. 450. 10 Am. St. Rep. 479, 4 L. R. A. 145. 21 N. E. 172. See Jones v. First Nat. Bank, 3 Neb. Unof. 79, 90 N. W. 912; Crook v. First Nat. Bank, 83 Wis. 42, 35 Am. St. Rep. 17, 52 N. W. 1131. Compare: Wood v. Claiborne, 82 Ark. 520, 118 Am. St. Rep. 89, 11 L. R. A. (N. S.) 916, 102 S. W. 219. •1 Ensworth v. Barton, 60 Mo. 511; Dunn v. White, 63 Mo. 181; Carson v. Cummings, 69 Mo. 325; Clements v. Yeates, 69 Mo. 623; Bray v. Seligman, 75 Mo. 31; Sum- ner V. Rogers, 90 Mo. 324; Wilson V. St. Louis, I. M. & S. R. Co. (Mo.). 2 S. W. 266. See, ante, § 530. 5 Fuller-Warren Co. v. Harter, 110 Wis. 80, 84 Am. St. Rep. 807, 53 L. R. A. 603. 85 N. W. 698. See, ante, § 536, footnotes 5-7. 30 Ch. IV,] ABANDONMENT OF ELECTION. §§ 545, 546 cause ; and a defendant making an election between incon- sistent remedies open to him as a defense to the action, having had his day in court, can not maintain a suit in equity to set aside the judgment recovered against him.'' § 545. Abandonment or withdrawal of election. An election between inconsistent remedies having been once made, with a full knowledge of the facts, it can not be withdrawn without the consent of the opposite part}' thereto, even though it has not been acted on, and tlie positions of the parties have in no wise changed.^ From this it follows that a party having once elected between two inconsistent remedies available to him under the same state of facts, and prosecuted the action to judg- ment under that remedy, he can not thereafter abandon the remedy and proceed under another and inconsistent remedy.^ § 546. Mistake in remedy pursued. The law is well settled to the effect that w^here a party, having but one remedy ojDen to him, in a mistaken belief that he has another remedy, and in attempting to enforce such otlier supposed remedy pursues it to an adverse decision and judgment, this will not estop him from thereafter suing upon the proper cause of action, pursuing the proper remedy — the only remedy open to him in the first in- stance.^ The reason for this rule is that, by pursuing a 6 Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598. Ann. Gas. Trust Co., 21 Idaho 598, Ann. Cas, 1913E, 120, 123 Pac. 481. 1913E, 120, 123 Pac. 481. See, also, cases, ante, § 544. foot- 1 Capitol City Bank v. Hilson, C4 notes 4 and 6. Fla. 206, Ann. Cas. 1914B, 1211, 60 i Amons many other cases, see: So. 189; Kinney v. Kiernan, 49 CAL. — Agar v. Winslow. 123 Cal. N. Y. 164, reversing 2 Lans. 492; 587. 69 Am. St. Rep. C4. 56 Pac. Mendenhall V. Mendenhall, 53N.C. 422. FLA.— Capital City Bank & (8 Jones L.) 287; Jones v. Gerock. Trust Co. v. Hilson, 64 Fla. 206, 59 N. C. (6 Jones Eq.) 190; Syme Ann. Cas. 1914B, 1211. 60 So. 189. V. Badger, 92 N. C. 706; Yorkly v. IDAHO— Elliott v. Collins. 6 Idaho Stinson, 97 N. C. 236, 240, 1 S. E. 266, 55 Pac. 301. ILL.— Fisher v. 452. Brown, 111 111. App. 486. IND.— - Bernhard v. Idaho Bank & Bunch v. Grove, 111 Ind. 351, 12 731 § 546 CODE PLEADING AND PUACTICE. [Pt. II, mistaken remedy, he does not thereby waive his proper remedy ;- because the doctrine of the election of remedies, as we have already seen, applies in those cases only in which there are coexistent inconsistent remedies.^ Thus, an unsuccessful pursuit of an inapplicable remedy, either because (1) the facts turn out to be different from what the party supposed them to be, or (2) because the law applicable to the state of facts is different from what the party believed it to be, and the cause proceeds to an adverse judgment, this will not preclude the party from thereafter pursuing the proper remedy.'* An instance in point is where a party having a right of action in assump- sit on a contract of sale for the price of goods deliverer!, he is not, by mistakenly bringing an action in trover to recover the possession of the goods, precluded from there- after maintaining his proper action in assumpsit.^ An action for a breach of warranty being the only remedy open to a party, a mistaken attempt to enforce a recovery on the theory that the contract has been rescinded, does N. E. 54. IOWA— Zimmerman v. St. Rep. 867, 53 L. R. A. 603, 85 Robinson, 128 Iowa 72, 102 N. W. N. W. 698; Rowell v. Smith, 123 814. ME.— Clark v. Heath, 101 Me. Wis. 510, 3 Ann. Cas. 773, 102 530, 8 L. R. A. (N. S.) 144, 64 Atl. N. W. 1. FED.— Elgin National 913. MASS.— Peters v. Ballister, Watch Co. v. Meyer, 29 Fed. 225. 20 Mass. (3 Pick.) 495. MISS.— 2 Capital City Bank & Trust Co. Conn V. Bernheimer, 67 Miss. 498, v. Hilson, 64 Fla. 206, Ann. Cas. 7 So. 345; Tucker v. Wilson, 68 1914B, 1211, 60 So. 189; Rowell v. Miss. 693, 9 So. 898. NEB.— State Smith, 123 Wis. 510, 3 Ann. Cas. V. Bank of Commerce, 61 Neb. 22, 773, 102 N. W. 1. 84 N. W. 406; Omaha, City of, v. One proper remedy only existing Redick, 61 Neb. 163, 85 N. W. 48. by which to deal with the subject- ORE. — Powell V. Dayton, S. «& G. matter, use of an inappropriate R. Co., 16 Ore. 33, 8 Am, St. Rep. remedy by mistake, does not con- 251, 16 Pac. 863; Morris v. Sher- stitute a waiver of the proper rem- idan. City of, 86 Ore. 224, 167 Pac. edy.— Rowell v. Smith, 123 Wis. 593; Oregon Mill & Grain Co. v. 510, 3 Ann. Cas. 773, 102 N. W. 1. Hyde. 87 Ore. 517, 169 Pac. 791. 3 See, ante, § 536, footnotes 5-7. UTAH— Detroit Heating & Light- 4 Rowell v. Smith, 123 Wis. 510, ing Co. V. Stevens, 20 Utah 241, 3 Ann. Cas. 773, 102 N. W. 1. 58 Pac. 193. WIS.— Fuller-Warren 5 Clark v. Heath, 101 Me. 530, 8 Co. V. Harter, 110 Wis. 80, 84 Am. L. R. A. (N. S.) 144, 64 Atl. 913. 732 I eh. IV.] APPLICATION OF DOCTRINE OF ELECTION. § 547 not preclude him from thereafter bringing and prose- cuting an action for breach of warranty.*' Likewise, rely- ing for his defense to an action upon rescission of a contract pleaded, and which is an issue raised by the pleadings, but upon which a recovery is impossible, a party is not thereby precluded from thereafter claiming damages for plaintiff's breach of contract— this being tlie sole remedy that was originally open to him." An eject- ment suit mistakenly instituted by one to whom tlie remedy is not available, will not prevent him from there- after maintaining his proper remedy for unlawful deten- tion.s Where an action for compensation for services is defended on the theory that plaintiff has mistaken his remedy, and the defendant thereupon asks for, and is given, a nonsuit without the plaintiff's objecting, the plaintiff is not necessarily concluded, on the ground of having elected his remedy, from recovering in a new form of action, the money he claims to be due." Many other specific illustrations of the rule will be found in the various cases cited in the first footnote to this section. •§ 547. Application of doctpjne of election — In gen- eral. The rules governing the doctrine of election of remedies, as set out in the preceding sections of this chapter, have been illustrated, to a limited extent, in the course of the statement of the rules and the reasons tliero- for. It may be assistful and advantageous to the busy practitioner, without attempting to be exhaustive either of the causes subject to election of remedies or the deci- sions under the instances given, to set out briefly some specific illustrations of the doctrine of election as applied to some of the main topics likely to arise in daily practice. 6 Zimmerman v. Robinson, 12S s Agar v. Winslow, 123 Cal. 5S7, Iowa 72. 102 N. W. 814. 69 Am, St. Rep. 64, 56 Pac. 422. 7 Detroit Heating & Lighting Co. n Morris v. Sheridan, City of, 86 V. Stevens, 20 Utah 241, 58 Pac. Ore. 224, 167 Pac. 593. 193. 733 5 54:8 code pleading and puactice. [pt. 11, '§548. Acceptance of assets and assumption of DEBTS of partnership. In the case of an agreement by a person to accept the interest of a retiring member of a partnership and pay the partnership debts, the relation of principal and surety is created between the continuing and the retiring partner ;^ but this relation is not created as to the creditors of the partnership who do not assent to the arrangement;- those American cases holding that notice to the creditors of such an arrangement raises the relation of principal and surety as to the creditors of the firm also^ are founded upon a misconception of the Eng- lish case"* upon which they profess to found their deci- sions, because in the English case the creditor consented to the arrangement and thereby became a party to it.^ Where the continuing partner fails to carry out his agree- ment as to the payment of the partnership debts, the retiring partner will have one of two remedies, to-wit: (1) An action at law or (2) a suit in equity, according to the status of matters at the time of seeking relief; and a mistake in his remedy mil bring defeat to his cause. The usual, and it may be the only, remedy of the retiring partner is : 1 Dean & Co. v. Collins, 15 N. D. 71 Tex. 712, 12 S. W. 51; Barnes 535, 125 Am, St. Rep. 610, 9 L. R. A. v. Boyers, 34 W. Va. 303, 12 S. E. (N. S.) 49, 108 N. W. 242. See '^08; First Nat. Bank v. Fisk, 100 Moore w. Topliff, 107 111. 241; Wis. 446, 76 N. W. 608; Shepherd Wendland v. Shore, 37 Minn. 162. ^- M^^' ^^ U. S. 505, 29 L. Ed. ■^3 N W "00 ^^^' ^ ^"P" ^*" -^^P' ■^^^' ^®"®'' ^■ " • • ' • Ashford, 133 U. S. 610, 33 L. Ed. 2 Dean & Co. v. Collins, 15 N. D. qq^^ ^q ^^^ ^^^ j^^p ^g^ 535, 125 Am. St. Rep. 610, 9 L. R. A. 3 Smith v. Sheldon, 35 Mich. 42, (N. S.) 49, 108 N. W. 242. See 24 Am, Rep. 529; Colgrove v. Tall- Hall V. Jones, 56 Ala. 493; ConweU man, 67 N. T. 95, 23 Am. Rep. 90. V. McGowan, 81 111. 285; McAreavy -t Oakeley v. Pasheller, 4 Clark V. Magirl, 123 Iowa 605, 99 N. W. & F. 207, 7 Eng. Repr. 80. 193; Rawson v. Taylor, 30 Ohio St. 5 Dean & Co. v. Collins, 15 N. D. 289, 27 Am. Rep. 464; Whittier v. 535, 125 Am. St. Rep. 610, 9 L. R. A. Gould, 8 Watts (Pa.) 485; Shap- (N. S.) 49, 108 N. W. 242; Shap- leigh Hardware Co., A. F., v. leigh Hardware Co., A. F., v. Wells, 90 Tex. 110, 59 Am. St. Rep. Wells, 90 Tex. 110, 59 Am. St. Rep. 7S3, 37 S. W. 411; White v. Boone, 783, 37 A. W. 411. 734 eh. IV.] ELECTION ACCEPTANCE OF ASSETS. § O-iS 1. An action at law to recover damages against the continuing partner for breach of contract f and the meas- ure of damages on such an action is the sum of the debts agreed to be paid/ or so much thereof as remains unpaid,*^ or the amount the retiring partner has been compelled to, or has, paid,** together with interest thereon at the legal rate, in the absence of any stipulation in the agree- ment as to interest.^" A court of equity will have no juris- diction in such a case so long as there is an ade(|uate remedy at law,^^ unless a creditor releasing the retiring partner and agreeing to look to the continuing partner brings suit against such retiring partner in violation of the agreement to which he was a party, in which case the retiring partner may maintain — 2. A suit in equity to enjoin a judgment supposed to have been rendered against him by default, in which the continuing partner was not served. ^^ And in the absence of assent by a creditor to the arrangement, on suit brought against the retiring partner he may apply to a court of equity to compel the continuing partner to re- lieve him of responsibility for and liability on the claim upon which suit is brought. ^^ 6 Clark V. Clark, 9 Port. (Ala.) lo Lathrop v. Atwood, 21 Conn. 9; Brewer v. Worthington, 94 117; Myers v. Smith, 15 Iowa 181. Mass. (10 Allen) 329. See ^^^^ 9 l. r. a. (N. S.) 107. ' Parnsworth v. Boardman, 131 11 Clark V. Clark, 4 Port. (Ala.) 9; Kellogg v. Moore, 97 111. 282; Clarke's Appeal, 107 Pa. St. 436; Stein V. Benedict, 83 Wis. 603, 53 N. W. 891. Mass. 115; Ham v. Hill, 29 Mo 275; Wilson v. Stilwell, 9 Ohio St 467, 75 Am. Dec. 477. 8 Lathrop v. Atwood, 21 Conn 117; Mullendore v. Scott, 45 Ind 113 12 Rice V. Tobias, 89 Ala. 214, 7 oHinckle v. Reid, 43 Ind. 390; So. 765. Vanness v. Dubois, 64 Ind. 338; i3 West v. Chasten, 12 Fla. 315, Myers v. Smith, 15 Iowa 181; Moore v. Topliff, 107 111. 241; Sco- Wright V. Scwall, 9 Rob. (La.) ville v. Kinsley, 79 Mass. (13 128; Bunton v. Dunn, 54 Me. 152; Gray) 5; Robb v. Stevens, 1 Clarke Nichols V. Prince, 90 Mass. (8 Ch. (N. Y.) 191; Still v. Holland, Allen) 404; Barber v. Gillison, 18 1 Ohio Dec. Repr. 584; Biddle v. Nev. 89, 1 Pac. 452. Moore, 3 Pa. St. 161. 735 § 549 CODE PLEADING AND PRACTICE. [Pt. II, •^ 549. Approbating and reprobating. We have already seen^ that a party can not be permitted, at one and the same time, to approbate and reprobate, to affirm and rescind a contract. That is to say, a person can not proceed as upon a disaffirmance of a contract and at the same time retain, and attempt to collect, the purchase price of the property involved in the contract;- claim proceeds in hands of agent making sale of property and seek to set aside the sale;^ insist that contract is in full force and maintain action to rescind it ;^ seek to set aside assignment for benefit of creditors by his debtor and participate in the distribution of the assigned estate;^ accept complete delivery of goods and maintain action to offset damages for not delivering as per contract against contract price f maintain action for damages for breach of contract and one to terminate contract because of breach of conditions ;" maintain action for conversion by le\^' of an attachment and attack the levy as invalid f majority stockholder can not have personal judgment for stock the beneficial ownership of which he retains ;'* 1 See, ante, § 542, footnotes 14-16. 3 Robb v. Vos, 155 U. S. 41, 39 -: Smith v. Gilmore, 7 App. D. C. L. Ed. 62, 15 Sup. Ct. Rep. 4. 201; Hogan v. Shorb, 24 Wend. 4 Garrett v. Farwell Co., John (N. Y.) 460; Whitney v. Allaire, 4 ^ ^^^ ^jj ^^ Den. (N. Y.) 554; affirmed, 1 N. Y. 305, 4 How. Pr. 447; Conrow v. ^ Mills v. Parkhurst, 9 N. Y. Uttle, 115 N. Y. 387, 5 L. R. A. Supp. 109. But this doctrine was 693, 22 N. E. 346; Wheaton v. modified on appeal. See, ante. Baker, 14 Barb. (N. Y.) 594, 601; §542, footnote 13. Ramsey v. Smith, 56 Wash. 604, ^ Brady v. C a s s i d y, 9 Misc. 106 Pac. 160; Winton Motor Car ^^^ y.) 114, 29 N. Y. Supp. 45. Co. V. Broadway Auto Co 65 ; ^^^^^ ; j^^/^^'^^^ & Hudson Wash. 650, 37 L. R. A. (N. S.) .1, ^^^^^ ^8 App. Div. (N. Y.) 118 Pac. 817; Stewart & Holmes 333 ^^ ^ ^ 3^^ Drug Co. V. Reed, 74 Wash. 401, 133 Pac. 577; Thompson Co. v. « Marx v. Crancimino, 59 App. Murphine. 79 Wash. 672, 140 Pac. Div. (N. Y.) 571. 69 N. Y. Supp. 1073; Rose v. Rundall, 86 Wash. ^72. 422, 150 Pac. 614. '-^ Farmers' Loan & Trust Co. v. See, also, footnote 10, this sec- Toledo & S. H. R. Co., 54 Fed. 766, tion. 4 C. C. A. 569, 9 U. S. App. 469. 736 ch. IV.] ELECTION — ATTACHMENT, ETC. § 550 seller can not maintain action of replevin against an assignee of the purchaser, for a portion of the property, and one against the purchaser, on contract, for the bal- ance of the goods ;^° an action for conversion and one in contract for the same property ;^^ disaffirm discounts of drafts and sue for the proceeds of such drafts ;^- prove claim in bankruptcy and maintain an action for the return of the goods in the baii!:rupt's possession ;^^ pur- chaser can not claim rescission of contract of sale of goods because of breach by seller and claim damages arising out of such breach ;^^ vendee can not maintain an action for reformation of contract and insist on its rescission on the ground of fraud ;^^ vendor can not exer- cise option under conditional contract to enforce pay- ment of note given for purchase price and claim a right to retake the property upon default, even though he is unable to collect a judgment on the note, because of the l^urchaser's insolvency,^^ — and the like. § 550. Attachment and replevin. The general rule of law is that an attachment of property for the purchase price thereof has the effect to affirm the con- tract of sale, even though there was fraud on the part of the purchaser in procuring credit, where the attach- ment was procured with knowledge of such fraud, ^ and 10 Schoeneman v. Chamberlain, 16 Crompton v. Beach, 62 Conn. 55 App, Div. 351, 355, 67 N. Y. 25, 36 Am. St. Rep. 323, 18 L. R. A. Supp. 284. 187, 25 Atl. 446. See, also, authorities in footnote iSickman v. Abernathey, 14 2, this section. Colo. 174, 23 Pac. 447; BuIUley v. 11 Hess V. Smith, 16 Misc. (N. Y.) Morgan, 46 Conn. 393; Gray v. St. 55, 37 N. Y. Supp. 635. John, 35 HI. 222; Butler v. Hildreth, 12 Davis V. Buttes Lumber Co., 46 Mass. (5 Mete.) 49; Lloyd v, 132 N. C. 239, 43 S. E. 650. Brewster, 4 Paige Ch. (N. Y.) 537, 13 Hildebrandt, In re, 120 Fed. 27 Am. Dec. 88; Conrow v. Little, 996. 115 N. Y. 387, 5 L. R. A. 693, 22 14 Main v. Procknow, 131 Wis. N. E. 346; Benedict v. National 279. 282, 111 N. W. 508. Bank of Commerce, 4 Daly (N. Y.) 15 Pfeiffer v. Marshall, 136 Wis. 171; Wright v. Price. 4 Hun (N.Y.) 51, 62, IIG N. W. 871. 351, 6 Thomp. & C. 651. I Code PI. and Pr.— 47 737 § 551 Code pleading and practice. [Pt. II, this will constitute such an election of remedies as will prevent a rescission of the contract and replevin of the property; but a somewhat conflicting doctrine has been announced in a Massachusetts case,^ presenting a peculiar illustration of the difficulties in applying the doctrine of election of remedies, it being held in the Massachusetts case that an attachment in an action in trover did not estop the party to subsequently replevin the property; but it must be remembered that an action in trover is in the nature of an action ex delicto and not of an action ex contractu. In those cases in which the attachment is based on the fraud of the purchaser in procuring credit, a different rule seems to prevail, in that case the attach- ment not necessarily constituting a ratification of the contract;^ and yet it has been held that an attachment for the purchase price mil not bar a subsequent suit upon a purchase-money note for the goods,'* the remedies being concurrent and not inconsistent.^ Rescission of the con- tract by the replevin of the goods will prevent an attach- ment on the ground that the purchaser has assigned the property with the intent to defraud his creditors.*' § 551. CoMMON-LAW and STATUTORY REMEDIES. TllC procedural codes abolish the common-law forms of actions, as we have already seen,^ but do not affect the classification of actions and the principles controlling in the different classes of common-law actions ;- they remain the same, and the law to be administered in each class depends as much as formerly upon the nature and form 2 Miller v. Hyde, 161 Mass. 472, Co., 127 N. Y. 34, 13 L, R. A. 91, 27 42 Am. St. Rep. 424, 25 L. R. A. N. E. 400. 42, 19 N. E. 760. 5 See, ante, §§ 539, 540. I do not find that this case has 6 Thompson v. Fuller, 5 S i 1 v. ever been cited or followed on this Sup. Ct. Rep. (N. Y.) 41, 8 N. Y. point. Supp. 62. 3 Dean v. Yeates, 22 Ohio St. 388. 5 See, ante, § 523. 4 Grossman v. Universal Rubber 2 See, ante, §§ 524 et seq. 738 I ch. IV.] COMMON-LAW AND STATUTORY REMEDIES. § 551 of the action.^ Where the common-law remedies and the remedies provided by statute are concurrent, a party will have an election of remedies ;^ but where the statute supplants the common law, there can be no election. We shall presently see that the personal representative suing for damages for the death of his decedent, caused by negligence, must elect between (1) the common-law right of action for mental and physical suffering of his intestate, and (2) the statutory cause of action for his death. ^ A common-law remedy is not taken away by a statutory remedy to enforce the same right or to redress 3 Omaha & Grant Smelting & Refining Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep. 185, 5 L. R. A. 236, 21 Pac. 925. 4 Southern R. Co. v. Moore, 133 Ga. 806, 26 L. R. A. (N. S.) 851, 67 S. E. 85 (penalty for failure to fur- nish cars by carrier not exclusive, see footnote 9, this section); Thomas v. Marysville Gas Co., 108 Ky. 224, 53 L. R. A. 147, 55 S. W. 153 (administrator of person killed by negligence must elect. See, post, §§ 561, 562. 568) ; Lee v. Hill- man, 74 Wash. 408, Ann. Cas. 1915A, 759, L. R. A. 1918B, 581, 133 Pac. 583 (statutory remedy for usury not exclusive); Billmyre Lumber Co. v. Merchants' Coal Co., 66 W. Va. 696, 26 L. R. A. (N. S.) 1101, 66 S. E. 1073 (statute for winding up corporation not exclu- sive) ; Atkinson v. Virginia Oil & Gas Co., 72 W. Va. 707, 48 L. R. A. (N. S.) 167, 79 S. E. 647 (statute requiring plugging abandoned oil and gas wells not exclusive) ; Nar- ramore v. Cleaveland, C. C. & St. L. R. Co., 37 C. C. A. 499, 48 L. R. A. 68, 96 Fed. 298 (penalty for failure to block switches not exclusive) ; Walker v. Globe Newspaper Co., 72 C. C. A. 77, 2 L. R. A. (N. S.) 913, 140 Fed. 305 (statutory rem- edy for infringement of patent does not exclude common-law remedy). Statutory remedy exclusive in following cases. — Walker v. Chans- lor, 153 Cal. 118, 126 Am. St. Rep. 61, 17 L. R. A. (N. S.) 455. 94 Pac. 606 (remedy for one forcibly ex- pelled from land); Winfree v. Northern Pac. R. Co., 97 C. C. A. 392, 44 L. R. A. (N. S.) 841, 173 Fed. 65 (action by administrator for benefit of parents of minor killed by another's negligence). As to alternative remedies open to woiknien, or to their depen- dents, injured in the course of their employment, see note L. R.A. 1916A, 72. As to exclusiveness of Work- men's Compensation Act, see note L. R. A. 19 16 A, 22:!. Right to recover back usurious interest paid, in the absence of a statutory provision. See note L. R. A. 191813, 585. — Effect upon of statute provid- ing another remedy. See note Ann. Cas. 1915A, 762. 5 See, post. §§ 561, 562, 568. 739 § 552 CODE PLEADING AND PRACTICE. [Pt. II, the same grievance or wrong, unless the statute (1) ex- pressly denies the common-law remedy, or (2) is clearly so repugnant to it as to imply that it is negatived or superseded by the statute.^ Thus, a statutory remedy for a constitutional right to damages for property taken under the power of eminent domain, is not exclusive where it gives to the owner no power to enforce the pay- ment of the damages awarded for the property taken and for injuries to property not taken, as the same are assessed to him/ And a statute providing for the fixing of the time within which cars must be furnished by a car- rier after a demand therefor, and a penalty per diem for every day the carrier fails to furnish them after the lapse of such time, does not take away the common-law remedy for damages on the ground that the carrier failed to perform a public duty;^ and a rate-regulating statute, which furnishes no ci\dl remedy to the shipper, does not take away the latter 's common-law right of action for damages on account of discrimination.^ ^ 552. COXTINUING NUISANCE AND TRESPASS. lu the case of a continuing nuisance in the nature of a trespass, in which the injur}- to the land or other property is of a permanent character, going to the entire value of such property, there are cases which hold that, in the absence of a statute providing otherwise, there can be but one action to recover for such damages past, present, and 6 Chicago & Indianapolis Coal R. 8 Southern R. Co. v. Moore, 133 Co. V. Hall, 135 Ind. 91, 23 L. R. A. Ga. 806, 26 L. R. A. (N. S.) 851, 07 231, 34 N. E. 704; Winfree v. S. E. 85. Northern Pac. Co., 97 C. C. A. 392, See full collection of authorities 44 L. R. A. (N. S.) 841, 173 Fed. note 26 L. R. A. (N. S.) 851. C5. 9 S u 1 1 i V a n V. Minneapolis & 7 Hickman v. Kansas City, 120 Rainy River R. Co., 121 Minn. 488, Mo. 110, 41 Am. St. Rep. 684, 23 45 L. R. A. (N. S.) 612, 142 N. W. L. R. A. 658, 25 S. W. 225. See 3. See Hickman v. Kansas City, Sullivan v. Minneapolis & Rainy 120 Mo. 110. 41 Am. St. Rep. 684, River R. Co., 121 Minn. 488, 45 23 L. R. A. 658, 25 S. W. 225. L. R. A. (N. S.) 612, 142 N. W. 3. See, also, note 45 L. R. A. (N. S.) See, also, note 23 L. R. A. 658. 612. 740 eh. IV.] CONTINUIXG NUISANCE — CONTRACT. § 553 future;^ but there is another line of cases which holds that successive actions may be brought for a nuisance in the nature of a continuing, or a recurring, trespass.- The right is recognized by some cases to elect (1) to sue in one action for all damages past, present, and to accrue in the future, or (2) to sue for temporary dam- ages for injuries actually sustained, and to bring succes- sive suits for successive instances or resultant damage. The cases are numerous and not altogether satisfactory, some turning upon a rule conceived to be applicable to the facts of the particular case, others controlled by statutory provisions. To discuss them in detail, or even to refer to them by title and book, would require more space than can be devoted to the subject in this treatise, and we must be content with a merely assistful reference.^ § 553. Contract — In general. In the case of con- tracts, as in the case of other relations, a party can not be permitted to assume inconsistent positions ;^ and 1 Turner v. Overton, 86 Ark. 406, 2 Bowers v. Mississippi River 20 L. R. A. (N. S.) 894, 111 S. W. Boom Co., 78 Minn. 398, 79 .Am. St. 270; Jacksonville, T. & K. W. R. Rep. 395, 81 N. W. 208, citing Har- Co. v. Lockwood, 33 Fla. 573, 594, "ngton v. St. Paul & S. C. R. Co., 15 So. 327; Irvine v. Oelwein, City ^"^ ^^"°- ^15; Adams v. Hastings & D. R. Co., 18 Minn. 260; Brakken of, 170 Iowa 653, L. R. A. 1916E, 990, 150 N. W. 674; Priebe v. Ames, V. Minneapolis & St. L.. R. Co., 29 Minn. 41, 11 N. W. 124; Byrne 104 Minn. 419, 17 L. R. A. (N. S.) ^ Minneapolis & St. L. R. Co., 38 206, 116 N. W. 829; Van Hoosier ^inn. 212, 8 Am. St. Rep. 668, 33 V. Hannibal & St. J. R. Co., 70 Mo. n. W. 339; Adams v. Chicago, B. & 145; Hayes v. St. Louis & S. F. R. N. R. Co., 39 Minn. 286, 12 Am. St. Co., 177 Mo. 201, 162 S. W. 266; Rep. 644, 1 L. R. A. 493, 39 N. W. Bird v. Hannibal & St. J. R. Co., 629; Lamm v. Chicago, St. P. M. & 30 Mo. App. 365; Wallace v. Kan- O. R. Co., 47 Minn. 71, 10 L. R. A. sas City & S. R. Co., 47 Mo. App. 268, 47 N. W. 455. 491; Beatrice Gas Co. v. Thomas, 3 Cases fully collected and well 41 Neb. 662, 43 Am. St. Rep. 711, analyzed in notes 17 L. R. A. (N. S.) 59 N. W. 925; Perry v. Chicago, 206; 20 L. R. A. (N. S.) 886, 894; R. I. & G. R. Co. (Tex. Civ. App.), L. R. A. 1916E, 997-1074. 162 S. W. 1185; Gulf, C. & S. F. R. 1 Cole v. Hines, 81 Md. 476, 32 Co. v. Moseley, 88 C. C. A. 236, L. R. A. 455, 32 Atl. 196. See, ante, 20 L. R. A (N. S.) 885, 161 Fed. 72. § 542, footnotes 14-16, § 549. 741 § 553 CODE PLEADING AND PRACTICE. [Pt. II, where there are coexistent antagonistic remedies he must select the remedy which he will pursue. ^ Thus, a party can not be permitted to treat a contract as rescinded, sue for the amount paid to the other party, and at the same time rely upon the contract as existing;^ a mortgagee may not treat a mortgage as due because of default in payment of instalhnent or interest, and when the mort- gagor has raised the money to make payment, enforce the provision in the mortgage for the pajTnent of a bonus in case the amount of the mortgage is accepted after it becomes due.^ But where property is conveyed in con- sideration of support, an action to enforce benefits under the contract does not preclude, on the theory of an elec- tion of remedies, an action to rescind the contract for future defaults.^ Where a contract has been partly per- formed and then rightfully terminated, the proper rem- edy is an action for damages, and not an action upon a quantum meruit;" although it has been held that an action upon an express contract, which is dismissed for failure to prove a compliance with the terms of such contract, does not preclude a subsequent action upon a quantum meruit." In the case of a contract with a carrier for the transportation of property, on breach of the contract, the party may elect (1) to sue for damages for failure of the carrier to perform a public duty, or (2) may waive the tort and sue for breach of contract.^ An election of the remedy to be pursued must be such as to bind the party, under the rules above laid down.'* Thus, bringing 2 See, ante, §§ 538, 541. 3 Timmerman v. Stanley, 123 Ga. 850, 1 L. R. A. (N. S.) 379, 51 S. E. 760. 4 Kilpatrick v. Germania Life Ins. Co., 183 N. Y. 163, 111 Am. St. Rep. 722, 2 L. R. A. (N. S.) 574, 75 N. E. 1124, reversing 95 App. Div. 287, 88 N. Y. Supp. 628. sGaU V. Gall, 126 Wis. 390, 5 L. R. A. (N. S.) 603, 105 N. W. 953. 6 Hildebrand v. American Fine Art Co., 109 Wis. 171, 53 L. R. A. 826, 85 N. W. 268. T Water, Light & Gas Co. v. Huchinson, City of, 90 C. C. A. 547, 19 L. R. A. (N. S.) 219, 160 Fed. 41. s Sevier v. Mitchell, 7 Ore. 483, 142 Pac. 780. ■•• See, ante, §§ 542, 544-546. 742 1 I,1IP ch. IV.J ■ CONDITIONAL SALE — ELECTION. § 554 a replevin suit and then discontinuing it before judg- ment, without obtaining any benefit, has been said not to estop plaintiff from claiming the purchase price out of the estate of the purchaser ;i'^ and a suit to set aside a sale and to recover back the property, abandoned and dismissed before trial, lea\dng the grantee in undisturbed possession and enjoyment, will not estop plaintiff to en- force a mortgage given as consideration for the convey- ance.^^ A judgment in favor of a plaintiff on a contract being reversed on the ground that the contract could not be enforced in its present shape, on the going down of the mandate, the plaintiff may maintain an action for tlie reformation of the contract.^^ § 554. Conditional sale. On a contract of conditional sale, the title to the property remaining in the seller until the purchase price is fully paid, upon default in payment, the seller may (1) retake possession of the property, or (2) affirm the contract and enforce payment of the purchase price, or any portion thereof remaining unpaid ; but he can not both retake possession of the property and enforce payment, as he is not per- mitted to assume antagonistic positions.^ Bringing an action to enforce the purchase price is an election to ratify the contract, which estops the seller to reclaim possession of the property ;2 and so, also, is an effort on 10 Bolton Mines Co. v. Stokes, Mo. App. .307; Albright v. Mere- 82 Md. 50, 31 L. R. A. 789, 3 Atl. dith, 58 Ohio St. 194, 202, 50 N. E. 491. 719; Francis v. Bohurt, 76 Ore. 1. iiTuttle V. Burgett, 53 Ohio St. L. R. A. 1916A, 922, 143 Pac. 920, 498, 53 Am. St. Rep. 649, 30 L. R. A. 147 Pac. 755; Seanor v. McLaugh- 214, 42 N. E. 427. lin, 165 Pa. St. 150, 32 L. R. A. 12 Capital City Bank v. Hilson, 467, 30 Atl. 717. 64 Fla. 206, Ann Cas. 1914B, 1211, See, also, ante, §542, footnotes 60 So. 189. 14-16; § 549. 1 Cole V. Hines, 81 Md. 476, 32 As to conditional sales and the L. R. A. 455, 32 Atl. 196; Cable rights and liabilities of parties Co. V. Wasegizig, 130 Mich. 387, thereunder, see notes 32 L. R. A. 391, 90 N. W. 24; Laclede Power 455-472; L. R. A. 191 6A, 925. Co. V. Ennis Stationary Co., 79 2 Butler v. Dodson, 78 Ark. 569, 743 § 555 CODE PLEADING AND PRACTICE. [Pt. II, the part of tlie seller to establish a lien on a building into the construction of which part of lumber sold on a con ditional sale entered.^ Where the seller receives notes for the purchase-price, and the contract provides that a suit on any of the notes shall not waive the seller 's right to retake the property, after retaking the property the seller can not maintain a suit on the notes ;^ but where the contract so provides the conditional seller may, on default in payments of the purchase-price, seize the prop- erty and sell it, applying the proceeds on the purchase- price, and then sue for any balance left unpaid.^ § 555. Contract and fraud. Fraus et jus nun- quam cohabitant — fraud and justice never dwell to- gether,^ and it is a general principle of law that fraud vitiates everything into wiiich it enters. Hence an action brought, without knowledge of fraud and deceit entering into a contract on the part of a purchaser, to enforce a contract procured by fraud, is no bar to a subsequent action for the alleged fraud, the remedies being concur- rent and consistent, both proceeding upon an affirmance of the contract.^ Thus, the securing of an uncollectible judgment in an action on the contract to recover the purchase-price of the property procured by fraud and 94 S. W. 703; Purdy v. Dunn Ma- Falls Adjustment Co. v. Aikens, chinery Co., 142 Ga. 308, 82 S. E. 32 S. D. 154, 142 N. W. 651. 888; North Robinson Dean Co. See, also, authorities in note V. Strong, 25 Idaho 721, 139 Pac. L. R. A. 1916A, 925. 847; Smith v. Barber, 153 Ind. 322, 3 Hickman v. Richburg, 122 Ala. 53 N. E. 1014; Frisch v. Wells, 200 638, 26 So. 136. Mass. 429, 23 L. R. A. (N. S.) 144, 4 Perkins v. Grabben, 116 Mich. 86 N. E. 775; Alden v. Dyer & 172, 72 Am. St. Rep. 512, 39 Bro., W. J., 92 Minn. 134, 99 N. W. L, R. A. 815, 74 N. W. 469; Seanor 784; Chase v. Kelly, 125 Minn. v. McLaughlin, 165 Pa. St. 150, 32 317, L. R. A. 1916A, 912, 14 N. W. L. R. A. 467, 30 Atl. 717. 1113; Mathews Piano Co. v. » Von den Bosch v. Bouwman, Markle, 86 Neb. 123, 124 N. W. 138 Mich. 624, 110 Am. St Rep. 1129; Orcutt v. Rickenbrodt, 42 336, 101 N. W. 832. App. Div. (N. Y.) 238, 59 N. Y. i Wingate's Maxims 680. Supp. 1008; Francis v. Bahast, 76 See, also, discussion, post, § 556. Ore. 1, L. R. A. 1916A, 922; Sioux 2 Union Cent. Life Ins. Co. v. 744 ell. IV.] CONTRACT AND FRAUD — ELECTION. § 555 deceit, is no bar to an action for the fraud f the recovery of a judgment for the full amount due on a note and mortgage, and the issuance of an execution which is returned nulla bona, does not prevent an action for fraud against a third party who aided in procuring the fraudu- lent loan;^ and where a person is induced to indorse a promissory note for another by false and fraudulent representations respecting the latter 's specific articles of property free and clear of all encumbrance or lien, the retention of some security to reimburse him for the in- dorsed note he has been compelled to pay, does not pre- clude the maintenance of an action for the fraud.^ Even the filing of a complaint asking the rescission of a con- tract for fraud is not a conclusive election of remedies f nor does the proving of a claim for the purchase-price against a bankrupt's estate, and accepting dividends thereon in composition of it, bar an action for fraud and deceit in procuring by false representations the property on which the claim is based."^ Likewise an attachment and bill in equity,^ — but not so a replevin of the prop- erty,° — on the ground of fraud in procuring credit on a Scheidler, 130 Ind. 214, 15 L. R, A. v. Owings, 140 N. C. 503, 8 L. R. A. 89, 29 N. E. 1071; B o w e n v. (N. S.) 582, 53 S. E. 345. Mandeville, 95 N. Y. 237, affirming See, also, authority next foot- 29 Hun 42; Equitable Cooperative ^°*^®- Foundry Co. v. Hersee, 103 N. Y. 25, 9 N. E. 487, affirming 33 Hun 169; Hays v. Midas, 104 N. Y. 4 Union Cent. Life Ins. Co. v. Scheidler. 130 Ind. 214, 15 L. R. A. 89, 29 N. E. 1071. See authority in preceding foot- 602, 11 N. E. 141, affirming 39 ^^^g Hun 460; Wanzer v. De Baun, 1 5 Chiids v. Merrill, 63 Vt. 403, N. Y. Code Rep. N. S. 280, 1 14 L. R. A. 204, 22 Atl. 626. E. D. Smith 261; Morgan v. Skid- c Gaboon v. Fisher, 146 Ind. 588. more, 55 Barb. (N. Y.) 263; Whit- 36 L. R. A. 195, 45 N. E. 1071. tier V. Collins, 15 R. I. 90, 2 Am. 7 Talcott v. Friend, 103 C. C. A. St. Rep. 879, 23 Atl. 47; Chiids v. 80, 43 L. R. A. (N. S.) 649, 179 Merrill, 63 Vt. 463, 14 L. R. A. 2C4, Fed. 676. 22 Atl. 626. s Crossman v. Universal Rubber See, also, footnotes 7-10, this Co., 127 N. Y. 34, 13 L. R. A. 91, section. 27 N. E. 400. s Standard Sewing Machine Co. Rochester Distilling Co. v. 745 §556. CODE PLEADING AND PRACTICE. [Pt. II, purchase by an insolvent corporation or a bankrupt party, will not defeat an action on subsequently-maturing pur- chase-money notes, because the remedies are concurrent and consistent,^" both being in affirmance of the contract and for the recovery of the purchase-price of the prop- erty.^ ^ Ani/ subsequent action attacking conclusiveness of con- tract, after an action in affirmance thereof and seeking to enforce it, the rule will be otherwise,^^ where the first suit was brought with full knowledge of the alleged fraud and deceit,^^ or where the plaintiff proceeded to judgment in the action to enforce the contract after full knowledge of the fraud and deceit in procuring the same.^^ On the other hand, under the same principle of estoppel by elec- tion of remedies, an action to recover the property on the ground that the contract, and the possession, was procured by fraud and deceit, will bar a subsequent action upon the contract of sale to recover the purchase-price.^^ § 556. Contract and tort. The conflicting and inconsistent characters of the remedies by an action ex Devendorf, 72 Hun (N. Y.) 428, 25 Collins, 15 R. I. 90, 2 Am. St. Rep. N. Y. Supp. 200. 879, 23 Atl. 47. ' See footnote 15, this section. 12 Horner v. Boyden, 27 111. App. lOWalden Nat. Bank v. Birch, 573; Lloyd v. Brewster, 4 Paige 130 N. Y. 221, 14 L. R. A. 211, 29 Ch. (N. Y.) 537, 27 Am. Dec. 88. N. E. 127. See, also, supra, § 553, footnote As to concurrent and noncon- 1. flicting remedies, see, ante, §539, 13 Conrow v. Little, 115 N. Y. 540. 387, 5 L. R. A. 693, 22 N. E. 346; iiBowen v. Mandeville, 95 N. Y. Simon v. Goodyear Metallic Rub- 237, affirming 29 Hun 42; Heil- ber Shoe Co., 44 C. C. A. 612, 52 brom V. Herzog, 165 N. Y. 98, 103, L. R. A. 745, 105 Fed. 573. 53 N. E. 759, reversing 33 App. i4 Sanger v. Wood, 3 John. Ch. Div. 317, 53 N. Y. Supp. 841; (N. Y.) 416. Wanzer v. De Baun, 1 N. Y. Code is Moller v. Tuska, 87 N. Y. 160. Rep. N. S. 280, 1 E. D. Smith 261; See footnote 9, this section. Pratt, Hurst & Co. v. Tailer, 53 As to effect of election of Misc. (N. Y.) 82, 103 N. Y. Supp. remedies in case of fraudulent 1094; Morgan v. Skidmore, 55 purchase, see note 44 L. R. A. Barb. (N. Y.) 263; Whittier v. (N. S.) 25. 14.G fh. IV.] COXTRACT AND TORT — ELECTION. § 556 contractu and an action ex delicto, have been already discussed at length.^ Where tlie two remedies are co- existent on the same state of facts, there must be an elec- tion of remedies.- An action for damages for injuries resulting from the breach of a contract, in some cases, may be redressed either by an action ex contractu or an action ex delicto;^ and we have already seen* that an action against a common carrier, on breach of a contract for the transportation of either persons or stock or other property, may be either (1) ex contractu or (2) ex delicto, for failure to perform a public duty,^ but where the action is ex contractu no damages can be recovered other than those growing out of the breach of the contract, — e. g., damages for mental suffering and anguish for fail- ure to transport a corpse can not be recovered ;" but where the breach of the contract of the carrier involves a tort, the action being ex delicto, damages other than those incident to the breach of the contract may be recovered." In those cases in which money has been received through fraud and deceit, or for a fraudulent consideration, the party injured may elect (1) to sue the offending party for fraud and deceit,* (2) may waive the tort and pro- 1 See, ante, §525. Cal. 526, 79 Am. Dec. 193; Pltts- As to frauds, see, ante, § 555. burgh, C. C. & St. L. R. Co. v. 2 See, ante, § 541. Street, 26 Ind. App. 224. 233, 59 — Effect of election between con- N. E. 404; Nelson v. Great North- tract and tort.— See notes 17 Am. ern R. Co., 28 Mont. 297, 72 Pac. Dec. 233; 4 L. R. A. 146; 50 L. R. A. 642. (N. S.) 31. 6 Beaulieu v. Great Northern R. 3 Sheldon v. Steamship Uncle Co.. 103 Minn. 47, 19 L. R. A. Sam, 18 Cal. 526, 79 Am. Dec. 193; (N. S.) 564, 114 N. W. 353. Delmonte v. Southern Pac. Co., 2 See, also, authorities cited in Cal. App. 211, 215, 83 Pac. 271; note 19 L. R. A. (N. S.) 564. Justis V. Atchison, T. & S. F. R. ^ Sheldon v. Steamship Uncle Co., 12 Cal. App. 639, 641, 108 Pac. Sam, 18 Cal. 526, 79 Am. Dec. 193; 329. Rillinger v. Clyde Steamship Co.. 4 See, ante, §553, footnote 8. 158 Fed. 511, 519. r. Louisville & N. R. Co. v. Hine, s Loaiza v. Superior Court, 85 121 Ala. 234, 237, 25 So. 857; Shel- Cal. 11, 20 Am. St. Rep. 197, 9 don V. Steamship Uncle Sam. 18 L. R. A. 376, 24 Pac. 707. 747 §556 CODE PLEADING AND PRACTICE. [Ft. II, ceed as for the breach of an implied contract,® or (3) may rescind the contract and recover the money paid in an action in assumpsit/^ an action in the nature of an action for money had and received being the proper remedy in such a case.^^ Personal property wrongfully taken with- 9 Bayard v. Holmes, 33 N. J. L. (4 Vr.) 119, 6 Morr. Min. Reps. 598. Suit on contract not necessary; action to recover the money is a proper remedy. — Burton v. Driggs, S7 U. S. (20 Wall.) 125, 22 L. Ed. 299. See cases cited in footnote 11, this section. Action to recover the money is not based upon a breach of con- tract. — Minor v. Baldridge, 123 Cal. 187, 55 Pac. 783. 10 Id.; Robinson v. Welty, 40 W. Va. 385, 395, 22 S. E. 73. On discovery of the fraud the contract may be avoided, although the wrong-doer can not be put in statu quo, but so far as this can be done the party rescinding is bound to do it, and to do it as soon as practicable after the dis- covery of the fraud; there can be no rescission so long as he retains anything received under the con- tract, which he might have re- turned, and the withholding of which might be injurious to the other party. — Bayard v. Holmes, 33 N. J. L. (4 Vr.) 119, 6 iVlorr. Min. Reps. 598. See Norton v. Young, 3 Me. 30; Gushing v. Wy- man, 33 Me. 589; Sheppard v. Temple, 3 N. H. 455; Evans v. Gale, 21 N. H. 240; Cook v. Gil- man, 34 N. H. 556; Masson v. Bovert, 1 Den. (N. Y.) 69, 43 Am. Dec. 651; Baker v. Robbins, 2 Den. (N. Y.) 136; Moyer v. Shoemaker, 5 Barb. (N. Y.) 319; Wheaton v. 7 Baker, 14 Barb. (N. Y.) 594; Campbell v. Fleming, 1 Ad. & E. 40, 28 Eng. C. L. 44, 110 Eng. Repr. 1122. 11 See, among other cases: ALA. — Branch Bank v. Parish, 20 Ala. 433. CAL.— Alvarez v. Bran- nan, 7 Cal. 504, 68 Am. Dec. 274; Loaiza v. Superior Court, 85 Cal. 11, 20 Am. St. Rep. 197, 9 L. R. A. 376, 24 Pac. 707; Minor v. Bald- ridge, 123 Cal. 187, 55 Pac. 783. KY.— Ford v. Leatherer, 7 Ky. (4 Bibb) 512. ME. — Webster v. Drinkwater, 5 Me. 319, 17 Am. Dec. 238. MASS.— Bliss v. Thompson, 4 Mass. 488. M I C H.— Ricks v. Steel, 126 Mich. 408, 85 N. W. 1121; Gobbins v. Ashley, 146 Mich. 453, 109 N. W. 841; Macomber v. Edson Grape Juice Co., 160 Mich. 54, 125 N. W. 26. MISS.— O'Conley V. Natchez, City of, 9 Miss. (1 Smed. & M.) 31, 40 Am. Dec. 87. MO. — Magoffin v. Muldow, 12 Mo. 512; Fisher v. During, 53 Mo. App. 549; Stout v. Caruthersville Hard- ware Co., 131 Mo. App. 520, 110 S. W. 619; Steele v. Brazier, 139 Mo. App. 319, 123 S. W. 477. NEB. —Martin v. Hutton, 90 Neb. 34, 36 L. R. A. (N. S.) 602, 132 N. W. 727. N. H. — Lockwood v. Kelsea, 41 N. H. 185. N. J.— Bayard v. Holmes, 33 N. J. L. (4 Vr.) 119, 6 Morr. Min. Reps. 598. N. Y.— Bridge v. Penniman, 105 N. Y. 462, 1 Sily. Ct. App. 444, 12 N. E. 19; Sarasohn v. IMiles, 52 App. Div. (N. Y.) 628, 65 N. Y. Supp. lOS; 48 ch. IV.] CONTRACT AND TORT — ELECTION. § 55G out consent and converted to the wrongdoer's owti use, the owner may sue (1) for the tort, or (2) waive the tort and sue upon an implied contract. ^^ An action ex con- tractu against one who has converted property, based on an implied contract of sale, or an implied agi'eement to pay, precludes a subsequent action in tort for the con- version of the same property against other persons who participated in the tortious act;^^ and a surviving part- ner prosecuting to a decree a bill for an accounting against an executor of a deceased partner, for property coming into the hands of such executor as such, and sold by him, thereby ratifies such sale by the executor, and constitutes an election of remedies barring a subsequent action in tort against the executor.^^ Where a person enters upon the land of another without consent and wrongfully cuts timber, the owner of the land may (1) maintain an action for damages for the trespass, or (2) waive the tort and sue to recover the value of the timber cut, on an implied contract or promise to pay;^^ affirmed, 169 N. Y. 573, 61 N. E. No conversion by t h e wrong- 1134; Lambert v. Elmendorf, 124 doer of tbe property to his own App. Div. (N. Y.) 758, 109 N. Y. use, and he deriving no profit, Supp. 574. OKLA. — Howe v. there is no election of remedies. Martin, 23 Okla. 561, 138 Am. St. —See, post, § 557. Rep. 840, 102 Pac. 128. PA.— Pear- Property wrongfully taken with- soU V. Chapin, 44 Pa. St. 9. VT. — out consent, owner may maintain James v. Hodsden, 47 Vt. 127; action ex contractu against party Johnson v. Gate, 77 Vt. 218, 59 to whom transferred to recover Atl. 830. WIS. — Mann v. Stowell, the value thereof, even though the 3 Pinn. 220. FED. — D'Utricht v. taking was larceny. — Buchanan v. Melchor, 1 U. S. (1 Dal.) 428, 1 McCIain, 110 Ga. 477, 480, 35 S. E. L. Ed. 208; Burton v. Driggs, 87 665. U. S. (20 Wall.) 125, 22 L. Ed. 299; 13 Terry v. Munger, 121 N. Y. Wilson V. United States Cattle- 161, 18 Am. St. Rep. 303, 8 L. R. A. Ranch Co., 73 Fed. 994, 20 C. C. A. 216, 24 N. E. 272, affirming 49 Hun 244, 36 U. S. App. 634. 560, 2 N. Y. Supp. 348. 12 Haynie v. Sites, 56 Colo. 115, i* Bradley v. Brigham, 149 Mass. 138 Pac. 42; Martin v. McCarthy, 141, 3 L. R. A. 507, 21 N. E. 301. 3 Colo. App. 37, 32 Pac. 551; Smith in Roberts v. Moss, 127 Ky. 657, V. McCarthy, 33 Kan. 318, 18 Pac. 17 L. R. A. (N. S.) 2S0, 106 S. W. 201. 297. 749 §557 CODE PLEADING AND PRACTICE. [Ft. II, but after an action for the value of the timber cut tlio owner can not maintain an action for the trespass. ^^ § 557. Benefit received necessarv to an ELECTION. To entitle the plaintiff to waive the tort and sue upon an implied contract, the defendant must have received some benefit from the tortious act charged ;^ for it is a well-settled principle of law that a promise is not implied against or without the consent of the person to be charged,^ or else because natural justice plainly re- quires it, except in consideration of some benefit received.^ 16 Id. See, also, notes 17 L. R. A. (N. S.) 280; 50 L. R. A. (N. S.) 31. 1 ALA. — Crow v. Boyd, 17 Ala. 51; Pike v. Bright, 29 Ala. 332. IOWA — Moss V. Arnold, 43 Iowa 187, 22 Am. Rep. 239. ME.— Web- ster V. Drinkwater, 5 Me. 319, 17 Am. Dec. 238; Balch v. Patten, 45 Me. 41, 71 Am. Dec. 526. MASS.— Jones V. Hoar, 22 Mass. (5 Pick.) 289; Berkshier Glass Co. v. Wol- cott, 84 Mass. (2 Allen) 227, 79 Am. Dec. 781. MICH. —Watson V. Stever, 25 Mich. 386, 22 Am. Rep. 242. N. H. — Mann v. Locke, 11 N. H. 244, 246, 248; Smith v. Smith, 43 N. H. 536. N. J.— Budd V. Hiller, 27 N. J. L. (3 Dutch.) 43; Randolph Iron Co. v. Elliott, 34 N. J. L. (4 Vr.) 184. VT.— Stearns v. Dillingham, 22 Vt. 624, 54 Am. Dec. 88. See notes 17 Am, Dec. 242; 40 Am. Dec. 89. 2 Webster v. Drinkwater, 5 Me. 319, 17 Am. Dec. 328; Whiting v. Sullivan, 7 Mass. 107. 3 ALA.— Parke v. Bright, 29 Ala. 322; Fluler v. Duren, 36 Ala. 73, 76 Am. Dec. 318. CONN.— Tucker v. Jewett, 32 Conn. 563. ' GA.— Bar- low V. Stalworth. 27 Ga. 517. ILL. — Morrison v. Rogers, 3 111. (2 Scam.) 317; O'Reer v. Strong, 13 111. 688. KY.— Guthrie v. Wicliff, 8 Ky. (1 A. K. Marsh.) 83; Sanders v. Hamilton, 33 Ky. (3 Dana) 552. ME.— W e b s t e r v. Drinkwater, 5 Me. 319, 17 Am. Dec. 238; Emerson v. McNamara, 41 Me. 565. MAS S.— Jones v. Hoar, 22 Mass. (5 Pick.) 289; Berkshier Glass Co. v. Wolcott. 84 Mass. (2 Allen) 227, 79 Am. Dec. 781. N. H.— Mann v. Locke, 11 N. H. 244; Smith v. Smith, 43 N. H. 536. PA.— Will et v. Willet, 3 Watts 277; Pearsoll v. Chapin, 44 Pa. St. 9. VT. — Stearns v. Dilling- ham, 22 Vt. 624, 626, 54 Am. Dec. 88. WIS.— Elliott V. Jackson, 3 Wis. 649. Judge Cooley says: "If one has taken possession of property, and sold or disposed of it, and re- ceived money or money's worth therefor, the owner is not com- pelled to treat him as a wrong- doer, but may aflBrm the sale as made on his behalf, and demand in this form of action the benefit of the transaction. But we can not safely say that the law will go very much farther than this in implying a promise, where the cir- cumstances repel all implication of a promise in fact. . . . And in 750 I Ch. IV,] CORPORATION — CO-TENANT. §§558,559 Thus, where one wrongfully and negligently injures or destroys the property of another, without converting it to his own use, or in some manner receiving a substantial benefit through the tortious act charged, the owner 's only remedy is an action ex delicto on the tort;^ and where damage is done to growing crops, or to other personal property, by trespassing stock, the owner of such stock not participating in the trespass and receiving no benefit therefrom, the injured party can not waive the tort and sue on an implied contract to recover the damages done by the trespassing stock; he is confined to his action on the tort.^ § 558. Corporation without franchise, etc. In the case of a corporation operating without authority, or without a franchise, the state must elect to proceed against such corporation (1) by quo warranto to vacate the corporate charter for violation of special franchise, or (2) in an action for usurpation of a franchise not conferred.^ § 559. Co-tenant excluded from property. In the case of property owned in common, and one of the co- tenants is excluded or ousted from the connnon property by another or others of his co-tenants,^ the ousted co- the case of the taking of personal Birmingham Waterworks Co., 185 property it is generally held that Ala. 388, Ann. Gas. 1916B, 1G6, 64 a sale by the defendant should be So. 23. shown." — Watson v. Steve, 25 See note Ann. Gas. 191013, 179. Mich. 386, 22 Am. Rep. 242. i Ouster must be alleged in the ■t Reynolds v. Padgett, 94 Ga. complaint in a proper manner. — 347, 21 S. E. 570; Eads v. Pitkin, See Bell v. Hudson, 73 Cal. 285, 3 G. Greene (Iowa) 77; Kyle v. 290, 2 Am. St. Rep. 791, 795, 14 Chester, 42 Mont. 522, 37 L. R. A. Pac. 791. (N. S.) 230, 113 Pac. 749. Ouster muct be established as 5 Tightmeyer v. Mongol d, 20 a fact by the finding of a jury. — Kan. 90; Watson v. Stever, 25 Carpentier v. Mcndenhall, 28 Cal. Mich. 386, 22 Am. Rep. 242; Page 484, 485, 487, 87 Am. Dec. 135. V. R) bbitt, 21 N. H. 389. See Packard v. Johnson, 57 Cal. 1 State ex rel. Weatherly v. 183. 751 §5G0 CODE PLEADING AND PRACTICE. [Pt. II, tenant may elect (1) to bring proceedings for partition,^ but a partition will not furnish redress for the disposses- sion, whether total or only partial," because the equity suit of partition can not be used for the purpose of redress for an ouster, or for other legal wrong pre\dously com- mitted;^ and in such a proceeding no account can be taken of damages, but of mesne profits only;^ (2) may bring an action for an accounting for rents and profits f or (3) may maintain an action for damages suffered by reason of the ouster,'^ not being limited to his remedies to partition and accounting.^ ^560. Damage to eeal pkoperty.* In the case of damages to real property by the destruction of growing- trees, detaching and removing buildings, digging and hauling away gravel, drawing off water impounded in a mill pond or other enclosure,^ and the like, the party in- 2 Adam v. Briggs Iron Co., 61 Mass. (7 Cush.) 368. In lode mines it is impossible to effect a fair partition, because the metallic substances occurring in veins are not distributed uni- formly, either as to quantity or quality, being found in "shoots" or "vuggs," "kidneys" and other irregular bodies. — Paul v. Cragnas, 25 Nev. 293, 47 L. R. A. 540, 59 Pac. 857, 60 Pac. 983. 3 Carpentier v. Webster, 27 Cal. 524, 550. 4 Carpentier v. Webster, 27 Cal. 524. 5 Id.; Paul V. Cragnas, 25 Nev. 2't3, 47 L. R. A. 540, 59 Pac. 857, 60 Pac. 983. See 1 Story Eq. Jur., § 466. c. Gage V. Gage, 66 N. H. 282, 28 L. R. A. 829, 29 Atl. 543; Ela v. Ela, 70 N. H. 163, 164, 47 Atl. 414; Morrill v. Weeks, 70 N. H. 178, 181, 46 Atl. 32; Roberts v. Clare 7 mont R. & Lighting Co., 74 N. H. 217, 220, 124 Am. St. Rep. 962, 66 Atl. 485. See full collection of cases, 28 L. R. A. 829-862, and especially authorities on pp. 832 et seq. 7 Carpentier v. Webster, 27 Cal. 524; Carpentier v. Gardiner, 29 Cal. 160, 162, 163; Carpentier v. Mitchell, 29 Cal. 330, 333; Paul v. Cragnas, 25 Xev. 293, 47 L. R. A. 540, 59 Pac. 857. 60 Pac. 983. 8 Paul V. Cragnas, 25 Nev. 293, 47 L. R. A. 540, 59 Pac. 857, 60 Pac. 983. 1 As to trespass upon real prop- erty, see, ante, § 556, footnotes 15 and 16; § 557, footnote 5. 2 Union Water Power Co. v. Lewiston, Inhabitants of, 101 Me. 564, 570, 65 Atl. 67; Lancaster & J. Elec. Light Co. v. Jones, 75 N. H. 182, 71 Atl. 871; Green Bay & M. Canal Co. v. Kaukauna Water Power Co.. 112 Wis. 323, 62 L. R. A. 579, 87 N. W. 864. 52 ell. IV.] DAMAGES TO REAL PROPERTY. § 5G0 jured may elect to sue to recover (1) the value of the thing destroyed or taken, or (2) damages to the freehold or to plaintiff's interest therein.^^ The rule as to the measure of damages in the two actions or remedies is not the same. If the action is to recover the value of the thing destroyed, or injured, or removed, the measure of damages is the value thereof, and that value will be ascertained as in the case of any personal property sim- ilarly treated and injured or destroyed.^ If the action is to recover for the injury to the freehold, or to the plaintiff's interest therein, the measure of damages is the difference in the value of the freehold or land, or of plaintiff's interest therein, before and after the act com- plained of.5 In the case of drawing off water impounded by a dam in a pond or elsewhere, the measure of dam- ages is the value of the power or water actually taken, with interest f and the fact that the owTier of the water had no facilities for using the same, or of using the power that it created, so that it would otherwise have gone to waste, can not be considered in mitigation of damages." 3 Dwight V. Elmira, C. & N. R. N. W. R. Co. v. Kendall, 108 Co., 132 N. Y. 199, 28 Am. St. Rep. C. C. A. 251, 186 Fed. 141. 563, 15 L. R. A. 612, 30 N. E. 398; As to measure of damages for Bailey v. Chicago, M. & St. P. R. injury to or destruction of prop- Co., 3 N. D. 531, 19 L. R. A. 653, erty, see note 19 L. R. A. 653. 54 N. W. 596. Dwight v. Elraira, C. & N. R. 4 L o u i s V i 11 e & N. R. Co. v. Co., 132 N. Y. 199, 28 Am. St. Rep. Beeler, 126 Ky. 335, 128 Am. St. 563, 15 L. R. A. 612, 30 N. E. 398; Rep. 291, 15 Ann. Cas. 913, 103 Bailey v. Chicago, M. & St. P. R. S. W. 300; Fremont, E. & M. V. R, Co., 3 S. D. 531, 19 L. R, A. 653. Co. V. Crum, 30 Neb. 70, 46 N. W. 54 N. W. 596. 217; Dwight v. Elmira, C. & N. R. 6 Lancaster & J. Elec. Light Co. Co., 132 N. Y. 199, 28 Am. Si. Rep. v. Jones, 75 N. H. 182, 71 Atl. 871; 563, 15 L. R A.. 612, 30 N. E. 398; Green Bay & M. Canal Co. v. Whitbeck v. New York Cent. R. Kaukauna Water Power Co., 112 Co., 36 Barb. (N. Y.) 644; White W^is. 323, 62 L. R. A. 579, 87 N. W. V. Chicago, M. & St. P. R. Co., 1 864. S. D, 326, 9 L. R. A. 824, 47 N. W. 7 Green Bay & M. Canal Co. v. 146; Bailey v. Chicago, M. & St. Kaukauna Water Power Co., 112 P. R. Co., 3 S. D. 531, 19 L. R. A. Wis. 323, 62 L. R. A. 579, 87 N. W. 653, 54 N. W. 596; Chicago & 864. I Code PI. and Pr. — 48 753 §561 CODE PLEADING AND PRACTICE, [Pt. IT, § 561. Death from negligent or wrongful act — Common-law rule. At the common law, in a civil court, the death of a human being could not be complained of as an injury.^ The right of action by or for the benefit of parents, children or heirs of a person who has met his death by or through a negligent act, unlawful vio- lence, or a wrongful act of another, for damages to them by such act and consequent death, exists solely by virtue of the statute at the place where the act complained of occurred, and the injury was inflicted. An action of this kind being transitory in its nature,^ the lex loci and not the lex fori governs in the trial of the cause. ^ Under the doctrine of the maxim actio personalis moritus cum per- sona — a personal action dies with the person, an action for damages for a wrongful death abates with the death 1 Lord Ellenborough in Baker v. Bolton, 1 Campb. 493, 10 Rev. Rep. 734. See Bond v. United Railroads, 159 Cal. 270, 113 Pac. 366; Clark V. Goodwin, 170 Cal. 527, L. R. A. 1916A, 1142, 10 N. C. C. A. 1020, 150 Pac. 357; Eureka, City of, v, Murrified, 53 Kan. 794, 37 Pac, 113; Mascitelli v. Union Carbide Co., 151 Mich. 693, 115 N. W. 721; Dillon V. Great Northern R. Co., 38 Mont. 485, 100 Pac. 960; Harsh- man V. Northern Pac. R. Co., 14 N. D. 69, 103 N. W. 412; Gulf, C. & S. F. R. Co. V. Beall, 91 Tex. 310, 66 Am. St. Rep. 892, 41 L. R. A. 807, 42 S. W. 1054; Johnson v. Eau Claire, City of, 149 Wis. 194, 135 N. W. 481; Hambly v. Trott, 1 Cowp. 371, 98 Eng. Repr. 1136, 2 Eng. Rul. Gas. 1; Osborn v. Gillett, L. R. 8 Ex. 88, 42 L. J. Ex. 53. See notes 41 L, R. A. 807; 2 Eng. Rul. Gas. 14-18. 2 See, ante, §§322, 339. 3 COLO.— Denver & R.' G. R. Co. V. Warring, 37 Colo. 122, 86 Pac. 305. IOWA — Coe's Estate, In re. 130 Iowa 307, 114 Am. St. Rep. 416, 4 L, R. A. (N. S.) 814, 106 N. W. 743. KAN.— Hartley v. Hartley, 71 Kan. 691, 114 Am. St. Rep. 519, 81 Pac. 505. KY.— McDonald v. McDonald's Admr., 96 Ky. 209, 49 Am. St. Rep. 289, 28 S. W. 482; Louisville & N. R. Co. v. Whit- low's Admr., 105 Ky. 1, 114 Ky. 470, 41 L. R. A. 614, 43 S. W. 711. MINN. — Negaubauer v. Great Northern R. Co., 92 Minn. 184, lOi Am. St. Rep. 674, 97 N. W. 620. OHIO— Ott V. Lake Shore & M. S. R. Co., 18 Ohio Cir. Ct. Rep. 395, 10 Ohio Cir. Dec. 85. UTAH — T h o r p e v. Union Pac. Coal Co., 24 Utah 475, 68 Pac. 145. F E D. — Davidow v. Pennsylvania R. Co., 85 Fed. 943; Van Doren v. Pennsylvania R. Co., 35 C. C. A. 282, 93 Fed. 260; Erickson v. Pa- cific Coast Steamship Co., 9G Fed. 8 0; International N a v. Co. v. Lindstrom, 60 C. C. A. 649, 123 Fed. 475, reversing 117 Fed. 170; Leman v. Baltimore & O. R. Co., 128 Fed. 191. 754 ch. IV.] NEGLIGENT ACT, ETC., CAUSING DEATH. §561 of the person injured,^ Thus, at common law, a husband could not recover damages for the death of his wife through the negligent or wrongful act of another,'"' or a parent for the death of his child through a like means,^' and the like. But a husband had, and still has, a right of action for damages (1) for the loss of consortium" — the consolation and companionship and society of his wife — per quod consortium amisit — whereby he lost tlie company — ran the old declaration at common law, being descriptive of the special damages he had sustained and for which he sought to recover;- and (2) for her services.'' Likewise a parent had at common law, and still has, inde- pendent of any statute, a right of action (1) for loss of services of a minor child, resulting from the death of such child through the negligent or wrongful act of an- other, and damages are recoverable from the time of the injury until the child would have arrived at the age of tw^enty-one — or other age at which emancipated by the law,^^ — but in all such cases the recovery will be less the 4 Broom's Maxims 903-916; Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 451; Harrisburg, The, 119 U. S. 199, 30 L. Ed. 358, 7 Sup. Ct. Rep. 140; Baker v. Bolton, 1 Cow p. 493, 10 Rev. Rep. 734; Hambly v. Trott, 1 Cowp. 371, 98 Eng. Repr. 1136, 2 Eng. Rul. Gas. 1. See notes (English cases and American cases), 2 Eng. Rul. Cas. 7-18; 1 Extra Annotation E. R. C, vol. 1, p. 148. 5 Higgins V. Butcher, Yelv. 89, 80 Eng. Repr. 61. « Edgar v. Costello, 14 S. C. 20, 37 Am. Rep. 714; Gulf, G. & S. F. R. Co. V. Beall, 91 Tex. 310, 66 Am. St. Rep. 892, 41 L. R. A. 807, 42 S. W. 1054; Stevens v. Ritter Lumber Co., W. M., 108 Va. 575, 18 L. R. A. (N. S.) 316, 62 S. E. 351. See notes 37 Am. Rep. 716; 41 L. R. A. 807. 7 Eden v. Lexington & F. R. Co., 53 Ky. (14 B. Mon.) 204; Kelly V. New York, N. H. & H. R. Co., 168 Mass. 308, 60 Am. St. Rep. 397, 38 L. R. A. 631, 46 N. E. 10G3. s 3 Bl. Com. 140; Guy v. Livesey, Cro. Jac. 501, 538, 79 Eng. Repr. 428. 9 Long V. Morrison, 14 Ind. 595, 77 Am. Dec. 72. 10 Davis V. St. Louis, L M. & S. R. Co., 53 Ark. 117, 7 L. R. A. 283, 13 S. W. 801; Long v. Mor- rison, 14 Ind. 595, 77 Am. Dec. 72; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Louisville, N. A. & C. R. Co. V. Goodyknootz, 119 Ind. Ill, 12 Am. St. Rep. 371, 21 N. E. 472; Jackson v. Pittsburgh, C. C. & St. L. R. Co., 140 Ind. 241, 49 Am. St. Rep. 142, 39 N. E. 663; Eden v. i'o'o §562 CODE PLEADING AND PRACTICE. [Pt. II, cost of maintenance;^^ and also, where the death was not instantaneous,^^ (2) such reasonable expenses for medical attendance, care and nursing as were incurred in and during the sickness resulting from the injury and termi- nating in the death of the child ;^" although it seems that he (3) can not recover for the expense incurred for the funeral and burial of the child. ^* <§ 562. Under statute: Election. In many of the states statutes have been passed under which the cause of action which a person injured by the negligent or wrongful act of another has to recover damages there- for, survives his death. Under such statutes damages for the pain and suffering of the deceased may be recov- ered in a suit brought after his death; and, it seems that, under such statutes, the personal representative of the deceased may recover not only (1) for his pain and suf- fering, but also (2) damages for his death caused to the survivors by loss and deprivation of his society,^ although Lexington & F. R. Co., 53 Ky. (14 B. Mon.) 204; Covington Street R. Co. V. Packer, 72 Ky. (9 Bush) 455, 15 Am. Rep. 725; Natchez, J. & C. R. Co. V. Coolf, 63 Miss. 38; Edgar v. Costello, 14 S. C. 20, 37 Am. Rep. 714. See note 41 L. R. A. 811. 11 St. Louis, I. M. & S. R. Co. V. Freeman, 36 Arlc. 41; Munroe V. Pacific Coast Dredg. & Reclm. Co., 84 Cal. 515, 526, 18 Am. St. Rep. 248, 24 Pac. 303; Rockford, R. I. & St. L. R. Co. V. Danley, 82 111. 198, 25 Am. Rep. 308; Penn- sylvania R. Co. V. Lilly, 73 Ind. 252; Walters v. Chicago, R. I. & P. R. Co., 41 Iowa 71; Interna- tional & G. N. R. Co. V. Kindred, 57 Tex. 491. 12 As to effect of instantaneous death, see, post, § 5G2, footnote. 13 Little Rock & Ft. S. R. Co. V. Barker, 33 Ark. 350, 34 Am. Rep. 44; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Louisville, N. A. & C. R. Co. v. Goodyknootz, 119 Ind. Ill, 12 Am. St. Rep. 371, 21 N. E. 472; Jackson v. Pittsburgh, C. C. & St. L. R. Co., 140 Ind. 241, 49 Am. St. Rep. 142, 39 N. E. 663; Natchez, J. & C. R. Co. v. Cook, 63 Miss. 38; Wilson v. Burnstead, 12 Neb. 1, 10 N. W. 411. 14 Jackson v. Pittsburgh, C. C. & St. L. R. Co., 140 Ind. 241, 49 Am. St. Rep. 142, 39 N. E. 663; Dalton V. Southeastern R. Co., 4 J. Scott N. S. (4 Com. Bench N. S.) 296, 93 Eng. C. L. 296. Compare: Pack v. N e w York, City of, 3 N. Y. 489. 1 See Philo v. Illinois Cent. R. Co., 33 Iowa 47; Nashville & C. R. Co. V. Prince, 49 Tenn. (2 Heisk.) 580; Nashville & C. R. Co. v. Smith, 53 Tenn. (6 Heisk.) 174; Collins V. East Tennessee, V. & G. R. Co., 56 Tenn. (9 Heisk.) 841. 756 ch. IV.] NEGLIGENT ACT — INSTANTANEOUS DEATH. § 562 other cases liold that the personal representative, having the right to sue (1) for the pain and suffering of the deceased, or (2) for his death, must elect between the two causes of actions and remedies, ^ and this is thouglit to be the better doctrine, supported by the weight of authority. Instantaneous death resulting from the negligent or wrongful act complained of, the personal representative of the decedent, or other person entitled to sue for pain and suffering of a person who meets his death by or through such an act, is not entitled to maintain an action for pain and suffering of the deceased, on the theory that the deceased did not so suffer,^ and that the remedy, if any, is the statutory remedy for wrongful death ;* but if the deceased lived any appreciable time after the injury, the personal representative, or other party entitled to sue, can recover for the pain and suffering of the deceased.^ Where there is a statutory action for wrongful death, and also a statutory survival of the injured party's right of action, the personal representative, or other party entitled to sue, must elect under which he will proceed.^ 2 Connor v. Paul, 75 Ky. (12 Deceased becoming instantly un- Bush) 144. conscious, no recovery can be had 3 Sherman v. Western Stage Co., for physical and mental suffering. 24 Iowa 515 ; Kennedy v. Standard —Mulchahey v. W a s h b u r n Car Sugar Refinery, 125 Mass. 90, 28 ^j^^^j ^o., 145 Mass. 281. 1 Am. Am. Rep. 214; Moran v. IloUings, gt. Rep. 458, 14 N. E. 106. 125 Mass. 93; Tully v. Fitchburg T> o -lOA TKiT A'yn Tv/r 1 1 u 4 DolsoH V. Lake ShOTB & R. Co., 134 Mass. 439; Mulchahey xrr , , ^ ,,.^, , ri 1.K M. S. R. Co., 128 Mich. 444, 448, 87 V. Washburn Car Wheel Co., 145 N W fi29 Mass. 281, 1 Am. St. Rep. 458, 14 ^^- ^- • N. E. 106; Sweetland v. Chicago ^I^.; Oliver v. Houghton County & G. T. R. Co., 117 Mich. 329, 43 Street R. Co., 134 Mich. 3G7. 368, L. R. A. 568, 75 N. W. 1066; Cor- 104 Am. St. Rep. 607, 3 Ann. Cas. sair. The, 145 U. S. 335, 12 Sup. ^3, 90 N. W. 434. Ct. Rep. 949, sub nom. Brown v. « Dolson v. Lake Shore & Brown, 36 L. Ed. 727; Cheatham M. S. R. Co., 128 Mich. 444, 87 V. Red River Line, 56 Fed. 248. N. W. 629. 57 §5G2 CODE PLEADING AND PRACTICE. [Pt. II, Alternative remedies provided for the recovery of dam- ages in the case of death by the negligent or wrongful act of another, the general rule is that only one action can be brought/ An action commenced^ and a recovery had by the deceased for the negligent or wilful act resulting in his death, bars an action by the personal representative, or other person entitled to sue, for damages arising out of the death resulting from the injury thus received, and for which a recovery was had by the deceased. '^ So, also, another action by a party entitled to sue under the stat- ute for damages for the death — e. g., the widow, will bar a subsequent action under the statute by the minor heirs, there being no joint right of action under the statute, even though the first suit was voluntarily dismissed.^" A husband 's common-law right of action for loss of con- sortium,^^ on account of a negligent or wrongful act T See Munroe v. Pacific Coast Dredg. & Reclm. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303; Goodsell V. Hartford & N. H. R. Co., 33 Conn. 52; Halton v. Daly, 106 111. 131; Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72; State v. Maine Cent. R. Co., 60 Me. 490; Safford v. Drew, 10 N. Y. Super. Ct. Rep. (3 Duer) 627; not approv- ing Barker v. Borley, 16 Barb. (N. Y.) 60; Mason v. Union Pac. R. Co., 7 Utah 77, 24 Pac. 796; Graetz v. McKenzie, 3 Wash. 194, 28 Pac. 331. Employers' Liability Acts, fed- eral and state, and Workmen's Compensation Acts can not be dis- cussed here as to their effect upon other remedies for the relief sought, and as to the alternative remedies open to parties seeking relief; that work has been admir- ably and exhaustively done, par- ticularly for the latter, in a note in L. R. A. 1916A, 23-272. 8 U n d e r Pennsylvania statute 1851, Pub. Laws, 674, § 19.— Birch V. Pittsburgh, C. C. & St. L. R. Co., 165 Pac. 339, 30 Atl. 826. Action abating with death of party injured who Instituted it, can not be pleaded in abatement of a suit given by statute to per- sonal representative and next of kin for damages for the death. — Indianapolis & St. L. R. Co. v. Stout, 52 Ind. 143; International & G. N. R. Co. V. Kuehn, 70 Tex. 582, 8 S. W. 484. 9 Hansford v. Payne. 74 Ky. (11 Bush) 380; Connor v. Paul, 75 Ky. (12 Bush) 144; Littlewood v. New York, City of, 89 N. Y. 24, 42 Am. Rep. 271, 1 Am. Law Mag. 247; Legg v. Button, 64 Vt. 652, 24 Atl. 1016. 1 McXamara v. Slavens, 76 Mo. 11 See, ante, § 561, footnote 7. 58 fh. IV.] NEGLIGEXCE CAUSfXG DEATH — REMEDIES. §562 resulting in his wife's deatli, has been said to be barred by the recovery of a judgment by her personal repi-e- sentative for her death, in an action under the statute, for the benefit of her estate, Avhich is more advantageous to the husband than his common-law right would be,^- although other cases hold that a recovery by the personal representative, under the statute, for her death, does not bar the husband's common-law right of action ;^-^ and where a husband has recovered in a common-law cause of action for the loss of consortium, he can not thereafter maintain an action, under the statute, for her death, ^* he being required to elect between the two causes of action or remedies. ^^ This holding is on the theory that the statute, while it creates and gives a new cause of action or remedy,^^ does not thereby confer a rigiit to two coexistent and nonconflicting causes of action or rem- edies'^ upon the party.^^ Although, under some statutes 12 Louisville & N. R. Co. v. Mc- Elwain, 78 Ky. 700, 56 Am. St. Rep. 385, 34 L. R. A. 788, 34 S. W. 236. 13 Mageau v. Great Northern R. Co., 103 Minn. 290, 15 L. R. A. (N. S.) 511, 115 N. W. 651. 14 Lynch v. Davis, 12 How. Pr. (N. Y.) 323. ijQwensboro & N. R. Co. v. Barclay, 102 Ky. 16, 28, 43 S. W. 177. Election of remedies between common-law right of action for pain and suffering of the de- ceased and the statutory cause of action required. — Thomas v. Marysville Gas Co., 108 Ky. 224, 53 L. R. A. 147. 56 S. W. 153. 16 Lord Campbell's Act, and the American statutes modeled after it, giving a cause of action for the death of a party caused by the negligent or wrongful act of an- other, creates a new cause of ac- tion.— See Munro v. Pacific Coast Dredg. & Reclm. Co., 84 Cal. 515, 524, 18 Am. St. Rep. 248, 24 Pac. 303; Chicago & R. L R. Co. v. Morris, 26 111. 400; Safford v. Drew, 10 N. Y. Super. Ct. Rep. (3 Duer) 627; Blake v. Midland R. Co., 18 Ad. & E. N. S. (18 Q. B.^ 93, 83 Eng. C. L. 93; Pyrn v. Great Northern R. Co., 2 Best & S. 75(«, 110 Eng. C. L. 759, 121 Eng. Repr. 1254; Bradshaw v. Lancashire & Y. R. Co., L. R. 10 C. P. 189; Leggott v. Great Northern R. Co., L. R. 1 Q. B. Div. 599: Read v. Great Eastern R. Co., L. R. 3 Q. B. 759. 17 See, ante, §§ 539, 510. IX Peers v. Nevada Power, Lis'.it & Water Co.. 119 Pod. 400. 403. As to right to maintain more than one action lor a negli.51 nt or wrongful aci resulting in death, see Louisville & N. R. Co. v. Mc- Elwain. 08 Ky. 700, 56 Am. Ct. Rep. 385, 34 L. R. A. 788, 34 S. W. 2:'.0; 759 § 563 CODE PLEADING AND PRACTICE, [Pt. II, conferring a right of action for the death of a party by or through a negligent or wrongful act, it is held that there are two causes of actions or remedies: (1) By the husband under his common-law cause of action or rem- edy, and (2) by the children under the statute.^^ Much depends upon the statutory provision, or rather, the wording of the statute; and the particular statute in- volved should be carefully considered in consulting and relying upon the cases cited herein. § 563. Deposit wrongfully paid to another. In those cases in which a deposit in a savings bank is wrong- fully paid out, without authority, to one who is not en- titled to it, the person who is the owner of the deposit and rightfully entitled to the money, has his election of remedies in (1) an action against the person wrongfully receiving the money on the deposit, for money had and received, or (2) an action against the bank, as a debtor,^ to recover the amount of the deposit; and an election to sue the person wrongfully receiving the money of the deposit, is a bar to a subsequent action against the bank, even though the judgment against the person receiving the money of the deposit is uncollectible.^ This is on the ground that where a party has alternative and con- flicting remedies,^ a choice between them, once made, his right to follow the other is gone.'* Hill V. Pennsylvania R. Co., 178 Gav. Bank, 76 Wis. 242, 44 N. W. Pa. St. 223, 56 Am. St. Rep. 754, 1096. 35 L. R. A. 196, 35 Atl. 997, and 2 Fowler v. Bowery Sav. Bank, the notes appended to those cases 113 N. Y. 450, 10 Am. St. Rep. 479, in the selected and annotated 4 L. R. A. 145, 21 N. E. 172. series. 3 See, ante, § 538. 19 Rogers V. Smith, 17 Ind. 323, 4 Bank of Beloit v. Beale, 31 79 Am. Dec. 4S3. N. Y. 473, affirming 20 N. Y. Super. 1 Burrell v. San Francisco Sav. Ct. Rep. (7 Bosv/.) 615, which af- Union, 136 Cal. 490, 69 Pac. 144; frmed 11 Abb. Pr. 375, 20 How. Ovilton V. German Sav. Soc, 84 Pr. 331; Kennedy v. Thorp, 51 U. 3. (17 Wall.) 109, 21 L. Ed. 618. N. Y. 174, reversing 2 Daly 255, 3 See Bryson v. Security Trust & Abb. Pr. N. S. 131; Fields v. Sav. Bank, 29 Cal. App. 596, 153 Bland, 81 N. Y. 239, 8 Abb. N. C. Pac. 987; Wegner v. Second Ward 221, 59 Ho.v. Pr. 85; Riley v. Al- 7G0 I •h. IV.] ENCROACHMENT UPON LAND REMEDIES. §564 § 564. Encroachment upon land : Upon rights in STREET OR HIGHWAY. In the casG of an unauthorized en- croachment upon the lands of another, — e. g., by open- ing an unauthorized, or a not properly authorized, street or other public highway, — the owner of the fee in the land may (1) maintain ejectment;^ and if he can make a showing that (a) irreparable injury will be done, or that (b) the parties are insolvent, and that he has no ade(|uate remedy at law, he may (2) maintain an injunction;- and where authorities are proceeding to open a road or street through land without having first compensated the ownei- for the damages he will sustain thereby, and which hav,' been assessed to him, he may maintain an injunction." Interest in street or other public highway of abutting owner who owns the fee in such street or highway — e. g., by constructing a street railway, — such abutting owner has various remedies. Thus, he may (1) maintiiin ejectmont in California,^ Illinois,'' Indiana,"^ Kentucky,' bany Sav. Bank, 36 Hun (N. Y.) 522; affirmed, 103 N. Y. 669; Boots V. Ferguson, 46 Hun (N. Y.) 131. 1 Le Blond v. Peshtigo, Town of, 140 Wis. 604, 25 L. R. A. (N. S.) 511, 123 N. W. 157. See note 25 L. R. A. (N. S.) 511. 2 Leach v. Day, 27 Cal. 643, 646; More V. Massini, 32 Cal. 590, 594; Richards v. Dower, 64 Cal. 62, 64, 28 Pac. 113. 3 McCann v. Sierra County, 7 Cal. 121, 123; Leach v. Day, 27 Cal. 643; San Francisco & S. J. R. Co. V. Mahoney, 29 Cal. 112, 117. Compare: Fox v. Western Pac. R. Co., 31 Cal. 538, 546; doctrine disapproved in Davis v. San Lor- enzo R. Co., 47 Cal. 517; Sanborn v. Belden, 51 Cal. 266. 4 Weyl v. Sonoma Valley R. Co., 69 Cal. 203, 10 Pac. 510; Porter v. Pacific Coast R. Co. (Cal.), 18 Pac. 4 28; Finch v. Riverside & A. R. Co., 87 Cal. 597, 25 Pac. 765. Burden imposed under license or franchise from a duly-constituted public authority defeats the abut- ting property-owner, with fee in the street or other highway, to maintain ejectment. — Montgomery V. Santa Ana Westminster R. Co.. 104 Cal. 186, 43 Am. St. Rep. 89. 25 L. R. A. 654, 37 Pac. 786; Ed- wardsville R. Co. v. Sawyer, 92 111. 377; Atchison, T. & S. F. R. Co. v. Manley, 42 Kan. 577. 22 Pac. 567: Phillips V. Dunkirk, W. & P. R. Co., 78 Pa. St. 177. n Postal Tel. Cable Co. v. Katon, 170 111. 513, 62 Am. St. Rep. :390, 39 L. R. A. 722. 49 .V. E. 303. fi Terre Haute & S. E. R. Co. v. Rodel. 89 Ind. 128, 46 Am. Rep. 164; Porter v. Midland R. Co., \-o Ind. 476. 25 N. E. 556; Freedom v. Norris. 128 Ind. 377. 27 N. E. S09. 7 Louisville, St. L. & T. R. Co. V. Hess, 92 Ky. 407, 17 S. W. 870. 7G1 §565 CODE PI.EADING AND PRACTICE. [Pt. II, New Jersey,^ New York,^ Wisconsin, ^^ and perhaps else- where; or he may (2) enjoin the added burden to the street or other public highway (a) where he can bring his cause within the equitable rules, (b) as a nuisance, (c) as a taking without consent;'^ or he may (3) main- tain an action in trespass;^- and (4) he may maintain an action for damages. § 565. Ex CONTRACTU AND EX DELICTO ACTIONS. The distinction between the remedies in actions ex contractu and actions ex delicto has been already discussed.^ These remedies may be coexistent on the same state of facts, but they are alternate and conflicting remedies,- and election of one bars the other. Thus, bringing an action ex contractu on an implied contract of sale and purchase against one converting property to his own use, bars a subsequent action for conversion against other persons participating in the wrongful acts of the first defendant;^ bringing an action against a broker for fraudulent retention of the proceeds of the sale of stocks, bars an action subsequently brought against the pur- chaser of the stocks for the purchase-price;^ bringing an action for money had and received, though dismissed before judgment,-^ bars a subsequent action against the same defendant for conversion, on the same state of sBork V. United New Jersey R. Co., 30 Hun (N. Y.) 409; affirmed. & Canal Co., 70 N. J. L. 268, 103 96 N. Y. 18; Ross v. Metropolitan Am. St. Rep. 808, 1 Ann. Cas. 861, Elevated R. Co., 57 N. Y. Super. 64 L. R. A. 836, 57 Atl. 412. Ct. Rep. (25 Jones & S.) 412, 8 Carpenter v. Oswego & S. R. N. Y. Supp. 495; Fox v. Baltimore Co., 24 N. Y. 655; Wagner v. Troy & «• R- Co., 34 W. Va. 466, 12 S. E. Union R. Co., 25 N. Y. 526; Stev- '^^'^■ ens V. Skaneateles R. Co., 42 Misc. ' See, ante, §§ 537, 538. N. Y. 145, 85 N. Y. Supp. 1005. " See, ante, §§ 539, 540. 3 Terry v. Munger, 121 N. Y. 170, loWeisbord v. Chicago & N. W. ^g ^^ g^g g ^_^ ^ ^ 220, R. Co.. 21 Wis. 602. 24 N. E. 272. 11 See discussion and authorities 4Terry v. Buck, 40 App. Div. in note 25 L. R. A. (N. S.) 808-828. (x. y.) 422, 57 N. Y. Supp. 980. 12 Hussner v. Brooklyn City R. r. See, ante, § 541. 762 I ch. IV.] LANDLORD AND TENANT — ELECTION. §56G facts.® And where a father brings an action in contract against the employer of his son for the wages of sucli son, he can not afterwards sue the employer in tort for harboring his son,''^ or for enticing and harboring the son.** §566. Landlord and tenant. In the case of a lease of real property for a term, where the tenant wrongfully abandons the premises before the expiration of the term, the landlord may elect (1) to at once re-enter, and sue for any unpaid rent remaining due at the time of the re-entry;^ or (2) to suffer the premises to remain vacant until the end of the term, and then sue for the entire rental;- or (3) to sublet the premises, for the benefit of the lessor, to reduce the landlord's damages, giving to the lessee notice of his refusal to accept the surrender, where such notice is required,^ and at the end c> Carroll v. Fethers, 102 Wis. 436, 443, 78 N. W. 604. T Hopf V. United States Baking Co., 6 Misc. (N. Y.) 158, 27 N. Y. Siipp. 217. >< Thompson v. Howard, 31 Mich. 309. 1 Higgins V. Street, 19 Okla. 45, 13 L. R. A. (N. S.) 398, 92 Pac. 153; Guffey v. Hukill, 37 W. Va. 49, 26 Am. St. Rep. 901, 8 L. R. A. 759, 11 S. E. 754. See discussion and authorities in note 13 L. R. A. (N. S.) 398. 2 Hig.gins V. Street, 19 Okla. 45, 13 L. R. A. (N. S.) 398, 92 Pac. 153; Welcome v. Hess, 90 Cal. 507, 25 Am. St. 145, 27 Pac. 369. 3 ARK.— Meyer v. Smith, 33 Ark. 627. CAL.— Respini v. Porta, 89 Cal. 464, 23 Am. St. Rep. 488, 26 Pac. 967; Welcome v. Hess, 90 Cal. 507, 25 Am. St. Rep. 145, 27 Pac. 369. ILL.— H u m i s t o n v. Wheeler, 70 111. App. 349. IOWA— Brown v. Cairns, 107 Iowa 727, 77 N. W. 478. KAN.— Brown V. Cairns, 63 Kan. 584, 66 Pac. 639. LA.— Ledoux V. Jones, 20 La. Ann. 539. MD.— Biggs V. Stueler, 93 Md. 100, 48 Atl. 727. MICH.— Stewart v. Sprague, 71 Mich. 50, 38 N. W. 673; Stewart v. Sprague, 76 Mich. 184, 42 N. W. 1088; Scott v. Beecher, 91 Mich. 590, 52 N. W. 20. MISS.— Alsup V. Banks, 48 Miss. 664, 24 Am. St. Rep. 294, 13 L. R. A. 598, 9 So. 895. MO. — Gerhart Realty Co. v. Brecht, 109 Mo. App. 25, 84 S. W. 216. NEB.— Merrill V. Willis, 51 Neb. 162, 70 N. W. 914. N. Y. — Underhill v. Collins, 132 N. Y. 269, 30 N. E. 576, affirming 10 N. Y. Supp. 680. N. C— Scheel- ky V. Koch, 119 N. C. 80, 25 S. .. 713. OKLA.— Higgins v. Street, 19 Okla. 45, 13 L. R. A. (N. S.) 398. 92 Pac. 153. ORE.— B o w e n v. Clarke, 22 Ore. 566, 29 Am. St. Rep. 625, 30 Pac. 430. PA.— Auer V. Ptnn, 99 Pa. St. 370, 44 Am. Rep. 111. Surrender accepted, landlord es- topped from claiming any rent § 566 CODE PLEADING AND PRACTICE. [Pt. II, of the term sue for the difference between the agreed rental in the lease and the rental on the subletting.* But where the landlord insists upon forfeiture under the lease by a re-entry, he loses all right to recover damages for the breach of the contract.^ And where a landlord pro- ceeds at law to enforce a forfeiture of a lease he can not, pending that action, maintain a suit in equity against the tenant on the theory that there is a subsisting lease and tenancy,*^ on the ground that a party may not occupy inconsistent positions.'^ [ Acceleration of maturity of rent provided for in a lease (1) upon the failure to pay any installment of rent when it becomes due, or (2) upon the insolvency of the lessee, and the lease also provides for a re-entry and termina- tion of the lease upon the happening of either of those events, the landlord may elect to take possession and recover the rent due at the time of such re-entry ; but if he re-enters he can not recover the rent for tlie unex- pired term of the lease.^ from original tenant further than Rep. 625, 30 Pac. 430. TEX. — that due at the time of the accep- Racke v. Anheuser-Busch Brewing tance of surrender.— Welcome v. Assoc, 17 Tex. Civ. App. 167, 42 Hess, 90 Cal. 507, 514, 25 Am. St. S. W. 774. Rep. 145, 27 Pac. 369. See note 13 L. R. A. (N. S.) 398. 4 CAL.— Bell, In re, 85 Cal. 119, 5 underhill v. Saratoga & W. R. 24 Pac. 633; Respini v. Porter, 89 q^^ 20 Barb. (N. Y) 467. Cal. 464, 23 Am. St. Rep. 488, 26 ^^^^^ ^ ^^^^^^^ ^3 ^ y. 153: Pac. 967; Welcome v. Hess, 90 Cal. ^^^^^^ ^^ Duryee, 90 N. Y. 599, 12 507, 25 Am. St. Rep. 145, 27 Pac. ^^^ ^^ ^ ^3^ reversing 24 Hun 369. NEB.— Merrill v. Willis, 51 g^^. j^^^^^^ ^ Hepburn, 5 N. Y. Neb. 162, 70 N. W. 914. N. Y.— g^^^^ ^^ ^^^ ^3 g^^^^ ) geg, 3 Winant v. Hines, 14 Daly 187, par- ^^^^ ^^^ ^g^^ 5 ^^^ pj. ^gg. tially overrules Gray v. Kaufman ^ ^^^^ ^^^^^^^^^ ^^^^ Dairv & Ice Cream Co., 162 N. Y. 388. 76 Am. St. Rep. 327, 49 L. R. A. « Miller Brothers Grocery Co., 580 56 N E 903. OHIO— Kirk- In re, 135 C. C. A. 521, L. R. A. land V. Wolf, 7 Ohio Dec. Repr. 1916B, 1099, 219 Fed. 851. 436. OKLA.— Higgins v. Street, 19 As to whether provision accel- Okla. 45, 13 L. R. A. (N. S.) 398, erating maturity of rent is an al- 92 Pac' 153. ORE.— Bowen v. ternative or a concurrent remedy, Clarke, 22 Ore. 566, 29 Am. St. see note L. R. A. 1916B, 1101. 764 ell. IV.] LAW AXD EQUITY — ELECTION. § 5G7 § 5C7. Law and equity. It is a well-settled prin- ciple of law that a remedy at law and a remedy in equity are usually alternative and conflicting remedies;^ hence, a person having a legal remedy and also an equitable remedy, by pursuing his legal remedy he may estop him- self from subsequently, in equity, pursuing a fund which, but for his legal action, he might have had impressed as a trust fund for his benefit.- In the case of the sale of a business and the good will thereof, under an agreemojit not to engage in the same business and compete A\itli the purchaser, on breach of this agreement, the purchaser may (1) seek an injunction in equity, or (2) bring an action at law for damages,^ but he can not do both.^ Where an action at law" is brought to enforce specific performance of an incomplete contract, and a judgment on the merits is rendered in favor of the defendant, tlio plaintiff will be estopped by his election of remedies to thereafter bring an action in equity, asking for the reformation of the contract and its specific enforcement as reformed,^ because two such actions could not procoe Am. Rep. 655, affirming 12 Hun 4 See, ante, § 544; also note Ann. 460. Cas. 1914B, 1218. 9 Hanley v. Kelly, 62 Cal. 135; 5 Thomas v. Joslin, 36 Minn. 1, Capital City Bank v. Hilson, 64 1 Am. St. Rep. 624, 29 N. W. 344. Fla. 206, Ann. Cas. 1914B, 1211. 60 6 Id. So. 189; .Tordan Co., W. A., v. 7 See, ante, § 538. Sperry, 141 Iowa 225. 119 N. \V. 8 Washburn v. Great Western G92; Thwing v. Great Western Ins. 7G5 ^568 CODE PLEADING AND PRACTICE. [I't.TI, §568. Master and servant. Under the old rul( of law, a servant or employee engaged for a specific term, which was an entire one, and not severable, if the servant or employee be rightfully discharged before the end of the period of his employment or hiring, for good cause, he was not entitled to recover for his services ren- dered,^ pro rata or otherwise,- in assumpsit or in any form of action;^ but where the emploj-ment was for a stated period, and the parties disagreed and separated before the period expired, it has been said that there could be a recovery for the time actually served at tlie rate for the term.* Where the contract for a definite period was severable, and not entire,— e. g., the hiring Co., Ill Mass. 93; Washburn v. Great Western Ins. Co., 114 Mass. 175; Lansing v. Commercial Union Ins. Co., 4 Neb. Unof. 140, 93 N. W. 756; Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498, 33 Am. Rep. 655, affirming 12 Hun 460; Rehfield v. Winters, 62 Ore. 299, 125 Pac. 289; State ex rel. Dorsett v. Moss, 36 Utah 362, 103 Pac. 969; Rowell v. Smith, 123 Wis. 510, 3 Ann. Cas, 773, 102 N. W. 1, reviewing the cases and pointing out that there has been a misapprehension in the cases and a failure to distinguish between the doctrines of res ad- judicata and estoppel by election. See, ante, § 544 and note Ann. Cas. 1914B, 1218. 1 See: IOWA— Steele v. Crab- tree, 130 Iowa 317, 106 N. W. 753. KAN. — Spaulding v. Pepper, 73 Kan. 644, 646, 85 Pac. 754. MINN. —Peterson v. Mayer, 46 Minn. 468, 13 L. R. A. 72, 49 N. W. 245; Mc- Garth v. Cannon, 55 Minn. 457, 57 N. W. 150; Von Heyne v. Tomp- kins, 89 Minn. 81, 93 N. W. 907; Von Heyne v. Tompkins, 89 Minn. 77, 5 L. R. A. (N. S.) 524, 93 N. W. 901. MO. — Paul V. Minneapolis Threshing Machine Co., 87 Mo. App. 654. N. J. — Allen v. Ayles- worth, 58 N. J. Eq. 349, 44 Atl. 178. N. Y.— Huntington v. Claflin, 38 N. Y. 182, 6 Transc. App. 168, af- firming 23 N. Y. Super. Ct. Rep. (10 Bosw.) 262. PA.— Williams v. Eldridge, 9 Kulp 566. TEX.— Hohl V. Kellogg, 42 Tex. Civ. App. 636, 639, 94 S. W. 389. ENG.— Atkin v. Acton, 4 Cor. & P. 208, 19 Eng. C. L. 478; Sherman v. Bennett, 1 Moo. & M. 489, 22 Eng. C. L. 489: Boston Deep Sea Fishing & Ice Co. V. Ansell, U R. 39 Ch. Div. 339. See note 5 L. R. A. (X. S.) 524. 2 Voelkel v. Banner Brewing Co., 9 Ohio Cir. Ct. Rep. 318; Turner v. Robinson. 5 Barn & Ad. 789, 27 Eng. C. L. 33, 110 Eng. Repr. 982; Spain V. Arnott, 2 Stark. 256, 3 Eng. C. L. 400. 3 Lane v. Phillips. 51 N. C. (6 .lones L.) 455; Pullen v. Green, 75 N. C. 215; Lilley v. Elwin, 11 Ad. & E. N. S. (11 Q. B.) 742, 63 Eng. C. L. 742. 4 Braiin v. Weill, HI La. 973, 36 So. 87; McClure v. Pyatt, 4 McC. L. (S. C.) 26. 766 IV.] MASTER AND SERVANT ELECTION. §568 being for a year at a stated gross sum payable monthly, — and the servant or employee was discharged for good cause, he could recover his salary or wages for the time actually served, by the month,^ because the salary or Avages agreed upon became a vested debt at the end of each month f but he could not recover for a part of a month, that is, for the time he had put in from the last pay-day until the date of the discharge.'^ The prevailing American rule modifies this doctrine, and is to the effect that a servant or employee engaged for a term, and discharged for good and lawful cause before the end of that term, even though the contract is entire and not severable, is entitled to recover his w^ages or salary for the labor or services actually performed up to the time of his discharge,^ subject to the right of 5 Hariston v. Sale, 14 Miss. (6 Smed. & M.) 634; Robinson v. Saunders, 24 Miss. 391; Peniston V. Huber Co., John Y., 196 Pa. St. 580, 46 Atl. 934; Button v. Thomp- son, L. R. 4 C. P. 330. 6 See Philadelphia, W. & B. R. Co. V. Howard, 54 U. S. (13 How.) 307, 14 L. Ed. 157; Button v. Thompson, L. R. 4 C. P. 330. T Hartman v. Rogers, 69 Cal. 643, 646, 11 Pac. 581; Beach v. Mullin, 34 N. J. L. (5 Vr.) 343; Voelckel v. Banner Brewing Co., 9 Ohio Cir. Ct. Rep. 318; Ridgway v. Hunger- ford Market Co., 3 Ad. & El. 171, 30 Eng. C. L. 97, 111 Eng. Repr. 378. Compare: McWilliams v. Elder, 52 La. Ann. 995, 27 So. 352; Her- cum V. Stericker, 10 Mas. & W. 553. 8 See: ILL. — Hoffman v. World's Columbian Exposition, 55 111. App. 290. KY. — Foster v. Watson, 55 Ky. (16 B. Mon.) 377. LA.— Lam- bert V, King, 12 La. Ann. 662: 7 McWilliams v. Elder, 52 La. Ann. 995, 27 So. 352; Braun v. Weill, 111 La. 973, 36 So. 87. MD.— Mallonee V. Duff, 72 Md. 283, 19 Atl. 708. ME. — Lawrence v. Gullifer, 38 Me. 532. MISS.— Hariston v. Sale, 14 Miss. (6 Smed. & M.) 634. MO.— Sugg V. Blow, 17 Mo. 359; Anstee V. Ober, 26 Mo. App. 665. S. C— Byrd v. Boyd, 4 McC. L. (S. C.) 246, 17 Am. Dec. 740; Eaken v. Harrison, 4 McC. L. 249. TENN.— Jones V. Jones, 32 Tenn. (2 Swan) 605; Children of Israel v. Peres. 42 Tenn. (2 Coldw.) 605. TEX.— Meade v. Rutledge, 11 Tex. 44; Peacock v. Coltrane, 44 Tex. Civ. App. 530, 533, 99 S. W. 107. WIS.— Hildebrand v. American Fine Art Co., 109 Wis. 171, 53 L. R. A. 826. 85 N. W. 268; Graf v. Laev, 120 Wis. 177, 182, 97 N. W. 898. See note in 5 L. R. A. (N. S.) 527-531. Laid off and then discharged, where there was no employment for a definite time, servant or em- G7 §568 CODE PLEADING AND PRACTICE. [Ft. II, the master or employer to recoupement for damages,^ except in those cases in which the servant or employc3 wilfully conducts himself in such a manner as to render his discharge necessary.^" Wrongful discharge by master or employer of a serv- ant or employee hired for a definite term at a stated sal- ary or wage, such servant or employee may (1) treat the contract as in full force and bring an action for damages for the breach thereof by his wrongful discharge, or (2) may sue upon a quantum meruit for the services actually rendered.^ ^ Suing upon a quantum meruit for salary or wages earned, the servant or employee makes an election of remedies which bars him from thereafter maintaining an action for breach of contract.^^ But a wrongfully discharged servant or employee can not maintain an action for unearned salary or wages, notwithstanding the fact that he held himself in readiness throughout the term to perform his part of the contract, his only remedy is for damages for breach of the contract,^^ although the contrary seems to have been held.^* ployee is entitled to pay for the time he was laid off. — Tilford v. Fairfield Mfg. Co., 72 Iowa 60, 33 N. W. 364. 9 Hildebrand v. American Fine Art Co., 109 Wis. 171, 53 L. R. A. 826, 85 N. W. 268. 10 Lawrence v. Gullifer, 38 Me. 532. 11 Hartman v. Rogers, 69 Cal. 643, 11 Pac. 518; Brown v. Crown Gold Milling Co., 150 Cal. 376, 384, 89 Pac. 86; Keedy v. Long, 71 Md. 385, 5 L. R. A. 759, 18 Atl. 704. Contract of employment may af- fect the rule; e. g., where it is stipulated payment shall be made at the end of the term of employ- ment, and that the time of pay- ment shall not be changed in case of breach or rescission of contract; in which case action can not hz maintained either for breach of contract or upon quantum meruit until the end of the term of em- ployment. — Knutson v. Knapp, 35 Wis. 86. 12 Keedy v. Long, 71 Md. 385, 5 L. R. A. 759, 18 Atl. 704. 13 Olmstead v. Bach, 78 Md. 132, 44 Am. St. Rep. 273, 22 L. R. A. 74, 27 Atl. 501, reversing 25 Atl. 343. 14 Pritchard v. Martin, 27 Miss. 305. As to death from negligence of servant or employee, see, ante, §§ 561, 562. 763 i eh. IV,] MORTGAGE AND NOTE — ELECTION. § 569 § 569. MoRTGATE AND NOTE. Under statutory pro- vision in this country the general rule is that a person holding a debt evidenced by a bond or note, and secured by a mortgage, has his election of remedies (1) to bring an action at law on the bond or note, or (2) to file a suit in equity to foreclose the mortgage, but that he can not pursue both remedies at the same time;^ although in the absence of statutory provision the mortgagee's remedies against the person and property of his debtor, and in equity for the foreclosure of the mortgage, are concur- rent remedies- which may be pursued at the same time or successively.^ Thus, the general rule in this country is that a mortgagee proceeding in equity to foreclose his mortgage, and asking that a deficiency judgment be awarded for any balance left unpaid after applying the proceeds of the sale of the property, can not maintain an action at law on the bond or note secured by the mort- gage.'' But a mortgagee selling the land on mortgage foreclosure, and buying in the property at the sale, by attempting to defend the title thus acquired, is not bound as by an election of remedies barring him from claiming tlie right of subrogation to the rights of earlier securi- ties.^ And where the statute prohibits the taking of a deficiency judgment on the foreclosure of the mortgage, this mil not prevent a suit at law on the note, in which 1 See notes 73 Am. St. Rep. 559, See authorities cited in note 18 4 L. R. A. 205. Eng. Rul. Gas. 440. As to legal and equitable reme- -^ Anderson v. Plulgram, 30 S. C. dies in case of a note and mort- ^^^' ^^ ^m. St. Rep. 917, 4 L. R. A. gage, see Pomeroy's Eq. Jurisp. ^0^' ^ S. E. 587. See Shields v. T.fv, \, ^ s -..oo Riopelle, 63 Mich. 458. 30 N. W. 90. (4th ed.), § 1183. . . ^ ^ ^ Suing on a note secured bymort- 2 See, supra, §§539, 540. gggg ^^1 likewise prevent the 3 Colby V. McClintock, 68 N. H. bringing of a suit in equity to 176, 73 Am. St. Rep. 557, 40 Atl. foreclose the mortgage.— Bacon v. 397. See Ely v. Ely, 72 Mass. (6 Raybould, 4 Utah 357, 10 Pac. 481, Gray) 439; Lockhart v. Hardy, 9 11 Pac. 510. Beav. 349, 50 Eng. Repr. 378, 18 5 Union Mortgage & T. Co. v. Eng. Rul. Gas. 434; Burnell v. Mar- Peters, 71 Miss. 1058, 30 L. R. A. tin, 2 Doug. 417. 829, IS So. 497. I Code PI. and Pr. — 49 ijQC) §§ 570, 571 CODE PLEADING AND PRACTICE. [Pt. II, judgment for the full amount may be given.* But a mortgagee wlio takes, as additional security for the debt, the interest of the mortgagor in an existing policy of fire insurance waives his equitable claim to the proceeds of the insurance policy by electing to sue upon the note, and making the insurance company a garnishee.'^ § 570. Passenger injured through negligent or WRONGFUL ACT.^ It is the public duty of a common carrier to carry, either goods, live stock or passengers, safely; and where a common carrier contracts to transport a passenger safely, if this contract is broken and the pass- enger is injured through the negligent or wrongful act of the carrier, or of its agents or servants, the injured passenger may elect (1) to sue for damages for breach of contract,^ or (2) proceed as for a tort for the breach of a public duty, and recover according to the principles governing that class of actions.^ (^ 57X. Pretermitted children. By statutory pro- visions in many, if not most, of the states, where a child is born after the execution of a will, who is not provided for therein and not intentionally excluded therefrom, this fact does not invalidate the will;^ but such after-born 6 Page V. Ford, 65 Ore. 450, Ann. 538, 117 N. W. 762; Pozzi v. Ship- Cas. 1915A, 1048, 45 L. R. A. (N. S.) ton, 8 Ad. & El. 963, 35 Eng. C. L. 247, 131 Pac. 1013. 931, 112 Eng. Repr. 1106; Brother- TFirst Nat. Bank v. Neilsen, 92 ton v. Wood, 3 Brod. & Bing. 54, Wash. 84, 159 Pac. 113. 7 Eng. C. L. 602; Govett v. Rod- 1 As to injury resulting in death nidge, 3 East 62, 6 Rev. Rep, 539, of passenger from negligent or 102 Eng. Repr. 520; Marshall v. wrongful act of carrier, or of its York, N. C. & B. R. Co., 2 J. Scott agents or servants, see, ante, (11 C. B.) 655, 73 Eng. C. L. 655; §§ 561, 562. Foulkes v. Metropolitan Dist. R. 2 McMurtry V. Kentucky Cent. R. Co., L. R. 4 C. P. Div. 267, 30 Co., 84 Ky. 462. 1 S. W. 815; Balti- Moak's Eng. Rep. 536, L. R. 5 C. P. more City Passenger R. Co. v. Div. 150; 30 Moak's Eng. Rep. 740; Kemp, 61 Md. 619, 48 Am. Rep. Austin v. Great Western R. Co., 134 ' L. R. 2 Q. B. 442. See, also, ante, § 553. See, also, ante, § 556. 3 Id.; see Owens Bros. v. Chi- i Lowery v. Hawker, 22 N. D. cago, R. I. & P. R. Co, 139 Iowa 318, 37 L. R. A. (N. S.) 1143, 133 770 eh. IV.] PRETERMITTED CHILDREX — REMEDIES. § 571 child will take the same share in the estate that he would have taken had the testator died intestate,- to be assigned to him as provided by law in the case of intestate estates.'' The same rule applies in the case of any child of the tes- tator, legitimate or illegitimate,^ or of any child of a deceased child of the testator, omitted by accident or mistake,^ or not provided for, and not intentionally ex- cluded; and the accident or mistake need not appear on the face of the will itself, is held in many of the cases,® the presumption being that the omission was uninten- tional,'^ although there seems to be adverse holdings, due to the peculiarities of statutory provisions,^ and some cases flat-footedly hold that the burden of showing that the omission was not intentional is on the pretermitted heir.'-' Remedies of pretermitted heir are usually provided by the statute, and where so provided is thought to be ex- clusive and must be pursued. There are not many adjudicated cases dealing with the subject of the rem- N. W. 918. See Church's Probate 47 Mass. (6 Mete.) 400, 39 Am. Law and Practice, vol. 2, p. 1157. Dec. 736; Converse v. Wohs, 86 2 See Alexander on Wills, vol. 2, Mass. (4 Allen) 512; Wilder v. §630. Church's Probate Law and Thayer, 97 Mass. 439; Ramsdill v. Practice, vol. 2, p. 1157. Wentworth, 101 Mass. 125, 106 3 Holloman v. Copeland, 10 Ga. Mass. 320; Buckley v. Gerard, 123 79; Waterman v. Hawkins, 63 Me. Mass. 8; Hurley v. O'Sullivan, 137 156; Bowen v. Hoxie, 137 Mass. Mass. 86; Case v. Young, 3 Minn. 527; Evans v. Anderson, 15 Ohio 209; Gifford v. Dyer, 2 R. I. 99, St. 324; Willard's Estate, 68 Pa. 57 Am. Dec. 708; Newman v. St. 327; Potter v. Brown, 11 R, I. Waterman, 63 Wis. 612, 58 Am. 232; Talbird v. Verdier, 1 Disans. Rep. 310, 23 N. W. 696. (S. C.) 592; Busee v. Stiles, 22 r. Id. Wis. 120; Newman v. Waterman, " See Alexander on Wills, vol. 2, 63 Wis. 612, 58 Am. Rep. 310, 23 § 636. N. W. 696; Chicago, B. & Q. R. 8 See Bush v. Lindsey, 44 Cal. Co. V. Wasserman, 22 Fed. 872. 121; Wetherale v. Harris, 51 Mo. -t See Church's Probate Law and 65; Gifford v. Dyer, 2 R. I. 99, 57 Practice, vol. 1, p. 58. Am. Dec. 708. '. Pearson v. Pearson, 46 Cal. ;• Brown v. Brown, 71 Neb. 207, 609; Doane v. Lake, 32 Me. 268, 52 115 Am. St. Rep. 568, 98 N. W. Am. Dec. 654; Wilson v. Foskit, 721. 771 §572 CODE PLEADING AND PRACTICE. [Pt.ll, edies to be pursued by a pretermitted heir; yet space will not permit of their discussion in detail in this place ; and we must be content with a reference to where they may be found collected. ^^ §572. Principal and agent. It is a general prin- ciple of law that when an agent of an undisclosed prin- cipal deals with a third person without disclosing his agency, he becomes personally liable on the contract;^ and this is true also where he discloses the fact that he 10 Cases as to remedy of preter- mitted heirs are fully collected and discussed in note in 37 L. R.A. (N. S.) 1143. 1 CAL. — Bradford v. Woodworth, 108 Cal. 684, 41 Pac. 797; Jewell V. Colonial Theater Co., 12 Cal. App. 681. COLO. — Heaton v. Myers, 4 Colo. 59; Mackey v. Briggs, 16 Colo. 143, 26 Pac. 131; Haviland v. Mayfield, 38 Colo. 185, 88 Pac. 148. CONN. — Jones v. Aetna Ins. Co., 14 Conn. 501; Hall V. Breandbury, 40 Conn. 32. IDAHO — Whitney v. Woodmansee, 15 Idaho 735, 99 Pac. 968. ILL.— Wheeler v. Reed, 36 111. 81. KAN. — Wolfley V. Rising, 8 Kan. 297. KY. — Rushing v. Sebree, 75 Ky. (12 Bush) 198. LA.— Bedford v. Jacobs, 4 Mart. N. S. (La.) 530; Sere v. Faures, 15 La. Ann. 189. ME.— Upton V. Gray, 2 Me. (2 Greenl.) 373; Keen v. Sprague, 3 Me. (3 Greenl.) 77. MD.— York County Bank v. Stein, 24 Md. 447. MASS. — Stackpole v. Arnold, 11 Mass. 27; James v. Bixby, 11 Mass. 34; French v. Price, 41 Mass. (24 Pick.) 13; Raymond v. Crown & E. Mills, 43 Mass. (2 Mete,) 319; Paige V. Stone, 51 Mass. (10 Mete.) 160, 43 Am. Dec. 420; Southard v. Sturtevant, 109 Mass. 390; Welsch V. Goodwin, 123 Mass. 71, 25 Am. Rep. 24; Brigham v. Herrick, 173 Mass. 460, 53 N. E. 906. MO.— McClellan v. Parker, 27 Mo. 162; Einstein v. Holt, 52 Mo. 340. N. M. —Luna V. Mohr, 3 N. M. 63, 1 Pac. 860. N. Y. — Corlies v. Cummings, 6 Cow. 181; Mauri v. Heffernan, 13 Johns. 58; Rathbone v. Bud- long, 15 Johns. 1; McGraw v. God- frey, 65 N. Y. 64, 16 Abb. Pr. N. S. 358, affirming 14 Abb. Pr. N. S. 397; Baltzen v. Nicolay, 53 N. Y. 467, reversing 35 N. Y. Super. Ct. Rep. (2 Jones & S.) 203; Newman V. Greeff, 101 N. Y. 663, 5 N. E. 335; De Remer v. Brown, 165 N. Y. 410, 59 N. E. 129, affirming 36 App. Div. 634, 55 N. Y. Supp. 367. PA.— Meyer v. Barker, 6 Binn. 228; Par- ker V. Donaldson, 2 Watts & S. 9; Youghiogheny Iron & Coal Co. v. Smith, 66 Pa. St. 340. S. C— Long V. McKissick, 50 S. C. 218, 27 S. E. 636. VT.— Baldwin v. Leonard, 39 Vt. 260. WASH. — Gordon v. Brin- ton, 55 Wash. 568, 133 Am. St. Rep. 1038, 104 Pac. 832. FED.— Farrell V. Campbell, 3 Bened. 8, Fed. Cas. No. 4681; Tiernan v. Andrews, 3 Wash. C. C. 564, 567, Fed. Cas. No. 14026; Purdom Naval Stores Co. V. Western Union Tel. Co., 153 Fed. 327. See note 34 L. R. A. (N. S.) 518. 772 •h. IV.] PRINCIPAL AND AGENT — ELECTION. §572 is acting as agent for another without disclosing the identity of such other person for whom he is acting.- When the person with whom the agent thus deals dis- covers the identity of the undisclosed principal, he has an election (1) to sue the agent or (2) sue the undis- closed principal, and pursue such suit to judgment; but he can not hold both the agent and his principal, and on election to pursue the one is a bar to an action against the other,^ in those cases in which the plaintiff acts with full knowledge of the facts in the case, but not otherwise,^ li See: ALA. — Chestnut v. Tyson, 105 Ala. 149, 53 Am. St. Rep. 101, 16 So. 723. CONN.— Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Belden v. Seymour, 8 Conn. 19. FLA. — Wilson v. Frldenberg, 22 Fla. 314. ILL.— Mason v. Cald- well, 10 111. 196, 48 Am. Dec. 330. IND. — Merrill v. Wilson, 6 Ind. 426; Hayes v. Shirk, 167 Ind. 569, 78 N. E. 653; De Coudres v. Union Trust Co., 25 Ind. App. 271, 81 Am. St. Rep. 95, 58 N. E. 90. KAN.— Klopp V. Moore, 6 Kan. 27. KY.— Scott V. Messick, 20 Ky. (4 T. B. Mon.) 535; Wilkins v. Duncan, 70 Ky. (2 Litt.) 168. ME.— Keen v. Spragur, 3 Me. (3 Greenl.) 77. MASS. — Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83; Ray- mond V. Crown & E. Mills, 43 Mass. (2 Mete.) 319; Winsor v. Griggs, 59 Mass. (5 Cush.) 210; Cabot Bank v. Morton, 70 Mass. (4 Gray) 156; Wilder v. Cowles, 100 Mass. 487. MISS.— Buckles v. Cunningham, 14 Miss. (6 Smed. & M.) 358. MO. — Murphy v. Price, 48 Mo. 247. MONT.— Taylor v. Holter, 1 Mont. 688. NEB.— Bridges V. Bidwell, 20 Neb. 185, 29 N. W. 302. NEV.— Painter v. Kaiser, 27 Nev. 421, 103 Am. St. Rep. 772, 10 Ann. Cas. 765, 65 L. R. A. 672, 76 Pac. 747; Esden v. Kaiser, 27 Nev. 434, 76 Pac. 1134. N. Y.— Cunning- ham V. Soules, 7 Wend. 106; Bee- bee V. Robert, 12 Wend. 413, 27 Am. Dec. 132; Canal Bank v. Bank of Albany, 1 Hill 287; Taintor v. Pendergast, 3 Hill 72, 38 Am. Dec. 618. N. C— Godley v. Taylor, 14 N. C. (3 Dev. L.) 178. PA.-^Allen V. Roberts, 11 Serg. & R. 362. S. C. — Bacon v. Sondley, 3 Strobh. L. 542, 51 Am. Dec. 646; Edings v. Brown, 1 Rich. L. 255. TENN.— Jordan v. Trice, 9 Tenn. (Yerg.) 479. VT.— Higley v. Smith, 1 D. Chip. 409, 12 Am. Dec. 701; Royce V. Allen, 28 Vt. 234; Prouty v. Mather, 49 Vt. 415. WIS.— North V. Henneberry, 44 Wis. 306. 3 Gay V. Wren, 109 Minn. 101, 26 L. R. A. (N. S.) 742, 123 N. W. 295; Murphy v. Hutchinson, 93 Miss. 643, 21 L. R. A. (N. S.) 785, 48 So. 178. See notes 2 L. R. A. 812, 21 L. R. A. (N. S.) 786; 26 L. R. A. (N. S.) 742. 4 Steele-Smith Grocery Co. v. Potthast, 109 Iowa 413, 80 N. W. 517; Madden v. Louisville, N. O. & T. R. Co., 66 Miss. 258, 6 So. 181; Murphy v. Hutchinson, 93 Miss. 643, 21 L. R. A. (N. S.) 785, 48 So. 178; Remmel v. Townsend, 773 § 572 CODE PLEADING AND PRACTICE. [Pt. II, and acts with a manifest intention to elect between the two.^ Where the action is commenced against the agent and the undisclosed principal jointly, as it may properly be in some cases, on motion the plaintiff will be compelled to elect against which he will proceed;*^ but where an agent and principal thus sued both answer and both deny (1) the contract and (2) the agency, the plaintiff should not be required to elect against which he will proceed until the evidence discloses (1) whether there was a contract Avith the agent, and (2) whether the relation of principal and agent existed between the parties^ Agent acting without authority in the premises in en- tering into a contract for another, the third party with whom the contract is entered into may have various remedies: (1) To sue on the contract itself, against the agent as principal,^ although in many jurisdictions an agent presuming to act without authority is no longer held liable as a principal ;'' (2) may maintain an action for money had and received, where the agent received 83 Hun (N. Y.) 353, 31 N. Y. Supp. Supp. 180; Kennedy v. Stone- 984. house, 13 N. D. 232, 3 Ann. Cas. 5 Laguna Valley Co. V. Fitch, 121 217, 100 N. W. 258; McArthur v. 111. App. 607. Ladd, 5 Ohio 514; Edgings v. 6 Gay V. Wren, 109 Minn. 101, 26 Brown, 1 Rich. L. (S. C.) 255. L. R. A. (N. S.) 742, 123 N. W. 295. See note 34 L. R. A. (N. S.) 7 Gay V. Wren, 109 Minn. 101, 26 518. L. R. A. (N. S.) 742, 123 N. W. 295. 9 See, among other cases. Wal- s See Ormsby v. Kendall, 2 Ark. lace v. Bently, 77 Cal. 19, 11 Am. 338; Shelton v. Darling, 2 Conn. St. Rep. 231, 18 Pac. 788; Farmers' 435; Klopp v. Moore, 6 Kan. 27; Co-operative Trust Co. v. Floyd, 47 Rollins V. Phelps, 5 Minn. 403; Ohio St. 525, 21 Am. St. Rep. 846, Brown v. Johnson, 20 Miss. (12 12 L. R. A. 346, 26 N. E. 110; An- Smed. & M.) 398, 51 Am. Dec. 118; derson v. Adams, 43 Ore. 621, 74 White V. Skinner, 13 Johns. (N. Y.) Pac. 215; Roberts v. Tattle, 36 367, 7 Am. Dec. 381; Stone v. Utah 634, 105 Pac. 916; Oliver v. Wood, 7 Cow. (N. Y.) 453, 17 Am. Morametz, 97 Wis. 332, 27 N. W. Dec. 529; Rossiter v. Rossiter, 8 877; Kent v. Addicks, 60 C. C. A. Wend. (N. Y.) 494, 24 Am. Dec. 660. 126 Fed. 112. 462; Taylor v. Nostrand. 134 N. Y. See, also, note 34 L. R. A. (N. S.) 108, 31 N. E. 246, affirming 12 N. Y. 530. 774 ch. IV.] EXEMPTION — PARTICULAE OBLIGATION. §573 any money ;^° (3) bring an action in assumpsit, upon tlie express or implied warranty of authority j^^ and (4) may maintain an action in tort, where there was actual fraud committed,^- and some of the cases hold that the action may be maintained irrespective of any fraud actually committed. ^^ §573. Property exempt from debts — Particular OBLIGATION. In thosc cases in which property is exempt from general debts under the statute, but liable for par- ticular obligations, — e. g., purchase-price of the land,, work and labor and material in the construction and^' repair, or where the liability attached before the property* became exempt,^ — the holder of the particular obligation' Pac. 916; Haupt v. Vint, 68 W. Va.f 657, 34 L. R. A. (N. S.) 518; Dexter" Sav. Bank v. Friend, 90 Fed. 705; Kent V. Addicks, 60 C. C. A. 660, 126 Fed. 112. i2 0gden V. Raymond, 22 Conn. 379, 58 Am. Dec. 429; Benjamin v. Mattler, 3 Colo. App. 227, 32 Pac. 837; Groeltz v. Armstrong, 125 Iowa 39, 99 N. W. 128; Abbey v. Chase, 60 Mass. (6 Cush.) 54; Bartlett v. Tucker, 104 Mass. 336, 6 Am. Rep. 240; Skaaraas v. Fin- negan, 32 Minn. 107, 19 N. W. 729; Cole V. O'Brien, 34 Neb. 68, 33 Am. St. Rep. 616, 51 N. W. 316; Dung V. Parker, 52 N. Y. 494, re- versing 3 Daly 89; Noe v. Gregory, 7 Daly (N. Y.) 283; Campbell v. Muller, 19 Misc. (N. Y.) 189, 43 N. Y. Supp. 235; Delius v. Caw- thorn, 13 N. C. (2 Div. L.) 90; Clark V. Foster. 8 Vt. 98; Oliver v. Morawetz, 97 Wis. 332, 72 N. W. 877. isConant v. Alvord, 166 Mass. 311, 44 N. E. 250. I Gregory Co. v. Cale, 115 Minn. 508, 37 L. R. A. (N. S.) 156, 133 N. W. 75. 10 Harper v. Little, 2 Me. 14, 11 Am. Dec. 25; Jefts v. York, 64 Mass. (10 Cush.) 392; Delius v. Cawthorn, 13 N. C. (2 Div. L.) 90; Russell V. Koonce, 104 N. C. 237, 10 S. E. 256. 11 Dale V. Donaldson Lumber Co., 48 Ark. 188, 3 Am. St. Rep. 224, 2 S. W. Rep. 703; Groeltz v. Armstrong, 125 Iowa 39, 99 N. W. 128; Conant v. Alvord, 166 Mass. 315, 44 N. E. 250; White v. Mad- ison, 26 N. Y. 117, 26 How. Pr. 418; Baltzen v. Nicolay, 53 N. Y. 467; Simmons v. More, 100 N. Y. 140, 2 N. E. 640; Taylor v. Nos- trand, 134 N. Y. 108, 31 N. E. 246, affirming 12 N. Y. Supp, 180; New York Bank Note Co. v. McKeige, 31 App. Div. (N. Y.) 188, 52 N. Y. Supp. 597; Noe v, Gregory, 7 Daly (N. Y.) 283; Miller v. Reynolds, 92 Hun (N. Y.) 400, 36 N. Y. Supp. 660; Campbell v. Muller, 19 Misc. (N. Y.) 192, 43 N. Y. Supp. 233, 1 Am. Neg. Rep. 326; Farmers' Co- operative Trust Co. v. Floyd, 47 Ohio St. 525, 21 Am. St. Rep. 846, 12 L. R. A. 346, 26 N. E. 110; Roberts v. Tuttle, 36 Utah 634, 105 775 § 574 CODE PLEADING AND PRACTICE. [Pt. II, for which the property is liable, notwithstanding the gen- eral exemption, has an election of remedies : (1) In equity, setting forth in his complaint all the facts, and demanding a lien upon the particular property described in the com- plaint; (2) he may proceed by attachment; or (3) he may proceed by an ordinary action for the recovery of money, and levy an execution on the property under the judgment obtained.^ § 574. Purchaser at judicial, or execution sale. A bona fide purchaser at a judicial or execution sale, — e. g., on foreclosure of a mortgage,^ — submits himself pro hac vice^ to the jurisdiction of the court,^ and when he relies upon the regularity of the proceedings, or the cor- rectness of a judgment which falsely recites that all the defendants were duly served with process, on learning of the infirmities which render the sale invalid, or on the sale being set aside because of such infirmities, the pur- chaser has open to him various remedies: (1) To be subrogated to the rights and interests of the judgment creditor, when the purchase money is used to pay the debt ;^ and where subrogation would afford an inadequate 2 Id. See Bills v. Mason, 42 cover the rent he was compelled to Iowa 329; Langevin v. Bloom, 69 pay; his remedy is by application Minn. 22, 65 Am. St. Rep. 546, 71 in the foreclosure suit. — Stokes v. N. W. 697; Nickerson v. Crawford, Hoffman House, 167 N. Y. 554, 53 74 Minn. 366, 73 Am. St. Rep. 354, L. R. A. 870, 6 N. E. 667, affirming 77 N. W. 292; Durham v. Bostick, 46 App. Div. 120, 61 N. Y. Supp. 72 N. C. 357; Douglas v. Gregg, 66 821. Tenn. (& Baxt.) 384. 2 Bl. Com. 243. See, also, notes 12 Am. Dec. 263, 3 Boggs v. Fowler, 16 Cal. 560, 264; 28 Am. Dec. 199-202; 37 76 Am. Dec. 561; McCarthy v. L. R. A. (N. S.) 156-159. State Bank of Townsend, 54 Mont. 1 McCarthy v. State Bank of 319, 170 Pac. 15; Andrews v. Townsend, 54 Mont. 319, 170 Pac. O'Mahoney, 112 N. Y. 567, 20 N. E. 15. 374, affirming 1 N. Y. Supp. 750. Purchaser of leasehold at fore- -i See: ARK. — Meher v. Cole, 50 closure sale who, by the terms, Ark. 361, 7 Am. St. Rep. 101, 7 was to receive the same fee from S. W. 451; Bond v. Montgomery, unpaid rent, can not maintain an 56 Ark. 563, 35 Am. St. Rep. 119, independent action at law to re- 20 S. W. 525. ILL. — McHany v. 776 ch. IV.] PURCHASER AT JUDICIAL, ETC., SALE. §574 remedy, (2) an action for reimbursement;^ (3) an action against the debtor for the amount of money paid as the purchase-price, together with interest and necessary dis- bursements for taxes I** (4) an action against the creditor for the amount of money paid as the purchase-price, together with interest thereon and necessary disburse- ments for taxes;' (5) an action against the sheriff or other officer making the sale, — where the sheriff or other officer is guilty of a breach of any of the duties connected with his office in the matter of conducting the sale, which Schenk, 88 111. 357; St. Louis & S. Coal & M i n. Co. v. Sandoval Coal & Min. Co., 116 111. 170, 5 N. E. 370; Bruschke v. Wright, 166 111. 183, 57 Am, St. Rep. 125, 46 N. E. 813. IND.— Seller v. Linger, 24 Ind. 264; Muir v. Berkshire, 52 Ind. 149; Wilson v. Brown, 82 Ind. 471. IOWA— O'Brien v. Harrison, 59 Iowa 686, 12 N. W. 256, 13 N. W. 764. KY.— Miller v. Hall, 64 Ky. (1 Bush) 229; Forst v. Davis, 101 Ky. 343, 41 S. W. 27. MD.— John- son V. Robertson, 34 Md. 165. MONT.— McCarthy v. State Bank of Townsend, 54 Mont. 319, 170 Pac. 15. TEX.— B urns v. Led- better, 54 Tex. 374, 56 Tex. 282; Jones V. Smith, 55 Tex. 383. W. VA. — Haymond v. Camden, 22 W. Va. 180; Hull V. Hull, 35 W. Va. 155, 29 Am. St. Rep. 800, 13 S. E. 49. See, also, notes 30 Am. Dec. 177; 2 Am. St. Rep. 326; 35 Am. St. Rep. 126; 44 Am. St. Rep. 713; 59 L. R. A. 42-55. Fraud on part of purchaser shown, such relief denied. — See Milwaukee & M. R. Co. v. Soulter, 80 U. S. (13 Wall.) 517, 20 L. Ed. 534. See cases cited, 7 Rose's Notes of U. S. Reps., pp. 700-1. 5 McCarthy v. State Bank of Townsend, 54 Mont. 319, 170 Pac. 15. Action for reimbursement lies independent of statute. — Id.; Hall V. Dineen, 26 Ky. L. Rep. 1017, 83 S. W. 120; Schwinger v. Hickok, 53 N. Y. 280, 282; Hoxter v. Pople- ton, 9 Ore. 481; Henderson v. Overton, 10 Tenn. (2 Yerg.) 394, 24 Am. Dec. 492. 6 Richmond v. Marston, 15 Ind. 134; Hawkins v. Miller, 26 Ind. 173; Geoghegan v. Ditto, 59 Ky. (2 Mete.) 433, 74 Am. Dec. 413; McLean v. Martin, 45 Mo. 393; Stone V. Darnell, 25 Tex. Supp. 430, 78 Am. Dec. 582. V See: FLA. — Myers v. Nourse, 5 Fla. 516. KY.— Wolf or d v. Phelps, 25 Ky (2 J. J. Marsh.) 31; Salter v. Dunn, 64 Ky. (1 Bush I 311. MICH.— McKay v. Coleman, 85 Mich. 60, 48 N. W. 203. MOXT. — EUing v. Harrington, 17 Mont. 322, 42 Pac. 851. N. Y.— Kohler v. Kohler, 2 Edw. Ch. 69; Chapman V. Brooklyn, City of, 40 N. Y. 372; Schwinger v. Hickok, 53 N. Y. 280. TENN.— Ward v. Southerland, 7 Tenn. (Peck.) 1 appendix. FED.— Deputron v. Young, 134 U. S. 241, 33 L. Ed. 923, 10 Sup. Ct. Rep. 539: Lamb v. Ewing, 54 Fed. 269, 4 C. C. A. 320, 12 U. S. App. 11. 77 §574 CODE PLEADING AND PRACTICE. [Pt. II, breach of duty causes the invalidity of the sale, — on his bond for the amount of the purchase-price paid, together with interest and necessary disbursements for taxes.® In all these remedies, except that of substitution, the pur- chaser will be chargeable with the reasonable rental value of the premises while in possession.® 8 See Hightower v. Handlin, 27 Ark. 20 (execution void, the sale made after the execution should have been returned) ; Fleming v. Lockhart, 10 Mart. (La.) 308 (property not advertised as re- quired by law) ; Friedlander v. Bell, 17 La. Ann. 42 (property sold not levied upon or seized) ; Bowne v. O'Brien, 5 Daly (N. Y.) 474 (sale set aside for irregularities) ; Bragg V. Thompson, 19 S. C. 672 (judgment rendered against a per- son deceased at the time). Actual and constructive notice on part of purchaser, at the time of sale, of the existence of irregu- larities rendering any sale that may be made void, can not main- tain an action against the sheriff on his bond to recover the pur- chase money paid. — State ex rel. Sage V. Paine, 54 Ind. 450. See Myers v. Nourse, 5 Fla. 516. 778 PART III. PARTIES TO ACTIONS. CHAPTER I. IN GENERAL. § 575. Parties to an action — Who are. § 576. Who are not parties. § 577. Who may not be parties. § 578. In legal actions. § 579, In suits in equity. § 580. Procedural codes adopt doctrine of equity. § 581. Cause of action and what it includes. § 582. Actions ex contractu and ex delicto. § 575. Parties to an action — Who are. In the larger legal sense the parties to a civil action are, when used in connection with the subject-matter of the issue, all the persons having a right to control the proceedings, to make a defense, to adduce and cross-examine witnesses, and appeal from the decision or judgment, if an appeal lies.^ Persons not having these rights are regarded as strangers to the action. Specifically they are (1) the per- sons by whom, and (2) the persons against whom, actions 1 MO.— Springfield, City of, v. delphia, City of, 195 Pa. St. 168, 78 Plummer, 85 Mo. App. 515, 531; Am. St. Rep. 801, 45 Atl. 657. State ex rel. Kane v. Johnson TENN. — Boles v. Smith, 37 Tenn. (Mo.), 25 S. W. 855. N. H.— (5 Sneed) 105, 107. TEX.— Hodde Wheeler v. Towns, 43 N. H. 56; v. Susan, 58 Tex. 389, 393; Haney Hunt V. Haven, 52 N. H. 162, 169. v. Brown (Tex.), 46 S. W. 55. N. J. — CuUen v. Wolverton, 65 FED.— Robbins v. Chicago, City of, N. J. L. 279, 47 Atl. 626. N. Y.— 71 U. S. (4 Wall.) 657, 672, 18 Ash ton V. Rochester, City of, L. Ed. 427; Green v. Bogue, 158 133 N. Y. 187, 28 Am. St. Rep. 619, U. S. 478, 39 L. Ed. 1061, 15 Sup. 30 N. E. 9 6 5, 31 N. E. 334. Ct. 975; Theller v. Hershey, 89 PA.— Bealar v. Hohn, 132 Pa. St. Fed. 575; United States v. Hender- 242, 19 Atl. 74; Walker v. Phila- long, 102 Fed. 2, 4. E N G.— 779 §576 CODE PLEADING AND PRACTICE. [Pt. IK, are instituted. A corporation may be a party as well as a natural person.^ In courts of original jurisdiction, the former are called plaintiffs, and the latter defendants. In appellate courts they are kno^v^l as appellant and appellee or respondent; in courts of error, in some juris- dictions, as plaintiff in error, and defendant in error. The words ''party to an action" include all who are plaintiffs on one side and all who are defendants on the other side, either in the court of first instance or on appeal; so that a statute providing that the court shall give judgment for * ' either party, ' ' means either the plain- tiff or the defendant, and includes all the persons who are plaintiffs, or all the persons w^ho are defendants, — in- cludes all the persons belonging to the particular class. ^ <§ 576. Who aee not paeties. AVliile any one hav- ing or claiming an interest in the subject-matter of an action is entitled to be made a party to an action or pro- ceeding instituted for the purpose of enforcing some right or redressing some wrong against the person or persons proceeded against; and interest, or the claim of an inter- est, is the test of the right to be or to be made a party.^ Yet, technically speaking, a person is not a party to an action unless formally made such, however deeply he may be interested in the issues or however affected by the decision or judgment. Thus, a person for whose benefit a suit is brought is not a party to the action, although he is the only person whose interests or rights are in- volved, although he might with propriety be made a party;- he has no control over the proceedings in the Duchy of Kingston, In re, 20 How. 3 Sheldon v. Q u i n 1 e n, 5 Hill St. Tr. 538. (N. Y.) 441, 443. 1' South Carolina R. Co. v. Mc- i Hughes v. Jones, 116 N. Y. 67, Donald, 5 Ga. 531, 535; Citizens' 15 Am. St. Rep. 386, 5 L. R. A. 632, Street R. Co. v. Shepherd. 29 Ind. 22 N. E. 446. App. 412, 59 N. E. 349, 62 N. E. 2 Jamison v, Kelly, 4 Ky. (1 300. Bibb) 479. 780 Ch. I.] PARTIES — LEGAL AND EQUITABLE ACTIONS. §§ 577-579 action, no right to adduce or cross-examine witnesses, or to appeal from the decision or judgment. § 577. Who may not be parties. It is only per- sons having, or claiming to have, an interest in the subject- matter of the action, either as plaintiff or defendant, who are entitled to be made parties to a suit.^ And in what- ever capacities a person may act he can never maintain an action against himself, either as debtor or tort-feasor.^ § 578. In legal actions. The rules laid down in the preceding sections apply, alike, to actions under the common-law system of judicature and under the reformed system of judicature with procedural codes ; but the mode by which the interest which makes one a proper or neces- sary party is determined is very different. In an action at law, under the old system, the plaintiff must be a per- son in whom is vested the whole legal right or title; and if there were more than one, they must all be equally entitled to the recovery ; that is, the right must dwell in them all as a unit, and the judgment must be in their favor equally, and the defendants must be equally subject to the common liability, and judgment must be rendered against them all in a body. The necessity of joining all as plaintiffs in whom w^as vested the whole legal title, was imperative ; but in certain cases the plaintiff had the right to elect whether he would sue all who were liable; yet wherever judgment passed against two or more defen- dants, it was necessarily joint. § 579. In suits in equity. Under the former system of judicature, the suit in equity was not hampered by the arbitrary requirements set out in the preceding section. Its form was controlled by two general and natural prin- 1 See Hughes v. Jones, 116 N. Y. Phillips v. Phillips, 18 Mont. 305, 07, 15 Am. St. Rep. 386, 5 L. R. A. 309, 45 Pac. 221; Blaisdel v. Ladd,' 632, 22 N. E. 446. 14 N. H. 129; Methodist Episcopal 1' Byrne v. Byrne, 94 Cal. 576, 29 Church Trustees v. Stewart, 27 Pac. 1115, 30 Pac. 196; Eastman v. Barb. (N. Y.) 553. Wright, 23 Mass. (6 Pick.) 316; See, also, post, §632. 781 §§ 580, 581 CODE PLEADING AND PRACTICE. [Pt. Ill, ciples: (1) That it should be prosecuted by the party beneficially interested, instead of the party who had the apparent legal right, and with him might be joined all others who had an interest in the subject-matter, and in obtaining the relief demanded; and (2) that all persons, whose presence was necessary to a complete determina- tion and settlement of the questions involved, should be parties plaintiff or defendant, so that all their rights and interests, whether joint or several, or however varied as to importance or extent, might be determined and ad- justed by the court. It was not necessary that the decree should pass in favor of all the plaintiffs for the same right or interest, nor against all the defendants, enforc- ing the same obligation. Relief could be granted the defendant, or one of several defendants, against the plaintiffs, or against the other defendants. Under the former system of judicature, pleadings in equity were based upon the civil law, from which the doctrine of equity was derived. The early chancellors in England were generally dignitaries of the church, and for that reason were necessarily familiar with the civil law, — the law of the Roman Catholic Church.^ § 580. Peocedural codes adopt doctrine of equity. The procedural codes in those jurisdictions having the reformed judicature, while diff"ering somewhat in the details of their provisions, agree substantially in adopt- ing the rules observed by courts of equity in regard to jDarties in the two features above named. ^ <§, 581. Cause of action and what it includes. We have already discussed the phrase ''cause of action," given its definition and pointed out its nature and ele- ments.^ It remains but to add here that in every case there must be a ''cause of action"; that is, a right on the 1 See MaxweU's Code Pleading, i Pomeroy's Remedies and p. 3. Remedial Rights, §§ 196-200. 1 See, ante, § 5. 782 ch. I.] CAUSE OF ACTION INCLUDES WHAT. § 581 part of one person, the plaintiff, combined with a viola- tion or infringement of that right by another person, the defendant. The common, every-day use of the expression, ''cause of action," includes in its meaning all the facts which together constitute the action, and, therefore, we can not conceive of a cause of action apart from the per- son who alone has the right to maintain it.^ As Mr. Pom- eroy expresses it perspicuously and at length, ''every action is brought in order to obtain some particular re- sult which we call the remedy, which the Code calls the 'relief,' and which, when granted, is summed up or em- bodied in the judgment of the court. This result is not the ' cause of action, ' as that term is used in the Codes. It is true this final result, or rather the desire of obtaining it, is the primary motive which acts upon the will of the plaintiff, and impels him to commence the proceeding, and in the metaphysical sense it can properly be called the cause of this action ; but it is certainly not so in the legal sense of the phrase. This final result is the 'object of the action,' as that term is frequently used in the Codes and in modern legal terminology. It was shown . . . that every remedial right arises out of an ante- c('(lent primary right and corresponding duty, and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must, therefore, involve the following elements : A pri- mary right possessed by the plaintiff, and a correspond- ing primary duty devolving upon the defendant ; a delict or wrong done by the defendant, which consisted in a breach of such primary right and duty ; a remedial right in favor of the plaintiff, and a remedial duty resting on 2 A cause of action is said to be Contract violated, whether such composed of the right of the plain- contract be express or implied, a tiff and the obligation, duty or cause of action at once accrues, wrong of the defendant. These And the same is true of torts con- combined, constitute the cause of stituting a trespass upon person action. — Veeder v. Baker, 83 N. Y. or property. — People v. Cramer, 15 156, 160. Colo. 155, 25 Pac 302. 783 § 582 CODE PLEADING AND PRACTICE. [Pt. Ill, the defendant, springing from this delict, and finally the remedy or relief itself. Every action, however compli- cated or however simple, must contain these essential ele- ments. Of these elements the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used ill the Codes of the several states."^ § 582. Actions ex contractu and ex delicto. In treat- ing of the Election of Remedies and the necessity there- for, actions ex contractu and ex delicto are discussed in that relation ;^ it remains here but to add that the right which is violated or is infringed may be one which is created by a contract or agreement, express or implied, or it may be a natural right, or one which exists in favor of the plaintiff as against every other person indepen- dently of any contract or agreement; and hence, thougli Codes prescribe but one form of action, yet the right which underlies and forms the basis of the cause of action, naturally divides civil actions into two primary classes or divisions, viz. : actions ex contractu, for the violation of contract rights, and actions ex delicto, for the violation of natural rights, ^ Illustration. Thus, in the case of a written contract, wherein A agrees to sell and deliver certain goods to B, and B agrees to pay A a certain price, at a time named, therefor, a relation is established at once between the j)arties, and the contract itself discloses, in the light of the facts constituting the breach, who the party is who is entitled to maintain an action therefor, and against whom it must be brought. The right, as well as the lia- bility, is fixed by the contract, and can not exist inde- :5 Pomeroy's Remedies and v. Smith, 30 Minn. 399, 16 N. W. and Remedial Rights, § 453. 462; Sumner v. Rogers, 90 Mo. 1 See, ante, § 565. 324, 2 S. W. 476; Junker v. Forbes, 2 As to distinction between ac- 35 Fed. 84. lions ex contractu and ex delicto. See, also, authorities cited, ante, see Minneapolis Harvester Works § 565. 784 Ch. I.] EX CONTRACTU AND EX DELICTO ACTIONS. •§ 582 pendently of it. But in case of a tort, as if A wrongfully imprisons B, the right of B to his personal liberty exists against all the world ; but the right ha\dng been violated only by A, he alone is liable to an action therefor. This right of personal liberty is absolute ; it constantly exists, and does not depend upon any contract or other relation of the parties formed by themselves, while in the other case the right is created by the parties, and can not exist without it. Upon this difference depends the distinction between actions on contract and actions for tort. Distinction fundamental and also lies at the founda- tion of the rule that, independently of a statute authoriz- ing it, a right of action for a tort could not be assigned ; whilst a contract, or right based upon a contract, could, at least so far as to vest the beneficial interest in the assignee, it being considered that a natural right, one which the party could not create, he could not transfer. It is not our purpose, however, to discuss in this connec- tion the several kinds of contracts classed as negotiable and non-negotiable, nor the different kinds of torts as affecting the person or property, and the distinction to be taken between them.^ 8 See Pomeroy's Remedies and Remedial Rights, § 110. I Code PI. and Pr.— 50 785 CHAPTER n. PARTIES PLAINTIFF REAL. PARTY IN INTEREST. § 583. Code provision. § 584. Assignment of claim. § 585, Court construction — Keason assigned. § 586. Who is real party in interest. § 587. When promise is for benefit of third person. § 583. Code provision. The California Code of Civil Procedure requires that every action must be prosecuted in the name of the real party in interest,^ and similar provisions are found in all the procedural codes, with the exception of that of Georgia. To this general rule each of the procedural codes names certain exceptions, which will be hereafter noticed. This general code- pro\ision applies to all actions, whether founded upon a tort or upon a contract, and the defendant has a statutory right to have a cause of action against him prosecuted by the real person in interest.^ <^ 584. Assignment of claim. The California Code of Civil Procedure provides, — and a similar provision is found in most if not all of the other procedural codes, — that in case of an assignment of the thing in action, an action by the assignee is without prejudice to any set-off or other defense existing at the time of, or before, notice of the assignment ; except in the case of a note or bill of exchange, transferred in good faith, and upon good con- sideration, before maturity.^ ''Assignment of a thing in action/' as used in the above section of the code, and in all similar provisions 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 367. 2 Giselman v. Starr, 106 Cal. 657, 40 Pac. g. 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 368, 786 ch. II.] "assignment of thing in action.'* § 581 in other procedural codes, connote and include an actual and bona fide ''transfer of interest" by the owner to another ;- an actual ' ' conveyance ' ' of all rights and title and interest in and to the ''thing in action";^ the "vest- ing in another" of all the right and title and interest or estate therein.^ In other words, "assignment" means just what it says, using that word in its legal and tech- nical sense ; is a contract whereby the owner of the thing in action divests himself of all interest and right and title therein, and of all right to receive or derive any further or future benefit therefrom, and vests all the interest and right and title, including the right to the money on the payment or enforcement of the same, for a valuable consideration,^ or as a gift or donation. If the owner still retains an interest in the "thing in action, "° and has the right to receive the money arising from the enforcement thereof by an action at law or a suit in equity, on execution or otherwise, the transaction is in no legal sense an "assignment," as that word is used in procedural codes. A transfer, either with or without endorsement, without consideration, and merely for the purpose of having an action instituted and prosecuted in 2 Hoag V. Mendenhall, 19 Minn. a "real party in interest," and in 335; Hight v. Sockett, 34 N. Y. a suit on the judgment should be 447; Andrews v. National Bank of a party plaintiff. If the complaint North America, 7 Hun (N. Y.) 20. simply sets out an assignment of 3 See Wilson v. Beadle, 39 Tenn. the judgment, on the coming in of (2 Head) 510, 513. evidence showing that, as a matter 4 Brown v. Crookston Agricul- of fact and of law, but one-half of tural Assoc, 34 Minn. 545, 26 N.W. the judgment was assigned, the 907; Harlowe v. Hudgins, 84 Tex. cause should be dismissed or a 107, 31 Am. St. Rep. 21, 19 S. W. continuance ordered and the judg- 364. ment creditor ordered to be 5 See Commercial Bank v. Rufe, brought in. I am aware that the 92 Fed. 789, 795. California Supreme Court did not c Where a suitor assigns a judg- so hold in the case of Cobb v. ment to his attorneys as security Doggett, 142 Cal. 144, 75 Pac. 785, for their fees, retaining the right but that case is open to serious to receive one-half of the proceeds criticism, as pointed out in the thereof, less costs, he still remains next section. 787 § i)S5 CODE PLEADING AND PRACTICE. [Pt. IIT, the name of another, and enforcing the thing in action by a judgment and execution, retaining the right to receive the proceeds of such judgment and execution, not being in any proper and legal sense an "assignment," does not make the party to whom the pretended transfer is made and in whose name the action is instituted the **real party in interest" and entitled to maintain an action thereon under the code provision ; and to hold that such camouflage of a simulated transfer does confer that right is not only to do violence to the clear and explicit language of the code, but is also, in many instances, a judicial violation of, and evasion of, that other provision of the code requiring nonresident plaintiffs and foreign corporations to give security for costs ;'^ accomplishes no useful purpose in judicature, but does enable the owners of 'things in action," in some instances, to escape their legal obligations, and promotes the interests of collec- tion agencies. § 585. Court construction — Reason assigned. A construction at variance with wdiat is said in the pre- ceding section, is placed upon the provision of the pro- cedural codes, requiring the action to be brought and prosecuted in the name of the real party in interest, has been placed upon those provisions by the courts of Cali- fornia,^ Idaho,- North Dakota,^ Oregon,^ and perhaps in other jurisdictions ; but that does not change the facts in 7 Ken's Cyc. Cal. Code C i v. Walsch, 154 Cal. 108, 110, 97 Pac. Proc, § 103G. ''O; Russ v. Tuttle, 158 Cal. 226, 1 See Giselman v. Starr, 106 Cal. ^31, 110 Pac. 814. 2 Craig V. Palo Alto Stock Farm, 16 Idaho 701, 706, 102 Pac. 393. 3 Seybold v. Grand Forks Nat Pac. 402; Iowa & California Land ^^^^^ ^ ^_ ^ ^^^^ ^g^^ g^ ^. ^^ Co. V. Hoag, 132 Cal. 627, 630, 64 532 . American Soda Fountain Co. Pac. 1073; Dyer v. Sebrell. 136 y Hogue, 17 N. D. 375, 378, 17 Cal. 597, 588, 67 Pac. 1036;. Cobb l. R. A. (N. S.) 1116, 116 N. W. V. Doggett, 142 Cal. 142, 144, 75 339. Pac. 785; Meyer v. Foster, 147 Cal. -i Sturges v. Baker, 43 Ore. 236, 166, 168. 81 Pac. 402; Tonchy v. 241, 72 Pac. 744. 788 651, 657, 40 Pac. 8; Philbrook v. Superior Court, 111 Cal. 31, 34, 43 ell II.] COURT CONSTRUCTION OF "ASSIGNMENT." § 585 the case; the construction is unwarranted by the code provisions themselves or by any common-law or statutory rule of construction; has too much of the air of ''special pleading," and can but be regarded as ''judicial legisla- tion," and not an enforcement of either the letter or spirit of the statute. A reason for placing this construction upon the code provision has been given as follows: "The defendant has a statutory right to have a cause of action against him prosecuted by the real party in interest,'' and it was in this exercise of that right that he pleaded lack of title in the plaintiffs and asked to have deter- mined the conflicting claims of those whom he asserted to be the owners. But the purpose of the statute is readily discernible, and the right is limited to its pur- pose. It is to save the defendant, against whom judg- ment may be obtained, from further harassment and vexation at the hands of other claimants to the same demand. It is to prevent a claimant from making a simulated transfer, and thus defeating any just counter- claim or set-off which defendant would have to the de- mand pressed by the real owner. But where the plaintiff' showed such a title as that a judgment upon it satisfied by the defendant will protect him from further annoy- ance or loss, and where, as against the party suing, de- fendant can urge any defense he could make against the real owner, then there is an end of the defendant's con- cern and with it of his right to object. "'^ Every man has a right and interest to have the laws enforced in the letter and spirit. Other decisions show a like disposition to depart from the letter and spirit of the code provision." 5 Citing Code Civ. Proc, § 307, 111 Cal. 31, 34. 43 Pac. 402. and instead of § 367. Dyer v. Sebrell, 135 Cal. 597, 598, e Giselman v. Starr, 106 Cal. 651, 67 Pac. 1036 (holding that a cashier 657, 40 Pac. 8. See one language may maintain an action on a note in Philbrook v. Superior Court, 111 in which the real party in interest Cal. 31, 34, 43 Pac. 402, and other was the bank, and that the "plain- cases, tiff's prima facie title from pos- 7 Philbrook v. Superior Court, session may not be rebutted by the 789 §585 CODE PLEADING AND PRACTICE. [Pt.III, Construction not favored in many other jurisdictions. Thus, the Kansas procedural code has a provision sub- stantially the same as the provision in the California procedural code, requiring all actions to be prosecuted in the name of the real party in interest; and the Kansas Supreme Court has declared that a person holding by written assignment a verified, itemized account is not the real party in interest, and can not maintain an action thereon in his own name, where it is shown that by a con- temporaneous oral agreement he had agreed to pay the full amount thereof, when collected, to his assignor f and this is the rule even where the assignor, on the trial, testi- fied that the defendant in the action did not owe him any- thing, and that the whole amount is due him from the plaintiff, and that he is to pay him provided he recovers in the action.^ Following this construction of the code the debtor by evidence that the title is in some other party") ; Cobb v. Doggett, 142 Cal. 142, 144, 75 Pac. 785 (assignment for a valuable consideration, of a judgment, re- serving a one-half interest in the proceeds, after deducting costs therefrom. This was in effect an "assignment" of but a one-half interest in the judgment; and under a proper interpretation of the code section the assignor was a necessary "real party" plaintiff to a suit on the judgment as a real party in interest) ; Meyer v. Foster, 147 Cal. 166, 168, 81 Pac. 402, "the facts, also disclosed, that the purpose of such transfer was to enable the respective trans- ferees to collect the note for the benefit of Collins, or some other person, does not destroy the effect of the transfer. It was lawful to transfer the title for the purpose, and the person thus receiving title could maintain an action on the note in his own name" — although not he but Collins "or some othei person" was the "real owner," and the code says the suit must be maintained by the "real owner party in interest." s Stewart v. Price, 64 Kan. 191, 64 L. R. A. 581, 67 Pac. 553, over- ruling Krapp V. Eldridge, 33 Kan. 106, 5 Pac. 372. The same doc- trine is held in Swift v. Ellsworth, 10 Ind. 205, 71 Am. Dec. 316; Bost- wick V. Bryant, 113 Ind. 448, 459, 16 N. E. 478, 483; Mills v. Murry. 1 Neb. 327; Hoagland v. Van Elten, 22 Neb. 681, 684, 35 N. W. 869, 870, 23 Neb. 462, 36 N. W. 755; Kinsella v. Sharp, 47 Neb. 664, 66 N. W. 634; Eaton v. Alger, 57 Barb. (N. Y.) 179, 189; affirmed, 47 N. Y. 345 (fine presentation of whole question, though not now the law of that state). 9 Stewart v. Price, 64 Kan. 191, 64 L. R. A. 581, 67 Pac. 553, 790 eh. II.] REAL PARTY IX INTEREST — WHO IS. § oS6 same court lias held that there can be no recovery by a person who is the holder of a note, and has prima facie title thereto, on the showing that he is not the real owner thereof,^® although this holding was modified by allow- ing one holding the legal title to maintain an action in his own name.^^ See, however, discussion in next section. § 586. Who is real, party in interest. The real party in interest in *^a thing in action," is the person who is to derive the substantial or monetary benefit therefrom.^ The camouflage of a ''simulated transfer" can not make the tranferee the real party in interest — with all due respect to the decisions which, under a forced construc- tion, hold otherwise. It is simply a correct interpretation of plain Anglo-Saxon words. Under the reformed pro- cedural codes the rule is — or rightly interpreted is — the same in this regard as it was before the coming of these codes, when actions upon contracts were required in the name of the party in whom the legal interest was vested, or when the interest was injuriously affected, by the real party in interest; and the legal interest was held to be vested in him to whom the promise was made, and from whom the consideration passed. Thus, in an action for breach of contract, where no other person has acquired an interest in the matter in dispute, only the parties to the contract sued on should be made parties to the suit.^ But the party in whom the legal interest is vested is not always the real party in interest. **The real party in interest" is the party who would be benefited or in- jured by the judgment in the cause. The interest which warrants making a person a party is not an interest in the question involved merely, but some interest in the 10 Cleary v. Logan, 66 Kan. 799, 52; Bailey v. Fredonia CJas Co., 82 72 Pac. 1098. Kan. 746, 751, 109 Pac. 411. 11 See Manley v. Park, 68 Kan. i As to who is real party in in- 400, 1 Ann. Cas. 832, 66 L. R. A. terest, see note 64 L. R. A. 581-624. 970, 75 Pac. 557; Rullman v. Riill- :; Borlin v. Cazalis, 30 Cal. 92. man, 81 Kan. 521, 523, 106 Pac. 791 § 58G CODE PLEADING AND PRACTICE. [Pt. Ill, subject-matter of litigation.^ The rule should be re- stricted to parties whose interests are in issue, and are to be affected by the decree.'* The interest of the plain- tiff must be connected with the subject-matter of the action upon which the defendant is liable, though it is not necessary that he should be connected with it by a legal title. Hence, in actions ex contractu, the parties must stand related to the contract which forms the basis of the action. Even equity will not make a defendant liable, upon a contract, to a plaintiff who is neither a party to the con- tract, nor the legal or equitable owner of the contract right to the subject-matter of the suit, nor the legal rep- resentative of such owner. For example: A contracts with B to sell and deliver to him certain goods. B sells the same goods to C and agrees to deliver them to him in the same manner he would if the goods were already in his possession. A fails to deliver them to B, and B, therefore, can not deliver them to C. In such case C can not maintain an action against A for the nondelivery of the goods, notwithstanding B would have delivered to C if he had received them ; there being no privity between C and A, that is, C is in no way related to the contract by which A had agreed to deliver them ; but it would be otherwise if B had assigned his contract with A to C. Nor would it, in the case above supposed, be any defense to an action brought by B against A for nondelivery, that B had resold the goods to C, and that C did not intend to sue B for the nondelivery.^ It is perfectly 3 Valletta v. Whitewater Valley U. S. (13 Pet.) 359, 10 L. Ed. 200; Canal Co 4 McL. 192, Fed. Cas. United States v. Parrott. 1 McAll. No. 16820.' See Kerr v. Watts. 19 271, Fed. Cas. No. 15998, 7 Morr. U. S. (6 Wheat.) 550, 5 L. Ed. 328. ^'"- ^^P- ^^^\ . ^ ^ Real party in interest has been 4 Elmendorf v. Taylor, 23 U. S. discussed in preceding sections as (10 Wheat.) 152, 6 L. Ed. 289; ^.^g party entitled to the avails of Mechanics' Bank of Alexandria v. the suit. See §§ 584 and 585 and Seton, 26 U. S. (1 Pet.) 299, 7 cases cited. L. Ed. 152; Story v. Livingston, 38 5 Gunter v. Sanchez, 1 Cal. 50. 792 ell. III.] PROMISE FOR BENEFIT OF ANOTHER. § 587 apparent that these two executory contracts created no relation between A and C, nor between C and the prop- erty, for the property never passed from A because of the nondelivery. If, however, the contract between A and B had vested the property in B, and by the second contract the same property became vested in C, the latter might maintain an action against A concerning it ; or, if the goods after tho sale to B had remained in A's hands as bailee, he would be liable to an action by C for the nondelivery of the goods ; but in that case the bailment, though it may have been created by the terms of the contract between A and B, is in fact a separate contract from the sale, and imposes the duty upon A of delivering the goods to whom- soever may be the owner at the time they are demanded, and this duty is the synonym of an implied contract to deliver them to C, he having become the owner ; and this implied contract must be the basis of the action brought by C. In such action, it is true, it may be necessary to prove both contracts, because in the case supposed these contracts show the facts from which the implied contract arises, viz., the bailment and the ownership. § 587. When pkomise is for benefit of third person. In regard to actions upon promises made for the benefit of third persons, there has been much conflict in the decisions of the courts of the different states, especially among those which retain the common-law system of procedure, as to the right of such third person to main- tain an action against the promisor. In a majority of such latter states, however, the doctrine is now settled that such right of action exists. Thus, in a recent case in New Jersey, the court said:' ''The doctrine is well settled in this state that if, by a contract not under s(nil, one person makes a promise to another for the benefit of 1 Price V. Trosdell, 28 N. J. Eq. 200. 793 587 CODE PLEADING AND PRACTICE. [Pt. in, a third, the third may maintain an action on it, thoug-li the consideration did not move from him."- 2 Joslin V. New Jersey Car Spring Co., 36 N. J. L. (7 Vr.) 141. The facts in this case were: The plaintiff was employed as foreman by Fields & King, manufacturers, at a salary of $2,000 a year from February 1, 1870, to October 31, 1871, at which last date the de- fendants bought Fields & King's stock and assets, assumed their liabilities, and carried on their business. The plaintiff assented to this transfer of liability, and continued to act as foreman up to January, 1872, when he was dis- charged. This action was brought to recover from the defendants his salary from February 1, 1870, to January, 1872. The jury returned a verdict in his favor, and on a rule to show cause why the verdict should not be set aside, it was held that he was entitled to recover his salary for the whole period. The court said: "It is stated in some of the authorities cited, as a re- sult of a review of cases, that this is now well settled as a general rule. It must be borne in mind, however, that this case falls within a special class of cases where the party who makes the promise has received from the party to whom the promise is made, money or property, from or out of which he is to pay creditors of the second party. See M e 11 e n, Adm'x v. Whipple, 67 Mass. (1 Gray) 317. And in this class of cases the right of the creditor, the party for whose benefit the promise was made, to recover is, we think, sus- tained by the weight of authority." See Alien v. Thomas, 60 Ky. (3 Mete.) 198, 77 Am. Dec. 169; Sea- man V. Whitney, 24 Wend. (N. Y.) 260, 35 Am, Dec. 618; Burrows v. Turner, 24 Wend. (N. Y.) 276, 35 Am. Dec. 622; Baker v. Bucklin, 2 Den. (N. Y.) 45, 43 Am. Dec. 726; Baker v. Elgin, 11 Ore. 333, 8 Pac. 280; Chrisman v. State Ins. Co., 16 Ore. 289, 18 Pac. 466; Empress Engineering Co., In re, 16 Ch. Div. 125, 1 Eng. Rul. Cas. 699; Lloyd's V. Harper, 16 Ch. Div. 290, 1 Eng. Rul. Cas. 686. See, also, notes 35 Am. Dec, 621, 624; 43 Am. Dec. 739; 25 L, R, A. 257; 1 Eng. Rul. Cas. 704. Neither trover ncr action for money had and received will lie against a consignee of goods, or of money received for a third party, with instruction to deliver to such third party, until the consignee does some act by which he binds himself to such third party. — Eichelberger v. Murdock, 10 Md. 373, 69 Am. Dec. 140; Seaman v. Whitney, 24 Wend. (N. Y.) 260, 35 Am, Dec. 618; Bigelow v. Davis, 16 Barb. (N. Y.) 561; Strayham v. Webb, 47 N. C. (2 Jones' L.) 199, 64 Am. Dec. 580. See, also, notes 35 Am. Dec. 621; 64 Am, Dec, 581. — Consignment of remittance for account of another remains the property of the consignor or re- mittor until the party receiving it has done some act recognizing its appropriation to the particular purpose, and until the third party has done some act creating a privity between such third party and the person so receiving. — Wilson v. Carson, 12 Md. 75. Dependent child or other rela- tive for whom father has made 794 ell. II.] PROMISE FOR BENEFIT OF ANOTHER. § 587 The action of assumpsit, at common law, could not be maintained upon such promise, unless upon the tlieory that there was an implied promise to the creditor, for in that form of action the plaintiff is obliged to aver a promise to himself; and if such promise may be implied, there is no reason for confining the right of action to any class of cases where a consideration sufficient to support any contract between strangers has passed to the party making the promise. If, however, the action is brought in *'case" instead of assumpsit, there would be good grounds for the distinction. Under the Code, which not only abolishes the distinc- tions between actions at law and suits in equity, but requires that every action shall be brought in the name of the real party in interest, there would seem to be little doubt of the right of the party for whose benefit the promise was made to maintain the action, although sucli promise is contained in a writing under seal. Nor does this conflict with the rule above laid down, that ''the plaintiff must stand related to the contract, for the test is not the legal but the equitable title, right, or interest, and that interest is directly created by the contract.^" provision in his own name, as to Person with whom or in whose riglit to enforce the contract. — name contract made for benefit of Buchanan v. Tilden, 5 App. Div. another may maintain an action (N. Y.) 354, 39 N. Y. Supp. 228. thereon in his own name.— Rock- Promise fo.'" benefit of third per- well v. Holcomb, 3 Colo. App. 1, 31 son, there being nothing but the Pac. 944. promise, no consideration from 3 Wiggins v. McDonald, 18 Cal. such third person, and no duty or 126; Sacramento Lumber Co. v. obligation to him on the part of the Wagner, 67 Cal. 293, 7 Pac. 705; promisee, such third person can Malone v. Crescent City M. & T. not enforce the promise. — Jeffer- Co., 77 Cal. 38, 18 Pac. 858. son V. Asch, 53 Minn. 446, 39 Am. Subject discussed at length in St. Rep. 618, 25 L. R. A. 257, 55 Pomeroy's Remedial Rights and N. W. 604. Remedies, §§ 139 et seq. 795 CHAPTEK III. PAKTIES PLAINTIFF IN ACTIONS EX CONTRACTU. § 588. Plaintiff's relation to contract — How may arise. § 589. Entire cause of action must be represented by plaintiff. § 590. Bringing in new parties. § 591. Joinder of plaintiffs — In general. § 592. Death or refusal to join. § 593. Community of interest — Test of. § 594. Married woman to be joined with husband — Excep- tions. § 595. Numerous parties. § 596. Executors and administrators. § 597. Holders of title under common source. § 598. Joint owners of chattels. § 599. Joint tenants and tenants in common. § 600. Mortgages and mechanics' liens — Foreclosure. § 601. Partners. § 602. Persons authorized by statute. § 603. Principal and agent. § 604. Promissory notes — Plaintiffs in actions on. § 605. Quo warranto — Usurpation of franchise. § 606. Usurpation of office. § 607. Sheriff— Action by. § 608. State or United States — Actions by. § 609. Suits against fire departments — In California. § 610. Sureties as plaintiffs. §611. Trustees of an express trust — In land: Real party in interest. § 612. In "thing in action," etc: Real party in interest. § 588. Plaintiff 's relation to contract — How may ARISE. Before a person can maintain an action on a con- tract he must be a party thereto, or the contract must be for his benefit.^ The relation to the contract necessary 1 See, ante, § 587. 796 ch. III.] plaintiff's RELATION TO CONTRACT. §589 to enable one to maintain an action upon it may be cre- ated in many different ways: (1) By the contract itself, as in the case of the original parties to the contract; (2) by transfer or assignment; (3) by operation of law, — e. g., in the case of executors or administrators of a deceased party to, or assignee of, a contract; (4) by aid of the law, — e. g., in case of attachment or garnishment of debts due, or property in possession; but in most states this is a special proceeding in aid of an action pending; or for the enforcement of a judgment rendered. In some states, — as in Michigan, — although a suit must first be commenced against the principal defendant be- fore a writ of garnishment can be obtained against one indebted to him; yet the affidavit for the writ and the answer of the garnishee form an issue between them, and the case is docketed and tried as an independent suit, and a judgment is rendered therein for or against the garnishee, as in other actions, but as the garnishee of the principal debtor. Although the plaintiff in this proceed- ing is subrogated by force of the statute to the rights of the defendant in the principal case, yet it is more analogous to process of attachment against the principal debtor's property, by which a lien is secured upon it in advance of the judgment, since judgment can not be obtained against the garnishee until the plaintiff has obtained judgment against the principal defendant, and the moneys obtained by the proceeding must be applied to the satisfaction of the principal judgment, and does not otherwise become the property of the plaintiff. <^ 589. Entire cause of action must be represented by PLAINTIFF. To enable the court to properly determine the issues presented, the plaintiff must represent the entire cause of action, or causes of action, where more than one is presented by the complaint. This is in confonnity Avith the doctrine which prohibits the splitting of dc- 797 §590 CODE PLEADING AND PRACTICE. [Pi. ITf, maiids, whether arising out of contract^ or out of tort.- Hence it follows that all who are interested in the cau.'.o of action must be made parties plaintiff, unless such an one be dead or refuses to join as a plaintiff.-^ If they are not so joined, and that fact appears upon the face of tlio complaint, the complaint is subject to denmrrer on the ground of a want of proper and necessary parties plain- tiff.^ The word ' ' represent, ' ' and the word * ' interested ' ' are herein used in the sense in which they are used in the procedural codes. The person or persons who "rej)- resent" the entire course of action must be the ^'real party in interest," who is required to bring and main- tain the suit.^ § 590. Bringing in new parties. Under the Cali- fornia Code of Civil Procedure the court is required to determine the controversy between the parties where this can be done without prejudice to the rights of others, or by saving their rights; but when a complete determina- tion of the controversy can not be had without the pres- ence of other parties, the court must order them to be brought in, and to that end may order an amended or 1 Nightingale v. Scannell, 6 Cal. owning the balance of the cause of '506, 65 Am. Dec. 525; Pueblo, City action, and the court held that not- of, V. Dye, 44 Colo. 35, 96 Pac. 969; withstanding that a cause of action German Fire Ins. Co. v. NuUene, may not be split, and separate 51 Kan. 764, 33 Pac. 467; Cohen v. actions maintained thereon in the Clark, 44 Mont. 151, 119 Pac. 775; first place, that the defendant hav- Tootle V. Kent, 12 Okla. 674, 73 ing settled with the other party Pac. 310. interested in the cause of action. 2 See Wichita & W. R. Co. v. plaintiff thereby became the owner Beebe, 39 Kan. 465, 18 Pac. 502; of the entire cause of action re- Kansas City, M. & O. R. Co. v. maining, and could maintain the Shutt, 24 Okla. 96, 138 Am. St. Rep. suit— Fireman's Fund Ins. Co. v. 870, 20 Ann. Gas. 255, 104 Pac. 51. Oregon R. & Nav. Co., 58 Wash. Plaintiff owning on part of a 332, 108 Pac. 770. cause of action for a tort of the 3 See, post, § 592. defendant, commenced an action 4 See. Kerr's Cyc. Cal. Code Civ. thereon and thereafter the defen- Proc, § 433. dant settled with the other party 5 See, ante, §§583 et seq. 798 Ch. III.] JOINDER or PLAINTIFFS. § 591 supplemental complaint and direct that a summons^ be issued thereon and the process served.- When the action is for the recovery of real estate, or of an interest therein, or of personal property, or to determine conflicting claims thereto, and a person not a plaintiff, but having an inter- est in the subject-matter of the action, makes application to the court to be made a party, the court may order him brought in, by the proper amendment.^ The procedural codes in other jurisdictions have like provisions. § 591. Joinder of plaintiffs — In general. The Cali- fornia Code of Civil Procedure provides that all persons having an interest in the subject-matter of the action, and in obtaining the relief demanded, may be joined as plain- tiffs,^ and other procedural codes have a like provision. These are borrowed from the former equity practice; as is also the further provision, found alike in all procedural codes, that ''of the parties to the action those who are united in interest must be joined as plaintiffs or defen- dants ; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason thereof being stated in the com- plaint. "^ These sections, as well as the one which pro- vides that all actions shall be prosecuted in the name of the ''real party in interest, "^ have many exceptions, which will be hereafter noticed. Defendant's right, where he has made but one contract or incurred but a single obligation, is to require that the whole case be disposed of in one action.^ There may be cases of a contract made with two or more persons of such 1 As to summons, see, ante, § 123 i See Kerr's Cyc. Cal. Code Civ. et seq. Proc, § 378. As to service of process, see, 2 Id., § 382. ante, §§ 144 et seq. 3 See, ante, §§ 583 et seq. 2 See Kerr's Cyc. Cal. Code Civ. t As to splitting demands, Proc, 2d ed., § 389; Consolidated whether in actions ex contractu or Supp. 1906-1913, p. 1420. ex delicto, see authorities cited, 2 Id- ante, § 589, footnotes 1 and 2. 799 § 592 CODE PLEADING AND PRACTICE. [Pt. Ill, nature that a particular breach by the one party may injure but one of several persons who form the other party to the contract; and in such case only the person who has sustained damages, and who would be entitled to receive compensation for the breach, need sue; but wherever the damages are sustained by all of several con- stituting one of the parties to the contract, all must join as plaintiffs, unless the contract itself severs the interest of each from the other, or unless the amount to which each is entitled has been determined by the mutual agree- ment of both parties to the contract, which of course would amount to a several liquidation, and would enable each party to sue separately for his share ; the contract and the breach in such case being only matter of induce- ment. ''A contract by one person with two jointly does not comprehend or involve a contract with either of them sep- arately, as is evident from the well-known doctrine that a covenant or promise to two, if proved in an action brought by one of them, sustains a plea which denies the existence of the contract."^ From this it follows that all the parties to a joint and several contract may not be necessary parties in an action thereon.^ ^ 592. Death ok refusal to join. We have al- ready seen^ that, following the rule in equity, under the procedural codes, where a person who should be a party plaintiff refuses to join in the action, that fact may be stated in the complaint and the person made a party defendant ; and the death of such a person, that fact being set forth, is a sufficient excuse for not making him a party.2 All persons in interest must be made parties, 5 Wetherell v. Langston, 1 Exch. 2 See Hays v. Lasater, 3 Ark. g44 565; Nightingale v. Scannell, 6 Cal. Warren v. Hall, 20 Colo. 508, 38 506, 509, 65 Am. Dec. 525, 18 Cal. Pa^c 767. 315, 322; First Nat. Bank of Hum- 1 See ante, § 591, text and foot- mell, 14 Colo. 259, 20 Am. St. note 2. Rep- 257, 8 L. R. A. 788, 23 Atl. 800 ch. III.] COMMUNITY OF INTEREST — TEST OF. § 593 either plaintiff or defendant;^ and in all such cases the recovery must be entire, and for the whole interest, so tliat the defendant, against whom the recovery is had, may not be subjected to a second action; while those jointly entitled to the recovery, though one of them is a defendant, being both before the court, may have their mutual rights and interests adjusted in the same decree or judgment; or if from a complication of accounts, as between partners, that is inconvenient, the recovery must enter into the accounting between them. The person thus made a defendant is equally with the plaintiff bound by the judgment or decree. § 593. Community of interest — Test of. The in- terest referred to in the procedural codes ^ is a community of interest is that joint connection with, or relation to, the subject-matter which, by the rules of the common law, will preclude a separate action. It refers to such cases as joint tenants, cotrustees, partners, joint owners, or joint contractors simply.- In all these cases the right, to assert or protect which the suit is brought, is one which exists against them all, or the obligation to be enforced is common to them all ; then, if it is impracticable to bring tliem all before the court, one may sue or defend for all.^ The rule which permits the omission of parties, and the filing of a bill by one in behalf of all the others, is founded on necessity, and is established to prevent a failure of justice which could not be otherwise avoided.* 986; Godding v. Dicker, 3 Colo. (N. Y.) 596, 13 Abb. Pr. 119, 22 App. 198, 32 Pac. 832; Moody v. How. Pr. 233; Jones v. Felch, 16 Sewall, 14 Me. 295; Allen v. Miller, N. Y. Super. Ct. Rep. (3 Bosw ) 11 Ohio St. 374. 63. 3 See Williams V. Southern Pac. 3 See, post, §595; Casey v. R. Co., 110 Cal. 457, 460, 42 Pac. Brown, 58 Cal. 180; Baker v. 974; Birch v. Cooper, 136 Cal. 636, Ducker, 79 Cal. 365, 21 Pac. 764; 69 Pac. 420. Reid v. Evergreens, The, 21 How. 1 See Kerr's Cyc. Cal. Code Civ. Pr. (N. Y.) 319. Proc, §§ 378, 382. 4 Smith v. Lockwood, 13 Barb. 2 Gibbons v. Peralta, 21 Cal. 232, (N. Y.) 209; Bouton v. V.rooklyn, 233; Bucknam v. Brett, 35 Barb. City of, 15 Barb. (N. Y.) 375, 7 I Code PI. and Pr.— 51 gQ-^ §§ 594, 595 CODE pleading and practice. [Pt. Ill, § 594. Makried woman to be joined with hus- band — Exceptions. Under the California Code of Civil Procedure, a married woman must join her husband as a plaintiff when suing another person, except in those cases in which the action (1) concerns her separate property, (2) is for an injury to her person, or for a libel or a slan- der, (3) is for false imprisonment or for malicious prose- cution, (4) is to enforce her right or claim to homestead property, (5) is an action against her husband, or (6) where she is living separate and apart from her husband by reason of his desertion of her, or by an agree- ment in writing between them, — in all which cases she may sue alone. ^ Other procedural codes have similar provisions as to actions by married women. § 595. Numerous parties. The general rule in the old equity practice^ requiring all persons materially in- terested to be made parties plaintiff in the action or suit was always dispensed with where it was impracticable, or very inconvenient, as in the case of a very numerous association in a stock concern, in effect a partnership ;- and this rule in equity pleading has been carried into the procedural codes,^ which provides that where the parties are numerous, and it is impracticable to bring them all before the court, or where the question is one of common or general interest, one or more may sue or defend for the benefit of all. It would be very difficult to lay down any positive rule by which the degree of the inconvenience which would justify the omission could be absolutely de- How. Pr. 198; Towner v. Tooby, 38 646, 30 L. Ed. 1249; Smith v. Barb. (N. Y.) 598. Swornstedt, 57 U. S. (16 How.) 1 Kerr's Cyc. Cal. Code Civ. 288, 14 L. Ed. 942; Cockburn v, Proc, 2d ed., §370; Consolidated Thompson, 16 Ves. 321, 33 Eng. Supp. 1906-1913, p. 1408. Repr. 1005; Van Sandau v. Moore, 1 See, ante, § 591. 1 Russ. 441, 38 Eng. Repr. 171. 2 Gorman V. Russell, 14 Cal. 540; See Story's Eq. PI. (9th ed.). Gates V. Boston & N. Y. A. L. R. § 135. Co., 53 Conn. 333, 349, 5 Atl. 695; n See Kerr's Cyc. Cal. Code Civ. writ of error dismissed, 122 U. S. Proc, §§ 382, 384. 802 oil. III.] NUMEROUS PARTIES — CALIFORNIA RULE, § 595 termined. Other circumstances aside from the numbers must often enter into a proper determination. The trial court has a large degree of discretion in the matter, con- sidering (1) the difficulty and expense of joining them, and (2) the paramount importance of having such a rep- resentation of the interests concerned as to insure that the issues are fully and fairly tried."' The exigencies of the case, the necessity for prompt action, the hazards, or inevitable loss from delay, might justify the omission in one case, while in another all the defendants, thougli equally numerous, should be brought in. The facts relied upon to justify the omission should be clearly stated in the complaint, and become a matter for judicial decision, governed by the spirit of the particular procedural code and the facts of the particular case.^ Thus, in the case of an action by or on behalf of a church organization or congregation, and similar organizations consisting of a large body of members, where the complaint avers such association of persons and sets out that they are numer- ous, that it is impracticable to bring them all before the court, and that the plaintiffs prosecute the action for all the members of the society or church or association as well as for themselves, one or more may sue for all.^ The California rule, under the Procedural Practice Act, section 14, was that the provision applied to suits in equity only, and did not include actions at law,^ but tliis distinction does not exist under the present Code of Civil Procedure, or under the procedural codes in the various jurisdictions. 4 Stevenson v. Austin, 44 Mass. 5 Andrews v. Mokelumne Hill (3 Mete.) 474; Smith v. William. Co., 7 Cal. 330, 333. 116 Mass. 510, 512; Stillwell v. Mc- "Baker v. Ducker, 79 Cal. 3Go. Neely, 2 N. J. Eq. (1 Gr.) 305. 307; ^^ ^^''- '^^^ ' Wheelock v. F i r s t Tj iw* tj „ .. o T. • ^^ Presbyterian Church, 119 Cal. 477. Hallett V. Hallett, 2 Paige Ch. 430, 51 Pac. 841 (N. Y.) 15; Harvey v. Harvey, 4 7 Andrews v. Mokelumne Hill Beav. 215; 5 Beav. 134. Co., 7 Cal. 330, 333. 803 § 596 CODE PLEADING AI^D PRACTICE. [Ft. Ill, § 596. Executors and administrators. To the pro- vision of the California Code of Civil Procedure requir- ing that every action shall be prosecuted in the name of the real party in interest/ there are certain exceptions, among which are actions prosecuted by executors and administrators; the code expressly providing that (1) an executor, administrator, or (2) trustee of an express trust, or (3) a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted, and (4) a person with whom or in whose name a contract is made for the benefit of another is a trustee of an express trust, within the meaning of this section.^ The estate of a decedent being entire, in those cases in which more than one executor has been appointed and has qualified, they are considered in law as but one person, and all must be joined as plaintiffs in any action at law or suit in equity for or on account of the estate.^ The former rule was that where more than one executor was named, all must join in an action for or on behalf of the estate, even though some had renounced ;^ but by express provision of the California Code of Civil Procedure when all the executors named are not appointed by the court, those appointed have the same power and authority to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appointed and should act together.^ And the same rule applies in the case of two or more administrators and but one acting.^ 1 See, ante, §§ 583-587. 313; Hensloe's Case, 9 Co. 36b, 37b, 2 Kerr's Cyc. Cal. Code Civ. 77 Eng. Repr. 784, 786; Cabell v. Proc, § 369. Vaughan, 1 Saund. 291, 85 Eng. 3 Insley v. Shire, 54 Kan. 793, 45 Repr. 389. Am. St. Rep. 308, 39 Pac. 713. 5 Kerr's Cyc. Cal. Code C i v. See Church's Probate Law and Proc., §1355. Practice, vol. 1, p. 1044. 6 Packer v. Wilson, 15 Wend. i Bodle V. Hulse, 5 Wend. (N. Y.) (N. Y.) 343. 804 ell. III.] EXECUTORS AND ADMINISTRATORS. § 596 Uuder procedural codes, executors have the right to institute actions under the general authority conferred l)y statute, — e. g., an action to quiet title,' bring and maintain ejectment,^ replevin,'' and the like. But the provision that an executor may sue, without joining with him the person for whose benefit the action is prosecuted, has no applica- tion in case of an action for the construction of a wilL^*^ In California, it is also provided that ''actions for the recovery of any property, real or personal, or for the pos- session thereof, and all actions founded upon contracts, may be maintained by and against executors and admin- istrators in all cases in which the same might have been maintained by or against their respective testators or intestates. "^1 In such section, actions to quiet title to lands are omitted. It is especially provided ''that the heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quiet- ing title to the same, against any one except the executor or administrator. "^- As executors and administrators are required to take into their possession all the estate of the decedent, real and personal,^^ they must have the right to maintain an 7 Curtis V. Sutter, 15 Cal. 259; 9 Halleck v. Mixer, 16 Cal. 574, Teschmacher v. Thompson, 18 Cal. 579; Whitaker v. Boston, 120 Tenn. 20, 79 Am. Dec. 151; Pennie v. Hil- 207, 216, 10 S. W. 1022; London, dreth, 81 Cal. 127, 22 Pac. 398; Paris & American Bank v. Aron- Blakemore v. Roberts, 12 N. D. 394, stein, 54 C. C. A. 663, 117 Fed. 601, 401, 96 N. W. 1029. 605. >< S 6 e Mayer v. Karnegay, 163 lo Hobart College, Trustees of, Ala. 371, 136 Am. St. Rep. 79, 50 v. Fitzburgh, 7 N. Y. 130. So. 880; Haight v. Green, 19 Cal. ii Kerr's Cyc. Cal. Code Civ. 113; McLearn v. Benton, 73 Cal. Proc, §1582. 329, 342, 2 Am. St. Rep. 814, 14 12 Kerr's Cyc. Cal. Code Civ. Pac. 879; Patchett v. Pacific Coast Proc, 2d ed., § 1452; Consolidated R. Co., 100 Cal. 505, 510, 35 Pac. Supp. 1906-1913, p. 1869. 73; McCarthy v. Brown, 113 Cal. 1 3 See Kerr's Cyc. Cal. Code Civ. 15, 20, 45 Pac. 14; Jenkins v. Jen- Proc, §1581. See Harwood v. sen, 24 Utah 108, 123, 66 Pac 773. Marye, 8 Cal. 580; Scott v. Lloyd, See note 136 Am. St. Rep. 82. 16 Fla. 155. 805 § 596 CODE PLEADING AND PRACTICE. [Pt. Ill, action for its possession, \vitliout being compelled to obtain the consent of the heirs or devisees, but it is not clear that the executor or administrator can bring an action to quiet title without joining the heir or de\^see, under either of these provisions. However, in cases where it became necessary to the proper execution of the trust that such action should be brought, he might, if the heirs or devisees refused to join as plaintiffs, make them defendants, under section 382.^^ An action to quiet title may be maintained by the heirs without joining the administrator.^^ In construing these provisions it has been held that an executor or administrator can maintain an action, without joining his beneficiary, for the wrongful conversion or embezzlement of the property of his intestate ;^^ or an action of replevin;^' or for trespass to the real property of the testator ;^^ or to foreclose a mortgage ;^^ or to set aside deeds fraudulently made by the deceased.-" So, also, an administrator may maintain an action on a note made payable to him as administrator.-^ But in Massachusetts an administrator of the deceased promisee and the sur- Action against executor of de- 38 Pac. 965; Sheldon v. Hoy, 11 ceased executor, lies in favor of How. Pr. (N. Y.) 11. the executor of an estate to re- See, also, cases in footnote 9, cover the proceeds of a life in- this section. surance policy upon the life of i7 Halleck v. Mixer, 16 Cal. 575. decedent, and to recover the value isHaight v. Green, 19 Cal. 113; of other personal property of the Rockwell v. Saunders, 19 Barb, estate, collected by the deceased (N. Y.) 473. executor, and not accounted for to i9 Harwood v. Marye, 8 Cal. 580. the estate.— Curran v. Kennedy, 89 20 Kerr's Cyc. Cal. Code C i v. Cal. 98, 26 Pac. 641. Proc, § 1589. 14 See, however, Curtis v. Sut- 21 Corcoran v. Dall, 32 Cal. 82; ter, 15 Cal. 259. Cooper v. Kerr, 3 Johns. Cas. 15 Tryon v. Huntson, 67 Cal. 325, (N. Y.) 606; Robinson v. Crandall. 7 Pac. 741. 9 Wend. (N. Y.) 425; Merritt v. leBeckman v. McKay, 14 Cal. Seaman, 6 N. Y. 168, reversing 6 250; Jahns v. Nolting, 29 Cal. 507, Barb. 330; Eagle v. Fox, 28 Barb. 512; Hain v. Henderson, 50 Cal. (N. Y.) .473, 8 Abb. Pr. 40; Bright 367, 369; Levy v. Superior Court, v. Currie, 7 N. Y. Super. Ct. Rep 105' Cal. 600, 608, 29 L. R. A, Sll. (5 Sandf.) 433. 80G Ch. III.] FOREIGN EXECUTOR OR ADMINISTRATOR. § 596 viving promisee of a promissory note can not join in bringing an action on the note.-- Nor can an adminis- trator de bonis non maintain an action in his own name for the price of goods of his intestate, sold by a previous administrator.-^ And an administrator can not maintain an action to recover personal property belonging to the estate after he has ceased to be administrator of the estate.2* On a demand due to the testator before his decease, the executor may sue, either in his individual capacity or in his capacity as executor.-^ So he may sue as adminis- trator, or in his own right upon a note made or indorsed to him as administrator.-*^ And in an action for conver- sion, after the death of the intestate, the administrator may sue in his own name properly, though the conversion took place before the granting of the letters of admin- istration, as the letters relate back to the time of the death, and give title by relation.-^ And it has been held in New York that an executor may sue in two different capacities, as executor and devisee, where the causes of action are such as may be joined.-^ A foreign executor or administrator can not sue in another state in his representative capacity. His au- thority does not extend beyond the jurisdiction of the government under which he w^as invested with his au- thority.^^ The objection that a foreign administrator can not sue must be taken by demurrer.^*^ But the assignee of the thing in action transferred by such foreign executor ii2 Smith V. Franklin, 1 M a s s. 27 Sheldon v. Hoy, 11 How. Pr. 480. (N. Y.) 11. 2S Armstrong v. Hall, 17 How. Pr. (N. Y.) 76. 23Calder v. Pyfer, 2 Cr. 430, Fed. Cas. No. 2299. 24 Affierbach v. McGovern, 79 Cal. 268, 21 Pac. 821. "^ Terr's Cyc. Cal. Code Civ. 25 Merritt v. Seaman, 6 N. Y. P^°^' § ^^l^- 168, reversing 6 Barb. 330. so Robbins v. Wells, 24 N. Y. 20 Bright v. Currie, 7 N. Y. Super. Ct. Rep. (1 Rob.) 666, 18 Super. Ct. Rep. (5 Sandf.) 433. Abb. Pr. 191, 26 How. Pr. 15. 807 §§597,598 CODE pleading and practice. [Pt. Ill, or administrator, may sue the debtor resident in another state; and so also may a testamentary trustee sue in a foreign state to recover stocks belonging to the trust estate.^^ The disability of the representative is personal and does not affect the subject of the action ; and in the application of this rule, executors or administrators made or appointed under the laws of any other state in the Union are regarded as foreign.^^ § 597. Holders of title under common source. Two or more persons claiming any estate or interest in lands under a common source of title, whether holding as (1) tenants in common, (2) joint tenants,^ (3) copar- ceners;- or (4) in severalty, are properly united as plain- tiffs in an action against any person claiming an adverse interest therein, for the purpose of (1) determining such adverse claim, (2) of establishing such common source of title, (3) of declaring the same to be held in trust, (4) of removing a cloud upon the same.^ § 598. Joint owners of chattles. Both at common law and under the procedural codes, a co-owner of chattle property can maintain no action to enforce his proprie- tary rights therein without joining his co-owners;^ but one co-owner can not recover possession of the common property from his co-owner who is in the exclusive pos- session thereof, in an action in the nature of replevin. - 31 Toronto General Trust Co. v. Am. St. Rep. 743; 45 Am. St. Rep. Chicago, B. & Q. R. Co., 123 N. Y. 672; 2 L. R. A. 828; 2 Eng. Rul. 37, 25 N. E. 198, reversing 4 N. Y. Cas. 91. Supp. 726. 1 As to joint tenants, see, post, 32 Peterson v. Chemical Bank, § 599. 32 N. Y. 21, 88 Am. Dec. 298, af- 2 As to copartners, see, post, firming 25 N. Y. Sup. Ct. Rep. (2 § 601. Rob.) 605; Taylor v. Syme, 162 3 See Kerr's Cyc. Cal. Code Civ. N. Y. 513, 31 N. Y. Civ. Proc. Rep. Proc, § 381. 1, 57 N. E. 83; Stewart v. O'Don- i See Peck v. McLean, 36 Minn, nell, 2 Dem. (N. Y.) 17; Jones, In 228, 1 Am. St. Rep. 665, 30 N. W. re, 3 Redf. (N. Y.) 257; Patterson 759. V. Pagan, 18 S. C. 584. 2 Mills v. Malott, 43 Ind. 248; See notes 2 Am. St. Rep. 886; 8 Cross v. Hulett, 53 Mo. 397; State 808 ell. III.] JOINT OWNERS OF CHATTELS. § 598 Thus, tenants in conunon of wool, who became such by one of them letting sheep for a year to the other, with an agreement that the latter was to take care of the sheep, shear them, sack the wool, and deliver it to the o\vner of the sheep at A, a port, to be by him shipped to a commis- sion merchant at B, to be sold, and that when the wool was sold the proceeds were to be equally divided, can not maintain replevin against each other, nor can one against the vendee of the other f and the same necessity exists for the joinder of all the cotenants in an action to recover for the conversion by a stranger * but one joint tenant or tenant in common may sue another joint tenant or tenant in common who sells for his own benefit or destroys the common property.^ So, also, tenants in com- mon must join in an action for an entire injury done to the partnership property, either in tort, or assumpsit when tort is waived.^ Joint owners or joint charterers of ships are tenants in common, and must all join in an action affecting the common property, or for the recovery of freight. '^ V. Wilbur, 77 N. Y. 158; Hill v. 6 Gilmore v. Wilbur, 29 Mass. Seager, 3 Utah 379, 3 Pac. 545. (12 Pick.) 120. 22 Am. Dec. 410; 3 Hewlett V. Owens. 50 Cal. 474, Corcoran v. White. 146 Mass. 329, 51 Cal. 570; Hill v. Seager, 3 Utah 4 ^m. St. Rep. 313, 15 N. E. 636; Clapp V. Pawtucket Institution for Sav., 15 R. I. 489, 2 Am. St. Rep. 915, 8 Atl. 697. 379, 380. 3 Pac. 545. 4 See Kerr's Cyc. Cal. Code Civ. Proc, §§367. 381; supra. §§583 et seq., 589; Whitney v. Stark, 8 Cal. 514, 68 Am. Dec. 360; Rice Exceptions to the rule, see Peck V. Hollenbeck. 19 Barb. (N. Y.) '^- McLean. 36 Minn. 228, 1 Am. 664; Gock v. Keneda. 29 Barb. St. Rep. 665, 30 N. W. 759. (N. Y.) 120. T Merritt v. Walsh. 32 N. Y. 685; 5 Yamhill Bridge Co. v. Newby, Donnell v. Walsh, 33 N. Y. 43. 88 1 Ore. 173. 174; Wood v. Steinau. Am. Dec. 361; Dennis v. Kennedy, 9 S. D. 110. 114. 68 N. W. 160; 19 Barb. (N. Y.) 517; Sherman v. Schwartz v. Kennedy, 142 Fed. Fream. 30 Barb. (N. Y.) 478; 1031; Heath v. Hubbard, 4 East Bucknam v. Brett, 35 Barb. (N. Y.) 110, 102 Eng. Repr. 771; Brown 596. 13 Abb. Pr. 119, 22 How. Pr. V. Hedges. 1 Salk. 290. 91 Eng. 233; Coster v. New York & E. R. Repr. 257; Fennings v. Granville. Co.. 13 N. Y. Super. Ct. Rep. (6 1 Taunt. 241, 127 Eng. Repr. 825. Duer) 43, 3 Abb. Pr. 332. 809 § 599 CODE PLEADING AND PRACTICE, [Pt. Ill, § 599. Joint tenants and tenants in common. The California Code of Civil Procedure regulating actions by- joint tenants and tenants in common, follows the usual rule in the various procedural codes, the provision being that "all persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. "^ We have already seen what the code provision is in the case of persons holding title from a common source.- At the common law, joint tenants were required to join in an action of ejectment, and the failure to do so was fatal to a recovery.^ "While two or more cotenants could not join in an action of ejectment, the interest of each being separate and distinct.^ But under the provisions of the procedural codes, the right of one tenant in common to recover in an action of ejectment the possession of the entire tract as against all persons but his cotenants, has been repeatedly upheld.^ Or he may sue alone for his 1 Kerr's Cyc. Cal, Code Civ, Newman v. Bank of California, 80 Proc, § 384. Cal. 368, 13 Am, St. Rep, 169, 5 2 See, ante, § 597, L, R. A. 467, 22 Pac. 261; Moulton 3 Dewey v. Lambier, 7 Cal. 347. v. McDermott, 80 Cal. 629, 22 Pac. 4 De Johnson v. Sepulbeda, 5 296; Lee Chuck v. Quan Wo Cal. 149; Throckmorton v. Burr, 5 Chong, 91 Cal. 593, 28 Pac. 445; Cal. 401; Park v. Kilham, 8 Cal. 79, McDonald v. McCoy, 121 Cal. 55, 68 Am, Dec. 312 (but they may 67, 53 Pac. 421. COLO.— Weise join in an action for the diversion v. Barker, 7 Colo. 178, 2 Pac. 919. of the waters of a common ditch) ; FLA. — Simmons v. Spratt, 26 Fla. Welch V. Sullivan, 8 Cal. 187. 449. 461, 9 L. R. A. 464, 8 So. 123. 5 See: ALA.— Smith v. Thank- KAN.— King v. Hyatt, 51 Kan. 504, ersley, 20 Ala. 272, 56 Am. Dec, 37 Am, St, Rep, 304, 32 Pac. 1105. 193. CAL. — Stark v. Barrett, 15 NEB. — Crook v. Vandervoort, 13 Cal. 361, 371; Touchard v. Crow, Neb. 505, 507, 14 N. W. 470. 20 Cal. 150, 81 Am, Dec, 108; Ma- N. C— Thaines v. Jones, 97 N. C. honey v. Van Winkle, 21 Cal. 583; 121, 1 S. E. 692. TEX.— Johnson Caller v. Felt, 30 Cal. 484;. Wil- v. Schumacher, 72 Tex. 334, 12 liams v. Sutton, 43 Cal. 71; Chip- S. W. 2t)7; Wright v. Dunn, 73 man v. Hastings, 50 Cal. 310; Tex. 293, 11 S. W. 330. VT.— Mc, Chapman v, Quinn, 56 Cal. 266: Farland v. Stone, 17 Vt. 165, 44 810 I'll. 111.] TENANTS, JOINT AND IX COMMON. §599 moiety;® or may in equity obtain a partition J And these rules apply equally to the grantee of a tenant in com- mon.'^ So, also, executors and administrators can main- tain such action jointly with the other tenants in common in all cases where their testators or intestates could have done so, until the administration of the estates they repre- sent have closed, or the property is distributed under the decree of the Probate Court.^ But if an estate should be sold in lots to different purchasers, by different con- tracts, they could not join in exhibiting one bill against the vendor for specific performance; yet where there was a contract to convey with but one person, under which the purchaser conveyed his equitable interest of a moiety to each one of two persons, it was held that these two per- sons might sue the original vendor for specific perform- ance.^*' And where one tenant in common sells the right to a stranger to cut timber off of the common property, an- other tenant in common of the same property can not maintain replevin for the timber after it has been cut.^^ After severance of a fund held in common, each party may maintain a separate action for his ascertained share.^^ Am. Dec. 325. WASH.— Allen v. Hart v. Robertson, 21 Cal. 348; Higgins, 9 Wash. 446, 448, 43 Am. Mahoney v. Van Winkle, 21 Cal. St. Rep. 848, 37 Pac. 671. FED.— 583; Reed v. Splcer, 27 Cal. 64; Hardy v. Johnson, 68 U. S. (1 Carpenter v. Webster, 27 Cal. 560. Wall.) 371, 17 L. Ed. 502; Le 9 Reynolds v. Hosmer, 45 Cal. Franc v. Richmond, 5 Sawy. 601, 616, 631. G04, Fed. Cas. No. 8209. lo Owen v. F^enk, 24 Cal. 171, li Covilland V. Tanner, 7 Cal. 38; 177; Utterbock v. Meeker, 16 Collier v. Corbett, 15 Cal. 183; Wash. 185, 192, 47 Pac. 428. Gric^wold v. Minneapolis, St. P. & ii Alford v. Brodeen, 1 Nev. 228; S. S. M. R. Co., 12 N. D. 435, 439, Paul v. Cragnas, 25 Nev. 316, 47 102 Am. St. Rep. 572, 97 N. W. 538. L. R. A. 543, 59 Pac. 861; Baker 7 Beebee v. Griffing, 14 N. Y. v. Wheeler, 8 Wend. (N. Y.) 505, 235; Tripp v. Riley, 15 Barb. 24 Am. Dec. 66; Gillum v. St. Louis (N. Y.) 333; Tinney v. Stebbins, A. & T. R. Co., 5 Tex. Civ. App. 28 Barb. (N. Y.) 290. 338, 340, 23 S. W. 717; McDodrill >* Seward v. Malotte, 15 Cal. 304; v. Pardee & Curtin Lumber Co., Stark V. Barrett, 15 Cal. 361; 40 W. Va. 564, 579, 21 S. E. 878. Touchard v. Crow, 21 Cal. 162; 12 General Mut. Ins. Co. v. Ben- 811 § 600 CODE PLEADING AND PRACTICE. [Pt. Ill, § 600. Mortgages and mechanics' liens — Foreclosure. In actions to foreclose mortgages, all persons interested in the estate may be made parties, but no person holding an unrecorded mortgage, conveyance or lien, from or under the mortgagor at the commencement of the action, need be made a party to an action to foreclose a mortgage or lien.^ The mortgagee of a policy of insurance is the owner, and can alone maintain an action upon it f but the party to whom the loss is made payable in the policy may sue in his own name, if not assigned, sold, or mortgaged f and if the assignment by the owner is to two or more creditors, each of such assignors is a necessary party plaintiff in a suit on the policy.^ Where the policy of insurance on a building being erected is taken in the name of the owner, with a clause providing for contrac- tor's insurance for thirty days, a fire loss having occurred within thirty days, the contractor can sue in his own name.^ In equitable action to establish mechanic's lien and to foreclose the same, all persons claiming a mechanic's or a son, 12 N. Y. Super. Ct. Rep. (5 v. State Ins. Co., 16 Ore. 283, 18 Duer) 168. Pac. 466. 1 See Kerr's Cyc. Cal. Code Civ. Community property covered by Proc, § 726. the policy, the wife is properly 2 Ripley V. Aetna Ins. Co., 29 joined with the husband as plain- Barb. (N. Y.) 552, 17 How. Pr. tiff. — Hedican v. Pennsylvania Fire 444; reversed on other points, 30 Ins. Co., 21 Wash. 488, 58 Pac. 574. N. Y. 136, 86 Am. Dec. 362; Ennis 3 Frink v. Hampden Ins. Co., 45 V. Harmony Fire Ins. Co.. 16 N. Y. Barb. (N. Y.) 384, 1 Abb. Pr. N. S. Super. Ct. Rep. (3 Bosw.) 516. See 343, 31 How. Pr. 30; P e c k v. Bodle V. Chenango County Mut. Girard Fire & Marine Ins. Co., 16 Ins. Co., 2 N. Y. 53; Bidwell v. Utah 121, 67 Am. St. Rep. 600, 51 Northwestern Ins. Co., 19 N. Y. Pac. 255. 179. 4 German-American Ins. Co. v. Assignment to successor in i-n- Johnson, 4 Kan. App. 357, 45 Pac. terest, with the consent of . t h e 972. insurance company, suit may be sGer mania Fire Ins. Co. v. maintained on the policy in the Thompson, 43 Kan. 567, 23 Pac. name of such assigner. — Chrisman 608. 812 Ch. III.] PARTNERS — CODE AND COMMON-LAW RULE. § 601 material man's lien^ upon the property may join as plain- tiffs in the action."^ § 601. Partners. While the common-law rule which requires that in actions for the benefit of a partnership, all the partners must be joined as plaintiffs, has been carried into the procedural codes, in California it is espe- cially provided that coparceners may jointly or severally commence or defend a civil action for the enforcement or protection of the rights of such party.^ Under the common-law rule all the partners should join in an action for the collection of a partnership debt, as for the recovery of the price of goods sold by the firm. It can not be maintained in the name of one, although he is the general agent of the firm.^ The same rule prevails in an action to recover against an innkeeper for the loss of goods f or in an action for damages for a deceit in the purchase of real estate for partnership purposes ;^ but a deed conveying land to the members of a partnership enables one partner to maintain ejectment against an intruder.^ Whether a dormant or special partner is a necessary party plaintiff, is a question of practice which 6 Barber v. Reynolds, 33 Cal. 2 Halliday v. Doggett, 36 Mass. 497; Fitch v. Creighton, 65 U. S. (19 Pick.) 359; Briggs v. Briggs, (24 How.) 195, 16 L. Ed. 596. 20 Barb. (N, Y.) 477; affirmed, 15 See Bloom's Mechanics' Liens, ^- ^- ^'^1- ^weet v. Bradley, 24 §§ 100 101 ^&Th. (N. Y.) 549; Hyde v. Van ,^'',_ r. ^ r^ ^ r^- Valkenburgh, 1 Daly (N. Y.) 416; - See Kerrs Cyc. Cal. Code Civ. ^^^j^^^, ^ ^^^.^^^ ^^ ^^^^ p^ Proc. 2d ed.. §1195; Consolidated (n. Y.) 162; Bridge v. Parson. 7 Supp. 1906-1913, p. 1791; Malone n. Y. Super. Ct. Rep. (5 Sandf ) V. Big Flat Gold Min. Co., 76 Cal. 210. 578, 582, 18 Pac. 772; Booth v. 3 Needles v. Howard, 1 E D Pendola, 88 Cal. 36, 42, 23 Pac. gmith (N Y ) 54 200, 25 Pac. 1101. See Parker v. 4 Medbury v. Watson, 47 Mass. Savage Placer Min. Co.. 61 Pac. (g Mete.) 246, 39 Am. Dec. 726, 348; Curnow v. Happy Valley Blue 5 Smith v. Smith, SO Cal. 323, 21 Gravel & Hydraulic Co., 68 Cal. p^c. 4, 22 Pac 186, 549 262, 266, 9 Pac. 149. ^s to what title or interest will 1 See Kerr's Cyc. Cal. Code Civ. support ejectment, see note IS Proc, § 384. L. R. A, 781. 813 § 602 CODE PLEADING AND PRACTICE. [Pt. Ill, lias been answered differently in different states. Many of the states have enacted statutes which dispense with the joinder of either the dormant or special partner.** In New Yofk, however, it would seem that a dormant partner is a necessary party plaintiff."^ But when one partner is a member of two firms, one of which sues the other, he may elect to be either plaintiff or defendant.^ An agreement to divide the gross earnings of a venture does not necessarily constitute the parties to it partners f actual intention is necessary to constitute a partnership inter se.^° Where one of the partners has died, the rule under the Code and at the common law was that the right remained in the surviving partners to sue on the firm demands, without joining the personal representatives of the deceased partner. The surviving partners might assign the firm demands, even to the representatives of the deceased, in which case the assignee would be the proper party plaintiff.^^ § 602. Persons authorized by statute. In all those cases in w^hich a statute gives a cause of action, and designates the person or persons who may sue, such per- son or persons alone may maintain an action thereunder.^ And we shall see presently- that when the statute author- 6 Mitchell V. Dall, 2 Harr. & G. As to what constitutes a part- (Md.) 159, 171; Clarkson v. Car- nership, see note 115 .\vn. St. Rep. ter, 3 Cow. (N. Y.) 84; Clark v. 414. Miller, 4 Wend. (N. Y.) 629; Sharing profits in a single ven- Leveck v. Shaftoe, 2 Esp. 468. ture constitutes a partnership. — T Secor V. Keller, 11 N. Y. Super. s o u 1 e v. Hayward, 1 Cal. 345; Ct. Rep. (4 Duer) 416. See Van Llewelyn v. Levi, 157 Cal. 31, 106 Valen v. Russell, 13 Barb. (N. Y.) Pac. 219. 590; Brown v. Birdsall, 29 Barb. ^^^^^ ^^ agreement to share (N. Y.) 549; Hurlburt v. Post, 14 ^^^^.^^^ ^^ ^^.^^^^ ^ partnership, see N. Y. Super. Ct. Rep. (1 Bosw.) ^^^^^ ^g ^_ r_ a. (N. S.) 963. 11 Brown v. Allen, 35 Iowa 306, 311; Boys v. Vilas, 18 Wis. 169. s Cole V. Reynolds, 18 N. Y. 74, 78. 9 Wheeler v. Farmer. 38 Cal; 203. i Romero v. Atchison, T. & S. F. 10 Id.; Hicks V. Post. 154 Cal. R- Co.. ll N. M. 679. 72 Pac. 37. 27, 96 Pac. 880. 2 See. post. § 612. 814 Ch, III.] PRINCIPAL AND AGENT. § 603 izes or empowers a person who has a claim or cause of action to authorize another to bring suit, such other can maintain an action for the use and benefit of the owner without an assignment of such claim or cause of action.^ The California Code of Civil Procedure provides that where a person is authorized by statute to sue, he may maintain an action without joining with him the person for whose benefit the action is prosecuted.'* Other pro- cedural codes have similar provisions. § 603. Principal and agent. The general rule of law is that where an agent has made a contract, either express or implied, in the name of the principal, the latter alone is the proper party to institute and prosecute an action thereon, being the ''real party in interest."^ A mere "naked agent" can not sue.- Thus, an agent who loans the money of his principal and takes the contract for repayment in the name of such principal, can not himself sue to recover back the money.^ If, on the other hand, the contract, whether verbal or written, is entered into by the agent, in his own name, without disclosing his principal, either the principal or the agent may sue thereon. And the same is true if the contract is entered into by the agent in his own name, and the fact of the 3 Watson V. Watson, 49 Mich. Tomlinson, 1 E. D. Smith (N. Y.) 540, 14 N. W. 489. 364; Fish v. Wood, 4 E. D. Smith 4 Kerr's Cyc. Cal. Code Civ. (N. Y.) 327. Proc, § 369. More than a "naked agent," as 1 See, ante, §§ 583 et seq. where he has advanced money on 2 Lineker v. Ayeshford, 1 Cal. the goods shipped to his principal, 75; Phillips v. Henshav/, 5 Cal. or the like, he can sue in his own 509; Tustin Fruit Assoc, v. Earl name. — Santillas v. Moses, 1 Cal. Fruit Co., 6 Cal. Unrep. 37, 53 Pac. 94. 693; Law v. Columbus Ins. Co., 2 Something more than mere N. Y. Code Rep. 65; St. John v. powers of naked agent requisite to Griffith, 2 Abb. Pr. (N. Y.) 198, 13 enable an agent to sue in his own How. Pr. 59; Stanton v. Camp, 4 name. — Bell v, Tilden, 16 Hun Barb. (N. Y.) 274; Haight v. Sah- (N. Y.) 346. ler, 30 Barb. (N. Y.) 218; Erickson 3 Swift v. Swift, 46 Cal. 266, 269; V. Compton, 6 How. Pr. (N. Y.) Chin Kem You v. Ah Joan, 75 Cal. 471; Union India Rubber Co. v. 124, 16 Pac. 705. 815 §604 CODE PLEADING AND PRACTICE. [Pt. HI, agency was known to the contracting parties at the time of the making of the contract." Thus an agent may main- tain an action on a promissory note payable to himself as agent.^ So also the real owner of goods may maintain an action concerning them in his own name, and parol evidence is admissible to show the agency.® § 604. Promissory notes — Plaintiffs in actions on. Under the rule of the procedural codes requiring an action to be brought and prosecuted in the name of the real party in interest,^ in actions on promissory notes the "real party in interest" by whom the action is to be brought and prosecuted is the party who is entitled to receive the money due thereon.^ The holder of such note 4 CAL. — Ruiz V. Norton, 4 Cal. 855, 358, 60 Am. Dec. 618, 4 Cal. 359; Crosby v. Watkins, 12 Cal. 88; Thurn v. Alta Tel. Co., 15 Cal. 472. IND.— Rowe V. Rand, 111 Ind. 206, 12 N. E. 377. IOWA— Frear v. Jones, 6 Iowa 169. MASS.— Buf- fum V. Chadwlck, 8 Mass. 103; Fi- field V. Adams, 33 Mass. (16 Pick.) 381; Tyler v. Freeman, 57 Mass. (3 Cush.) 261; Colburn v. Phillips, 79 Mass. (13 Gray) 64; Rhoades v. Rlackiston, 106 Mass. 334, 8 Am. Rep. 333. MINN.— Cremer v. Wim- mer, 40 Minn. 511, 42 N. W. 467. N. Y.— Ludwig V. Gillespie, 105 N. Y. 653, 1 Silv. Ct. App. 399, 11 N. E. 835, affirming 51 N. Y. Super. Ct. Rep. (19 Jones & S.) 310; Taintor v. Pendergast, 3 Hill (N. Y.) 72, 38 Am. Dec. 618; Hicks V. Whitmore, 12 Wend. 548; St. John V. Griffith, 2 Abb. Pr. 198, 13 How. Pr. 59; Morgan v. Keid, 7 Abb. Pr. 215; Van Lien v. Byrnes, 1 Hilt. 133. OHIO— Hall v. Paine, 14 Ohio St. 417. W. VA.— Dietz v. Providence-Washington Ins. Co., 31 W. Va. 851, 13 Am. St. Rep. 909, 8 S. E. 616. ENG.— Seins v. Bond, 5 Barn. & Ad. 389, 27 Eng. C. L. 168, 110 Eng. Repr. 834; Barn- stable V. Poole, 1 C, M. & R. 410; Usparicha v. Noble, 13 East 332, 104 Eng. Repr. 81; Higgins v. Senior, 8 Meis. & W. 834. 5 Ord V. McKee, 5 Cal. 515; Con- siderant v. Brisbane, 22 N. Y. 389; Reilly v. Cook, 13 Abb. Pr. (N. Y.) 255, 22 How. Pr. 93. 6 Union India Rubber Co. v. Tomlinson, 1 E. D. Smith (N. Y.) 364. 1 See, ante, §§ 583-587. 2 Foltier v. Schroeder, 19 La. Ann. 17, 92 Am. Dec. 521; Stevens V. Hannan, 86 Mich. 305, 24 Am. St. Rep. 125, 48 N. W. 951; Elm- quist V. Markoe, 45 Minn. 305, 47 N. W. 970; Cummings v. Morris, 25 N. Y. 625, affirming 16 N. Y. Super. Ct. Rep. (3 Bosw.) 560; Selden v. Pringle, 17 Barb. (N. Y.) 458, 460; Hastings v. McKinley, 1 E. D. Smith (N. Y.) 273; affirmed, 1 Sheld. Notes 173; Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; Buzzell v. Cummings, 61 Vt. 213, 18 Atl. 93. Note to bearer or payee, holder 816 ch. III.] PROMISSORY NOTES — PLAINTIFFS. §604 is presumed to be the o^vner, in the absence of evidence to the contrary, and prima facie entitles him to sue thereon.2 The fact that the plaintiff has not the actual possession of the note sued upon does not affect his rights to recover upon it, if he be the real owTier, althougli the note is in the possession of the defendant.^ Conversely the mere holder of a note, without an interest in or title thereto, can not maintain an action thereon.^ A party holding a promissory note, as trustee for him- self and others, may recover.^ So a bona fide indorsee may maintain suit thereon without setting up or proving assignment. — Bitzer v. Wagar, 83 Mich. 223, 47 N. W. 210. 3 CAL. — Gusher v. Leavitt, 5 Cal. 160, 63 Am. Dec. 116; Price v. Dun- lap, 5 Cal. 483 (payee suing is prima facie owner) ; McCann v. Lewis, 9 Cal. 246 (ownership prima facie shown by possession) ; Cor- coran V. Doll, 32 Cal. 82, 88; Curtis V. Sprague, 51 Cal. 239 (indorsee for collection can sue in his own name without joining real owner) ; Flanagan v. Brown, 70 Cal. 254, 259, 11 Pac. 706 (endorsee for col- lection may sue in own name) ; Eahns v. Crosier, 101 Cal. 260, 262, 35 Pac. 873 (allegation of endorse- ment sufficient to show endorsee's right to sue) ; Giselman v. Starr, 106 Cal. 651, 658, 40 Pac. 8 (payee suing prima facie owner). MD. — Herrick v. Brownside, 56 Md. 439. MONT.— Meadowcraft v. Walsh, 15 Mont. 544, 39 Pac. 914. N. Y.— Hays V. Hathom, 74 N. Y. 486; Farrington v. Park Bank, 39 Barb. 645; Mottram v. Mills, 3 N. Y. Super. Ct. Rep. (1 Sandf.) 37; James v. Chalmers, 7 N. Y. Super. Ct. Rep. (5 Sandf.) 52; affirmed, 6 N. Y. 209; Wiltsie v. Northam, 18 N. Y. Super. Ct. Rep. (5 Sandf.) 428. N. C. — Meadows v. Cozort, 76 N. C. 453 (indorsee suing prima facie owner) ; Robertson v. Dunn, 87 N. C. 191. OKLA.— Berry v. Barton, 12 Okla. 221, 66 L. R. A. 513, 71 Pac. 1074 (presumption of ownership in payee suing). FED. — Halstead v. Lyon, 2 McL. 226, Fed. Cas. No. 5968; Locket v. Davis, 3 McL. 101, Fed. Cas. No. 12203. See, also, ante, § 595; post, § 611. Note of wife, her separate prop- erty, may be sued by her alone, without joining her husband. — Cor- coran V. Doll, 32 Cal. 82. 4 Curtis V. Sprague, 51 Cal. 239; McClusky V. Gerhauser, 2 Nev. 47, 90 Am. Dec. 510; Selden v. Pringle, 17 Barb. (N. Y.) 458, 468; Hastings V. McKinley, 1 E. D. Smith (N. Y.) 273; affirmed, 1 Seld. Notes 173. 5 Parker v. Totten, 10 How. Pr. (N. Y.) 233; Clark v. Phillips, 21 How. Pr. (N. Y.) 87; Prall v. Hinchman, 13 N. Y. Super. Ct. Rep. (6 Duer) 351. 6 Palmer v. Goodwin, 5 Cal. 458; Hamilton v. McDonald, 18 Cal. 128; Fletcher v. Derickson, 16 N. Y. Super. Ct. Rep. (3 Bosw.) 181. See Parker v. Totten, 10 How. Pr. (N. Y.) 233; White v. Brown, 14 How. Pr. (N. Y.) 282; Clark v. Phillips, 21 How. Pr. (N. Y.) 87. I Code PI. and Pr.— 52 817 § 605 CODE PLEADING AND PRACTICE. [Ft. Ill, may recover.*^ Or the indorsee of a note for a considera- tion to be paid after collection may maintain action/ Indorsement of a note for collection is held to pass such title as enables the indorsee to sue in his own name, as the real party in interest.^ § 605. Quo WAERANTO USURPATION OF A FRANCHISE. The common- law writ of scire facias is abolished by the procedural codes, ^ and that function of the writ which was to ascertain and enforce forfeitures of corporate franchises or charters is now performed by the wiit of quo warranto. Such an action must be brought by the attorney-general or other public prosecuting officer- in the name of the state ;^ and the action may, and some- times must, be brought upon his own initiative, or upon the relation of a private individual,^ and where the action is brought upon the relation of a private party the attorney-general, or other public prosecuting officer, may require such indi\'idual to give security for costs."' The purpose of such a remedy is the protection of the pub- lic and the benefit of the community.® Where the inter- ests of the people at large are affected the action must be brought in the name of the people, in the manner above pointed out; but when the interests affected are re- stricted to a particular community, as to a city gi"antiiig a franchise to a street railway company to use the streets of the city, such city is a proper party plaintiff, under T Himnielman v. Hotaling, 40 Cal. i See Kerr's Cyc. Cal. Code Civ. Ill, 5 Am. Rep. 600; Harpending Proc, §802. V. Daniel, 80 Ky. 449; Elmquist v. 2 See Kerr's Cyc. Cal. Code Civ. Markeo, 45 Minn. 305, 47 N. W. Proc, 2d ed., §803; Consolidated 970. Potter v. Chadsey, 16 Abb. Supp. 1906-1913, p. 1627. Pr. (N. Y.) 146; Cummings v. Mor- 3 ,, ris, 16 N. Y. Super. Ct. Rc-p. (3 Bosw.) 560. *^'^- 8 Cummings v. Morris, 25 N. Y. ^ I^-. § 810- 625. 6 See Toncray v. Budge, 14 Idaho 9 See authorities cited, post, 621, 95 Pac. 26. §610. 818 ell. III.] USURPATION OF OFFICE. § 606 a statute" autliorizing such action to be brouglit and maintained by any person claiming an interest adverse to the franchise of such street railway, which is the sub- ject of the action;^ but under a statute in such case pro- viding that the action may be commenced and prosecuted by the prosecuting attorney of the proper county,^ he must show that the action is instituted and prosecuted at the request of the municipal authorities of the city aggrieved.^® § 606, Usurpation of office. What has been said in the preceding section relative to the commencement of an action in the nature of quo warranto for the usurp- ation of a franchise, applies also in such an action based upon the usurpation of an office ; and the attorney-general may bring the action on behalf of the people to test an incumbent's right to hold the office, although the statute confers upon any elector of the county the right to con- test the incumbent's election;^ because the proceeding is for the protection of the general public and the benefit of the particular community, rather than for the grati- fication or protection of any particular individual in the community, except for the protection of the person en- titled to the office.- The person entitled to the office may join in the proceeding with the people;^ and while he must obtain the consent of the attorney-general, and the people, eo nomine, are parties to the writ, such party, as 7 As Kansas Gen. Stats. 1901, 2 Toncray v. Budge, 14 Idaho § 5150. 621, 95 Pac. 26. 8 See Olathe, City of. v. Missouri Contrary to purpose of writ of & K. Interurban R. Co., 78 Kan. ^^^ warranto, or its modern form 193 96 Pac 4'> °^ ^ '^^'^^ *^ ^^^® nature of quo war- ranto, to allow the action to be V. As in Washington, Ball. Ann. y^^ought and prosecuted by any and Codes & Stats., § 5781. gygj.y elector.— Toncray v. Budge, 10 State ex rel. Attorney-General 14 Idaho 621, 95 Pac. 26. V. Seattle Gas & Electric Co., 28 3 people ex rel. Crane v. Ryder. Wash. 488, 68 Pac. 946, 70 Pac. 114. 12 N. Y. 433; People ex rel. Hawes 1 People ex rel. Budd v. Holden, v. Walker, 23 Barb. (N. Y.) 304, 2 23 Cal. 123. Abb. Pr. 421. 819 § 60G CODE PLEADING AND PRACTICE. [Pt. Jli. relator, is none the less the real party in interest, the object of the proceeding being to carry out and enforce any final judgment in his favor.^ It has been said that a defeated candidate, though not entitled to the office, may, under the Colorado code,' maintain the proceeding against an opponent who is entitled to the office,*^ and the court may determine whether the respondent is rightfully entitled to exercise the functions of the office •'' but under other statutes a different rule prevails. "^ The ineligibility of the successful candidate does not give a minority can- didate any claim to the office. '^ While a writ of quo war- ranto is a writ of grace, and not a writ of right, which can be obtained by permission of attorney-general only,^^ yet it has been said that where the attorney-general refuses to act, a person claiming to have been elected to an office may, by leave of court, bring quo warranto on his own relation, in those cases where he has no other remedy. ^^ And a relator not claiming the office, it has been said, may, by leave of the court, become relator, where he is acting in good faith.^- 4 People ex rel. McCarty v. Wil- Pac. 668; Heney v. Jordan (Cal.), son, 6 Cal. App. 122, 91 Pac. 661. 175 Pac. 402; Campbell v. Free, 7 5 Colo. Civ. Code, § 289. Cal. App. 151, 93 Pac. 1060; Wood 6 Londoner v. People, 15 Colo. v. Bortling, 16 Kan. 109; Privett v. 557, 26 Pac. 135. Bickford, 26 Kan. 52, 40 Am. Rep. 7 Dunton V. People ex rel. Aiken, 301; Hudson v. Conklin, 77 Kan. 36 Colo. 128, 87 Pac. 540; People 764, 93 Pac. 585; Sanders v. Rice, ex rel. Stoop v. Lawson, 36 Colo. Attorney-General (R. I.), L. R. A. 442, 87 Pac. 543; People ex rel. 1918C, 1153, 102 Atl. 914. See Amos V. Burrell, 36 Colo. 444, 87 notes 124 Am. St. Rep. 211-219; 13 Pac. 543. L. R. A. (N. S.) 1013-1016; L. R. A. 8 State ex rel. Clawson v. Bell, 1918C, 1157-8. 169 Ind. 61, 124 Am. St. Rep. 203, lo Lambe v. Webb, 151 Cal. 451, 13 L. R. A. (N. S.) 1013, 82 N. E. 91 Pac. 646; De Vigil v. Stroup, 69; Hudson v. Conklin, 77 Kan. 15 N. M. 544, 110 Pac. 830. 764, 93 Pac. 585. n State ex rel. McMillan v. Sad- 9 Saunders v. Haynes, 13 Cal. ler, 25 Nev. 131, 83 Am, St. Rep. 145; Searcy v. Grow, 15 Cal. 118; 573, 58 Pac. 284. Crawford v. Dunbar, 52 Cal. 36; 12 Bonynge v. Frank, 89 N. J. L. People ex rel. Drew v. Rodgers, 239, Ann. Cas. 1918D, 211, 98 Atl. 118 Cal. 393, 396, 46 Pac. 740, 50 456. 820 ell. III.] ACTIONS BY STATE, ETC. §§ 607, 608 § 607. Sheriff — Action by. A sheriff who has levied an attachment, by virtue of proceedings therefor and the process, can not maintain an action in his own name for the recover}' of the debt upon which the attachment was issued and levied.^ § 608. State or United States — Actions by. The attorney-general of the state may file an information in the nature of a bill in chancery, to annul a patent to lands granted by the state to an individual, in a case in which the matter involved in the suit immediately con- cerns the rights and interests of the state. ^ In an action to annul a patent for land, the state as well as persons having a right to the land may be joined as plaintiffs ;- but if the state has no interest in the matter, the action can not be sustained.^ Actions for the recovery of an auctioneer's duty are properly brought in the name of the state.* The United States of America can sue in that name in chancery without putting forward any public officer who could be called on to give discovery on a cross- bill.^ As to parties plaintiff in quo See Wilson v. Castro, 31 Cal. 420, warranto, see note Ann. Cas. 427; Gill'^spie v. Gouly, 152 Cal. 1918D 214 6^3' 6^'*' ^3 P^c- ^^'^'' Toomey v. o , , xi Tc ,u J 1 /^ 1 1A' Knobloch, 8 Cal. App. 585, 587, 97 1 Sublette v. Melhado, 1 Cal. lOo. ' f i . i Pac. 530. 1 People ex rel. Pixley v. Strat- ^^^^^^^ ^^^^, ^^ ^^^, ^^^ ^^ ton, 25 Cal. 242, 245; People v. named.— People ex rel. Pixley v. Gold Run Ditch & Min. Co., 66 Cal. stratton, 25 Cal. 242; State ex rel. 138, 152, 56 Am. Rep. 80, 88, 4 Pac. Detienne v. Vandalia, City of, 119 1152; People ex rel. Love v. Cen- Mo. App. 406, 419, 94 S. W. 1009, ter, 66 Cal. 551, 566, 5 Pac. 263, 6 1013 ; state v. Franklin, 133 Mo. Pac. 481; People v. Truckee Lum- App. 486, 493, 113 S. W. 652. her Co.. 116 Cal. 397, 402, 58 Am. 3 People ex rel. Pixley v. Strat- St. Rep. 183, 39 L. R. A. 581, 48 ton, 25 Cal. 242, 244. Pac. 374; People v. Oakland Water 4 state v. Poulterer, 16 Cal. 514; Front Co., 118 Cal. 234, 239, 50 Pac. affirmed on rehearing, January 305. Term, 1861, not reported, cited in 2 People ex rel. Pixley v. Strat- State v. Conklin. 19 Cal. 501, 509. ton, 25 Cal. 242, 244; People ex 5 United States of America v. rel. Pierce v. Morrill, 26 Cal. 336. Wagner, L. R., 2 Ch. App. Cas. 582. 821 §§ 609, 610 CODE PLEADING AND PRACTICE. [Ft. Ill, § 609. Suits against fire departments — In Califor- nia. The California Code of Civil Procedure provides that all causes of action upon contract, arising out of or pertaining to the administration of a fire department created by acts of the legislature of the state, shall be brought directly by the municipality in which the fire department is situated, in its corporate name.^ § 610. Sureties as plaintiffs. A surety on a note or on an undertaking, who had paid the amount of his lia- bility, is entitled to recover back the amount;^ but where the principal appeals and afterwards secures a reversal of the judgment of his creditor, the surety can not recover the amount paid from the judgment creditor.^ Co-sureties who pay the debt of their principal by giving their joint and several notes therefor, must join in a suit against him for reimbursement.^ A surety paying a debt for which 1 Kerr's Cyc. Cal. Code Civ. Proc, § 390. 1 See Nabors v. Camp, 14 Ala. 460; Williams v. Simmons, 22 Ala. 425; Gerard v. Knapp, 26 111. App. 307; Lodge v. Boone, 3 Har. & J. (Md.) 218; Kalmbach v. Foote, 79 Mich. 236, 44 N. W. 603; Jewitt v. Crane, 13 Abb. Pr. (N. S.) 97, 35 Barb. 208; Garr v. Martin, 1 Hilt. (N. Y.) 358; Hirsh v. Hunger, 3 Thomp. & C. (N. Y.) 290; Boling V. Young, 38 Ohio St. 135. Alteration of note furnishing surety a good defense, does not necessarily entitle him to recover back the money paid before he dis- covered such alteration. — Blakey V. Johnson, 76 Ky. (13 Bush) 197, 26 Am. Rep. 254. Can not declare in tort in action to recover back money paid, in or- der to evade the bankruptcy laws. — Ledbetter v. Torney, 33 X. C. 294. Joint and several bond executed by principal and surety, payment by surety extinguishes bond and surety can not sue thereon to re- cover back the money paid. — Cris- field V. State, 55 Md. 192. See Chester v. Bank of Kingston, Ifi N. Y. 336, affirming 17 Barb. 271. Payment made under mistake of fact may be recovered back.— Cox v. Hill, 73 Tenn. (5 Lea) 146. See Pass V. Grenada County, 71 Miss. 426, 14 So. 447. Surety of bank cashier paying note given to replace moneys lost through laches of cashier can not recover it back. — Marigny v. Union Bank, 12 Rob. (La.) 283. 2 Garr v. Martin, 20 N. Y. 306. 3 See Chandler v. Brainard, 31 Mass. (14 Pick.) 285; Doolittle v. Dwight, 43 Mass. (2 Mete.) 561; Appleton V. Bascom, 44 Mass. (3 Mete.) 169. 822 eh. III.] TRUSTEES OF AN EXPRESS TRUST. ^611 several persons are liable in distinct proportions, as prin- cipals, must proceed by a several action against each upon an implied assumpsit.* § 611. Tkustees of an express TRUST — In land : Real PAETY IN INTEREST. It is especially provided in California, and a similar provision is found in other procedural codes, that a trustee of an express trust may maintain an action affecting the subject-matter of the trust without joining his cestui que trust, or the "real party in inter- est" for whose benefit the action is prosecuted, with him in the action.^ This rule applies with especial force in those cases in which the subject-matter of the trust is real estate, and the relation is created by deeil inter partes,^ by appointment of a court,^ or by operation of law;* and that, too, whether the cestui que trust is a corporation or a voluntary religious'' or other associa- 4 Chipman v. Morrill, 20 Cal. 130. 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 369. 2 Life tenant as trustee holding proceeds of estate under agree- ment that the proceeds should be distributed among others at her death, may maintain action with- out joining such others as plain- tiffs. — Nicholson v. Nicholson, 83 Kan. 223, 109 Pac. 1086. Trustee holding under power to sell, has no implied power to main- tain an action in his own name to enforce payment. — Nelson v. Eaton, 7 Abb. Pr. (N. S.) 305. But see Nelson v. Eaton, 26 N. Y. 410, 16 Abb. Pr. 113. Trustee under will suing to re- cover trust fund in hand of another must establish the will in the local jurisdiction before he can main- tain his action. — Curtis v. Smith, 6 Hlackf. 537, Fed. Cas. No. 3505. 3 Appointed by court of another state, trustee may maintain suit in relation to the trust property. — Pennington v. Smith, 69 Fed. 188; Toronto General Trust Co. v. Chi- cago, B. & Q. R. Co., 123 N. Y. 37. 25 N. E. 198, reversing 54 Hun (N. Y.) 641, 4 N. Y. Supp. 726; Bradford v. King, 18 R. I. 743, 31 Atl. 166. 4 See discussion, ante, § 596. Purchaser of real property at execution sale who receives the sheriff's deed in his own name, but in reality for the benefit of an- other, is a trustee of an exi)ress trust, and may sue the tenant in possession for the value of the use and occupation, without join- ing the person for whose benefit the purchase was made. — Wallvpr V. McCusker. 71 Cal. 595. r. As to numerous parties, see, ante, § 395. 823 § 612 CODE PLEADING AND PRACTICE. [Pt. Ill, tion.*' But the rule is not confined to express trusts involv- ing real estate. ^ 612. In ' * THING IN ACTION, ' ' ETC. : Real. pakty in INTEREST. The exception to the general rule of the Code requiring that all actions shall be instituted and prose- cuted by the ''real party in interest, "^ set out in the preceding section, is not restricted to express trusts in real estate, but was manifestly intended to include all cases in which a person, acting in behalf of another, enters into a written, express contract with a third per- son, either in his individual name without disclosing his agency and without description, or in his own name, expressly in trust for, or on behalf of, or for the benefit of, another, by whatever form of expression such trust is declared,- — although not technically what would, at common law, have been called a ''trustee of an express trust, ' '^ — and he may maintain a suit upon such contract in his own name, under the above provision of the Cali- fornia code, and under similar provisions in other pro- cedural codes,-* although there are cases holding the contrar}^^ We have already seen that where the agent « Shipton V. Norrid, 1 Colo. 404. N. W. 335. MO.— Harrigan v. 1 See, ante, §§ 583-587. Welch, 49 Mo. App. 496. N. Y.— 2 Considerant v. Brisbane, 22 Considerant v. Brisbane, 22 N. Y. N y 389 389; Melcher v. Kreiser, 28 App. 3Cremer v. W^immer, 40 Minn. Div. 362, 51 N. Y. Supp. 249; 511, 42 N. W. 467. Schipper v. Milton, 51 App. Div. 4 See, among many other cases: 522, 64 N. Y. Supp. 935; affirmed, CAL. — Walker v. McCusker, 71 169 N. Y. 583, 62 N. E. 1100; Ladd Cal. 594, 12 Pac. 723; Anson v. v. Arkell, 37 N. Y. Super. Ct. Rep. Townsend, 73 Cal. 415, 419, 15 Pac. (5 Jones & S.) 35. S. D.— Bran- 49; Giselman v. Starr. 106 Cal. non v. White Lake Township, 17 657, 40 Pac. 8; Los Robles Water S. D. 83, 95 N. W. 284. FED — Co.'v. Stoneman. 146 Cal. 204, 79 Albany & R. Iron & Steel Co. v. Pac. 880; Anglo-California Bank v. Lunberg, 121 U. S. 451, 30 L. Ed. Cerf. 147 Cal. 384, 81 Pac. 1077; 982, 7 Sup. Ct. Rep. 958; Weed Tandy v. Walsch, 154 Cal. 108, 97 Sewing Machine Co. v. Wicks, 3 Pac. 69. MINN.— Cremer v. Wim- Dill. 261; Fed. Cas. No. 17348. mer, 40 Minn. 511, 42 N. W. 467; 5 See, among other cases, Rav-- Close V. Hodges, 44 Minn. 204, 46 lins v. Fuller, 31 Ind. 255; Mitchell 824 eh. III.] TRANSFER FOR COLLECTION. § 612 contracts in the name of his princlj)al, he can not main- tain a suit on the contract.*' The various relations in which a person becomes the trustee of an express trust are so numerous that they can not be discussed and the cases cited in this connection, and we must be content with a reference to where the cases are collected.'^ Endorsement and transfer, merely for collection, with- out parting with the title and interest therein, has been held to pass such a prima facie title as to enable the holder thereof to maintain a suit thereon as the "real party in interest";^ but this construction of the pro- cedural codes is thought to be open to criticism on funda- mental grounds,^ especially in those instances in which the doctrine is carried to the extent of preventing the defendant from defending on the ground that the plain- tiff is not the real party in interest and shutting out evidence that he is not the owner.^" V. St. Mary, 148 Ind. Ill, 47 N. E. 7 See note 41 L. R. A. (N. S.) 224; Chapman v. McLawham, 150 641. N. C. 166, 63 S. E. 721. s See, ante, § 585. 6 See, ante, § 603. 9 Id. 10 See, ante, § 585, footnote 7. 825 CHAPTER IV. PABTIES PLAINTIFF IN ACTIONS EX DELICTO. § 613. In general. § 614. Joinder of parties plaintiff. § 615. Injury to and conversion of personal property. § 616. Injury to real property — In general. § 617. As to possession or title giving right of action : Illustrations. § 618. Action by tenant. § 619 Action by tenant for years or life-tenant. § 620. Joinder of remainder-man and tenant. § 621. Injuries to the person. § 622. Injuries to married women — In general. § 623. Under California code. § 624. No limitation as to kinds of actions, § 625. Injuries to minor child or servant — Action by parent, or master. ^ 626. Action by minor or servant. § 627. Real and mixed actions — Ejectment. § 628. Seduction : Action for — At common law. § 629. Under procedural codes — In general. § 630. By parent, guardian or master. § 631. By unmarried female. § 613. Ix GENERAL. We have already discussed the characteristics and distinctions of actions ex contractu and actions ex delicto/ and it remains but to add in this place that actions in the form ex delicto are for injuries (1) to the absolute or relative rights of persons; (2) to personal property; and (3) to real property. The proper party plaintiff in such action is the one who has suffered the injury, he being the real party in interest. This was the rule at common law, and it has remained substan- tially unchanged by the procedural codes. The principal 1 See, ante, §§ 4, 525. 826 ch. IV.] JOINDER OF PLAINTIFFS — ACTIONS EX DELICTO. § 614 changes made by sucli codes, and by statute in other states, in respect to this class of actions, are those relating to the death or injury to the person of adults or minors, caused by the wrongful act or neglect of another,- and those relating to seduction.^ The procedural codes have also made several imjDortant changes in regard to parties plaintiff in this class of actions by permitting assign- ments of certain causes of actions sounding in tort. Many questions have arisen, growing out of the nature of the injury which is the subject-matter of the action, and of the relations held (1) to the property affected, or (2) by or to the person who has suffered, and the decisions of the courts thereon modify, to some extent, the application of the general rule as to parties plaintiff in actions sound- ing in tort. <^ 614. Joinder of parties plaintiff. The rules as to the joinder of parties plaintiff in actions ex contractu, which have already been discussed,^ also apply equally in actions sounding in tort, the old equity rule which per- mits all persons having an interest in the subject of the action and the relief demanded to be made parties plain- tiff, having been adopted in terms in the procedural codes.- On such joinder judgment may be given in favor of any one or more of the plaintiffs and against the others,^ the same as in actions sounding in contract. The limits of this treatise will not permit a discussion in detail of all the instances that have arisen in practice, and a citation of the cases ; but an effort is made to give a suffi- cient number of the instances, with the supporting cases, to show the general applications of the code rules as to parties plaintiff in actions of this character. 2 As to death from negligent or i See, ante, §§ 591-595. wrongful act of another, see, ante, 2 Bliss on Code Pleading, § 24. §§ 561, 562. 3 Id. a See, post, §§ 628-631. 827 § 615 code pleading and practice. [pt. hi, § 615. Injury to and conversion of personal prop- erty. In the case of a wrongful conversion of personal property, an action for the recovery of the possession thereof must be brought by and in the name of the person who is entitled to the immediate possession thereof, either as the general owner,^ or as having a special property or interest therein f and such person must recover, if at all, upon the streng-th of his own right to immediate posses- sion, and not upon the weakness of the defendant's title.^ Thus it has been said that the lessor of personal prop- erty, — e. g., sheep, — can not maintain trespass or trover for a conversion or an injury done to the property by a stranger during the term of the lease, and while the lessee has the actual possession of the property, because such owner-lessor has neither the possession nor the right to the immediate possession ;^ although it has been held, on the other hand, that the owner of propertj^ which has been disposed of to another under a conditional sale may 1 See Green v. Burr, 131 Cal. able him to maintain an action 236 63 Pac 360; Humbert v. against a third person for the re- Mason, 46 Colo. 430, 104 Pac. 1037. covery of the possession thereof Refusal of carrier to deliver Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198. goods as converslon.-0'Donnell V. purchaser of goods left in pos- Canadian Pac. R. Co., 109 Me. 500, ggggjon of seller, subject to lien 50 L. R. A. (N. S.) 1172, 84 Atl. ^^^ unpaid purchase-money, can 1002 and note. no^. maintain an action of trover li Glass V. Basin & Bay State against one who wrongfully re- Min. Co., 31 Mont. 21, 77 Pac. 302; moved them.— Lord v. Price, L. R. Frame v. Oregon Liquor Co., 48 9 ex. 54. Ore. 272, 85 Pac. 1009, 86 Pac. 791; gee Kerr's Benjamin on Sales, Pacific Live Stock Co. v. Isaacs, yol. 2, 984 (*670). 52 Ore. 54, 96 Pac. 460; Standard 3 Van Zandt v. Schuyler, 2 Kan. Furniture Co. v. Van Alstine, 31 App. 118, 43 Pac. 295. Wash. 499, 72 Pac. 119; Herman 4 Triscony v. Orr, 49 Cal. 612; v. Northern Pac. R. Co., 43 Wash. Cardinell v. Bennett, 52 Cal. 476; 624, 86 Pac. 1068. Yukon River Steamboat Co. v. Authority to sell personal prop- Gratto, 136 Cal. 538, 542, 69 Pac. erty and collect the proceed&, does 252; Clarkson v. Stevens, 106 not invest a person with such a U. S. 505, 27 L. Ed. 139, 1 Sup. Ct. special interest therein as will en- Rep. 200. 828 ell. IV.] INJURY, ETC., TO PERSONAL PROPERTY. § G15 maintain an action of claim and delivery after such sale has been rescinded, because such owner never parted with the title or the right of possession, and had a right to the immediate possession of the property.^ In the case of an injury to personal property, an action may be maintained against the wrongdoer either (1) by the general owner thereof, whether he is entitled to the immediate possession or not, and if he is not entitled to the immediate possession, — e. g., where the property is in the hands of a bailee or lessee, — he may recover to the extent of the injury to his revisionary interest;' (2) by the person having the possessory title, and his recovery for his special injury will not bar or otherwise affect the right of action by the general owner ;^ and (3) by the party in possession, who is answerable to the general owner, who may sue for the full value of the property injured, but if he recover the full value, the o^\^ler can not maintain an action for the injury, and vice versa. ^ Two or more joint owners of the property which is the subject-matter of the action, all must be joined as plain- sRodgers v. Bachman, 109 Cal. Hall v. Robinson, 2 N. Y. 293; 552, 42 Pac. 448; Kellogg v. Burr, Wheeler v. Lawson, 103 N. Y. 40, 126 Cal. 38, 41, 58 Pac. 306; Hark- 8 N. E. 360; Van Hassel v. Bor- ness V. Russell, 118 U. S. 663, 30 den, 1 Plilt. (N. Y.) 128; Cass v. L. Ed. 285, 7 Sup. Ct. Rep. 51. New York & N. H. R. Co., 1 E. D. 6 Letting horse on Sunday for Smith (N. Y.) 522; McGinn v. pleasure drive, in violation of stat- Worden, 3 E. D. Smith (N. Y.) ute, does not preclude recovery for 355; Harrison v. Marshall, 4 E. D. injuries from over driving. — Hin- Smi^h (N. Y.) 271; Paddon v. Will- kle V. Pruitt, 151 Ky. 34, L. R. A. ian>, 24 N. Y. Super. Ct. Rep. (1 1915F, 644, 151 S. W. 43. Rob.) 340, 2 Abb. Pr. (N. S.) 88; As to liability for damages for Kemp v. Seely, 47 Wis. 687, 3 conversion of or injury to property N. W. 830. leased or hired in violation of 8 1 Chitty on Pleading (16th Am. Sunday law, see note L. R. A. ed.), p. 62; Winkfield, The, L. R. 1915F, 644. (1902), p. 42; 3 Brit. Rul. Cas. 368. 7 1 Chitty on Pleading (16th Am. As to right of bailee to recover ed.), p. 61. See Wiggins v. Mc- for conversion of or injury to prop- Donald, 18 Cal. 126; I.aing v. Nel- erty, see note 3 Brit. Rul. Cas. 388. son. 41 Minn. 521, 43 N. W. 476: o Adams v. Childers, 10 Mo. 778. 829 §616 CODE PLEADING AND PRACTICE, [Pt. HI, tiffs. ^<> And while it is true in actions sounding in tort as well as in actions sounding in contract^ ^ that the action must be commenced and prosecuted in the name of the real party in interest/- yet it has been said that where the injury complained of consisted in the destruction of the property by fire, and the loss was only partially covered by the insurance, the owner may join the insur- ance company in an action against the party wrongfully causing the injury and loss.^^ § 616. Injury to real, property — In general. Where the wrong complained of is a trespass upon real property, which primarily is an injury to the possession, if the action be maintained for the direct wrong, the present injury to the possession, the action may be brought and prosecuted by the person in possession,^ unless he hold for another as servant or agent, in which case the action must be brought and prosecuted by the principal or owner.- Where the person in possession is a tenant, or 10 See, ante, §598; Dubois v. such an action; the fact that it is Glaub, 52 Pa. St. 238; De Wolf v. adverse to the defendant is suf- Harris, 4 Mas. 515, Fed. Cas. No. ficient. — Beaufort Land & Invest- 4221. ment Co. v. New River Lumber See, ante, § 598. Co., 86 S. C. 358, 30 L. R. A. (N. S.) 11 See, ante, §§ 583, 587. 243, 68 S. E. 637. 12 Wiggins V. McDonald, 18 Cal. As to character of title or pos- 126. session of plaintiff necessary to 13 Lake Erie & W. R. Co. v. sustain action for trespass, see Hobbs, 40 Ind. App. 511, 517, 81 note 30 L. R. A. (N. S.) 243. N. E. 90, 92. As to action by tenant, see, post, 1 Boss V. W^est, 110 Ga. 698, 36 § 618. S. E. 244; Hall v. Deaton, 24 Ky. As to action by life tenant, see. L. Rep. 314, 68 S. W. 672; Crate post, § 619. V. Strong, 24 Ky. L. Rep. 710, 69 2 1 Chitty's Pleading (16th Am. S. W. 957; Davenport v. Newton, ed.), p. 62; Maddox v. State, 122 71 Vt. 11, 42 Atl. Rep. 1087; Clay Ala. 110, 26 So. 305: Coppage v. V. St. Albans, City of, 43 W. Va. Griffith, 19 Ky. L. Rep. 459, 40 539, 64 Am. St. Rep. 883, 27 S. E. S. W. 908; Casey v. Mason, 8 Okla. 368^ 665, 59 Pac. 252. See, also, post, § 617. Owner not in present possession, Character of title of tenant can and never having been in posses- not be determined by the court in sion, may maintain action when.— 830 ch. IV.] INJURY TO REAL PROPERTY. §616 the holder of a particular estate, and the injury com- plained of is of a permanent character, and such as to affect the inheritance, or the estate of the immediate revisioner or remainder-man, the action may be brought and prosecuted by the owner of such next estate or in- heritance,^ either (1) for damages for the trespass, or (2) to enjoin the continuance of the wrongful act,* not- withstanding the possession of the tenant;^ but the remainder-man recovers for his own damage only.^ Thus the equitable owner, in possession, may maintain an action for damage to the freehold;'^ or he may sue for Percival v. Chase, 182 Mass. 371, 65 N. E. 800. Owner of unoccupied lands may sua for trespass. — Russell v. Meyer, 7 N, D. 335, 47 L. R. A. 637, 75 N. W. 262. State seeking to recover for tres- pass upon lands previously grant- ed, must show that it has recov- ered possession in some regular manner. — State v. Evans, 33 S. C. 184, 11 S. E. 679. 3 1 Chitty's Pleading (16th Am. ed.), p. 63. 4 Van Deusen v. Young, 29 Barb. (N. Y.) 9 (modified as to method of estimating damage in 29 N. Y. 9); Ulrich v. McCabe, 1 Hilt. (N. Y.) 251; Lamport v. Abbott. 12 How. Pr. (N. Y.) 340; Cowland v. Meyers, 99 N. C. 198, 6 S. E. 82; Dorsey v. Moore, 100 N. C. 41, 6 S. E. 270; Bailey v. Chicago, M. & St. P. R. Co., 3 S. D. 531, 19 L. R. A. 653, 54 N. W. 596; University v. Tucker, 31 W. Va. 621, 8 S. E. 410. Damage to easement of abutting owners to be caused by future run- ning of trains to be included in al- ternative damages in lieu of in- junction. — Sperb V. Metropolitan Elev. R. Co., 137 N. Y. 155, 20 L. R. A. 752, 32 N. E. 1050. See Herman v. Manhattan R. Co., 58 App. Div. (N. Y.) 369, 373, 68 N. Y. Supp. 1020; Purdy v. Manhattan P.. Co., 3 Misc. (N. Y.) 50, 51, 22 N. Y. Supp. 943 (injury to easement of light and air to be considered in fixing damages). Easement, aside from damage to land, has only nominal value, and consequential damages may be oft- set by advantages. — Livingston v. Metropolitan Elev. R. Co., 138 N.Y. 76, 78, 33 N. E. 732. 5 Crowder v. Fordyce Lumber Co., 93 Ark. 394, 125 S. W. 417. See authorities fully collected in note L. R. A. 1916A, 793-799. 6 Nashville, C. & St. L. R. Co. v. Heikens, 112 Tenn. 378, 65 L. R. A. 298, 79 S. W. 1038 (value of lease- hold to be deducted) ; Jordan v. Benwood, 42 W. Va. 312, 57 Am. St. Rep. 859, 36 L, R, A. 519, 26 S. E. 266. 7 Rood V. New York & E. R. Co.. 18 Barb. (N. Y.) 80; Foster Lum- ber Co. V. Arkansas Valley & W. R. Co., 20 Okla. 583, 588, 30 L. R. A. (N. S.) 235, 95 Pac. 224; Russell v. Meyer, 7 N. D. 335, 47 L. R. A. 637. 75 N. W. 262. As to sufficiency of equitable 831 § 617 CODE PLEADING AND PRACTICE. [Pt. Ill, trespass.^ On the same principle, the owner, redeeming from a sale under execution, may sue for waste inter- mediate between the sale and his redemption.^ So also an action can be maintained by the mortgagee of real estate to recover damages for wrongful and fraudulent injuries done to the mortgaged property, by which the security of the mortgage has been impaired.^" § 617. As TO POSSESSION OR TITLE GIVING RIGHT OF ACTION : Illustration. A person suing for damages for the wrongful injury to or trespass upon real property must show some title, or some interest in the property, at the time of the wrongful act complained of, before he is entitled to maintain the suit or to recover for the alleged wrongful act.^ Thus, a landlord out of possession can not maintain an action for trespass quare clausum for any mere injury to the possession, and not affecting the in- heritance or reversion ; because such an action, being for injury to the possession, must be brought and maintained by the person who was entitled to the possession at the time of the wrongful act, and whose possession has been injured.- The bare possession of real property gives the right of action against any one who wrongfully interferes with that possession.^ Thus the actual occupant of lands title to sustain action for trespass, to the possession; the action must see note 47 L. R. A. 637. be brought and prosecuted by the s Hansee v. Hammond, 39 Barb. P^^^o" ^^^^e possession was in- (N. Y.) 89; Safford v. Hynds, 39 Jured.-Look v. Norton, 94 Me. 547, Barb. (N. Y.) 625; Pierce v. Hall, ^^ ^^^- ^^'^• 41 Barb. (N. Y.) 142; Sparks v. '^^^^' City of, v. Shropshire, Leavy, 24 N. Y. Super. Ct. Rep. (1 ^^ Ga. 93, 37 S. E. 168 Rob.) 530, 19 Abb. Pr. 364; Russell ' ^^^^^ ^- bailey, 94 Me. 50 46 V. Meyer, 7 N. D. 335, 47 L. R. A. ^tl. 789; Look v. Norton. 94 Me. K07 7^ M W 9R9 547, 48 Atl. 117. 637, 70 N. W. 262. ^ ^^^^ ^ ^^^^^ ^^^ ^^ ^^^^ 3^ 9 Thomas v. Crofut, 14 N. Y. 474. g ^ 244; Davenport v. Newton, 71 10 Robinson v. Russell, 24 Cal. vt. 11, 42 Atl. 1087. 472. Mere possession suflRcient as Mortgagee out of possession can against a stranger entering with- not maintain an action of trespass out right.— Davenport v. Newton, quare clausum for any mere injury 71 Vt. 11, 42 Atl. 1087. 832 ch. IV.] POSSESSION ESSENTIAL TO ACTION. § 617 may maintain an action for a trespass interfering with the possession,^ even though such occupancy be without tith' or right, where it is adverse.^ While an actual or constructive possession is necessary to confer the right of action,*' a mere constructive possession emanating from a legal title is sufficient/ An executor or administrator could not maintain the action under the common law, but many of the procedural codes and statutes have con- ferred upon such persons a right to maintain the suit in their representative capacity;'^ and an executor empow- ered and directed by will to sell and convey specified real estate, and to distribute the proceeds, may maintain an action for trespass upon or injury to such real estate.^ A homestead entryman has such possession and title as confers upon him the right to maintain an action for a trespass interfering with his right of possession or inter- est in the land,^° and particularly is this so where he made his entry under the United States homestead laws and has received a receipt of his entry from the receiver of the land office. ^^ A husband and wife occupying the premises, he, as the head of the family, may maintain an action for a trespass.^- A licensee may maintain an action foi- trespass, although his license is by parol. ^^ A married woman in possession of her separate property, although the legal title is vested in a trustee for her benefit, may maintain an action for trespass upon or injury to the 4 Stahl V. Grover, 80 Wis. 650, lo Gulf. C. & S. F. R. Co. v. 50 N. W. 589. Clark, 2 Ind. Tr. 319, 51 S. W. 962; 5 Farmer v. Lyons, 87 Ky. 422, 9 Matthews v. O'Brien, 84 Minn. 505, S. W. 248. gg N W. 12; Culbertson Irr. & cNewcomb v. Love, 112 Mich. water-Power Co. v. Olander, 51 115, 70 N. W. 443. ^^^_ 539^ ^^ j^_ ^y 298. 7 Coppage V. Griffith, 19 Ky. L. Rep. 459, 40 S. W. 908; High's Heirs v. Pancake, 42 W. Va. 602, 26 S. E. 536. s Conklin V. Alabama & V. R. ^- ^^^^ ^- Hicks, 129 Mo. 99, 31 Co., 81 Miss. 152, 32 So. 920. S. W. 35. 'J Duff's Exr. V. Duff, 21 Ky. L. 13 Miller v. Greenwich Town- Rep. 1211, 54 S. W. 711. ship, 62 N. J. L. 771, 42 Atl. 735. I Code PI. and Pr.— 53 §33 11 Gulf, C. & S. F. R. Co. V. Clark, 2 Ind. Ter. 319, 51 S. W. 962. § 617 CODE PLEADING AND PRACTICE. [Pt. Ill, property.^* Possession without title confers the right to maintain an action against a mere naked trespasser,^^ where the possession is adverse and exchisive to a well- defined boundaiy.^^ The possession of real estate for fifteen years gives a prima facie title thereto sufficient to authorize the possessor to maintain an action for in- jury to the possession by an adverse claimant.^^ A right to possession entitles a party to maintain the action.^ "^ A widow, before the assignment of a dower, can not maintain an action for trespass, because her inchoate right to dower is a mere chose in action.^'' A wife, where the land is held by entireties by herself and husband, may maintain an action of trespass.-*^ Right of action assignable, for a trespass or other wrongful injury to real property or to the possession thereof, according to some of the cases, -^ but according to other cases the right to maintain the action does not run with the land, and is not assignable by the owner,^- and that, for this reason, the grantee of an owner who has a right of action for damages for a trespass, can not maintain such action.-^ The vendee of land can not main- tain trespass to recover for the conversion of the rent of the land, against a tenant of the vendor who remained in possession of the property after the sale with his knowl- edge, where he has made no demand upon him for the possession or for the rent.^* 14 Clay V. Albons, City of, 43 W. lo Munsey v. Hanley, 102 Mich. Va. 539, 64 Am. St. Rep. 883, 27 423, 67 Atl. 217. S- E. 368. 20 Fowlers v. Hayden, 130 Mich. 15 Sell V. Graves, 16 Mont. 342, 47 37 jsj -^ ^'ji 21 Chouteau v. Boughton, 100 Me. 406, 13 S. W. 877. 40 Pac. 788. iG Shields v. Heard, 21 Ky. L. Rep. 902, 53 S. W. 820. 17 Hart V. Doyle, 128 Mich. 257. " ^"^° ^- M^^°°- ^- ^ ^- ^■ 87 N. W. 219. See Shields v. ^°' 1^7 Ga. 838, 33 S. E. 696. Heard, 21 Ky. L. Rep. 992, 53 23 Burkhalter v. Oliver, 88 Ga. S. W. 820. 473, 14 S. E. 704. isOleson v. Seattle. City of, 30 24 Ingram v. Thomas, 24 Ind. Wash. 687, 71 Pac. 201. App. 570, 57 N. E. 263. 834 Ch. IV.] ACTION BY TENANT, ETC. §§ 618, G19 §618. Action by tenant. It would seem tliat a tenant, in an action to recover for his damages, has a right to show that his landlord had only a limited estate in the premises, which had terminated.^ In those cases in which the injury complained of is to a building erected on the leased premises by the tenant, reverting at end of term, in case of a total destruction, the measure of dam- ages of the tenant will be the actual value of the re- mainder of the term, less the rent reserved ;-' because the title to the building vested at once in the lessor, subject to the lessee's rights under the provisions of the lease.^* The above is in analogy to the rules applicable in con- demnation under the power of eminent domain. § 619. Action by tenant for years or life- tenant. In an action by a life-tenant or a tenant for years to recover damages against a wrongdoer to his estate in real property, his powers and rights are at least as large as those of a tenant for a lesser period ;^ and in addition thereto it has been held by one line of cases that a tenant for years or a tenant for life, in addi- tion to recovering for the damages to his estate, he may also recover the damages to the reversion from the wrongdoer ;2 but there is another line of strong cases iSee Spafford v. Hedges, 231 46 N. H. 230; Cook v. Champlain 111. 140, 145, 83 N. E. 129. Transp. Co., 1 Den. (N. Y.) 91; 2 See Metropolitan Bldg. Co. v. Austin v. Hudson River R. Co., 25 King County, 62 Wash. 409, 411, N- ^- ^^^^ Baker v. Hart, 123 N. Y. 113 Pac 1114 473, 12 L. R. A. 60, 25 N. E. 948; 3 Corcoran v. Chicago, City of, l^^' ^ ^ITf' "".^ ''■ ''°-' 144 111. 537, 21 L. R. A. 212, 33 ^ ^ J" /'''.«:":.?"• ''''''• N. E. 746. See Bass v. Metropoli- ^ ' ^;,.^- ^- ''''^' ^f ^' ''' ^^ ^^ tan West Side Elev. R. Co., 27 T^'' J^'V/, ^''TV o^^" ''''• C. C. A. 147, 151, 53 U. S. ipp. ^7:^'''' .'' ''• ^^ ^"P'^" '''' 542. 82 Fed. 857, 39 L. R. A. 711, !J"'^^^ ^'■^'''°" ^^- ^- ^^rguson yj^ Contracting Co., 117 App. Div. (N. Y.) 305, 102 N. Y. Supp. 190; 1 See, ante, § 618. XJlrich v. McCabe, 1 Hilt. (N. Y.) 2 See Cargill v. Sewal, 19 Me. 251; Willey v. Laraway, 64 Vt. 559, 288; Coale v. Hannibal & St. .1. R. 25 Atl. 436; Attersoll v. Stevens, 1 Co., 60 Mo. 227; Wood v. Griffin, Taunt. 183, 9 Rev. Rep. 731, 127 835 § 620 CODE PLEADING AND PRACTICE. [Pt. Ill, which holds that a tenant for years or a life-tenant can not recover for the damages to the reversion.^ Where a tenant for years or a life-tenant is permitted to recover for the damages to the reversion the right is not based upon the theory that such tenant is liable over to the remainder-man for waste, but is based upon the ground that such tenant is a trustee in possession* for the remainder-man.^ A tenant at ivill can not recover for damages to the reversion, because he is not liable for permissive waste and is not a trustee in possession for his landlord, the remainder-man.^ <§ 620. Joinder of remainder-man and tenant. In the case of a trespass upon or other injury to real estate the remainder-man and the tenant, or the owner of an intervening estate, it has been said, may not be joined in an action to recover for the injury to the inheritance, their injuries being different and their actions several ;^ but the general rule is that they may be joined in such an action.- Some of the cases hold that their joinder is Eng. Repr. 802, 10 Mor. Min. Rep. 213 N. Y. 246, Ann. Gas. 1916C, 877, 67. L. R. A, 1916A, 787, 107 N. E. 661. See, also, notes Ann. Gas. 1916C, 6 See Davis v. Smith, 15 Mo. 468; 881; L. R. A. 1916A, 805. Mason v. Stiles, 21 Mo. 374, 64 Am. 3 See Baffin v. Zimmerman Mfg. Dec. 242 ; Coale v. Hannibal & St. Co., C. W., 158 Ala. 637, 48 So. 109; J. R. Co., 60 Mo. 277; Cook v. Brown v. Woodliff, 89 Ga. 413, 15 Champlain Transp. Co., 1 Den. S. E. 491; Sagar v. Eckert, 3 111. (N. Y.) 91; Austin v. Hudson App. 412; Polk v. Hawarth, 48 Ind. River R. Co., 25 N. Y. 334. App. 32, 95 N. E. 332; Zimmerman i Yeager v. Fairmont, 43 W. Va. V. Shreeve, 59 Md. 357; Jordan v. 259, 264, 27 S. E. 234. But see Benwood, 42 W. Va. 312, 57 Am. Shinn v. O'Gara Coal Min. Co., 72 St. Rep. 859, 36 L. R. A. 519, 26 W. Va. 326, 78 S. E. 104. S. E. 266; Yeager v. Fairmont, 2 Williams v. Lanier, 44 N. C. (1 Town of, 43 W. Va. 259, 27 S. E. Busbee L.) 30; Mclntire v. West- 234. moreland Coal Co., 118 Pa. St. 108, 4 As to right of trustee of an 11 Atl. 808; Gulf, C. & S. F. R. Co. express trust in land to sue in his v. Jagoe (Tex. Civ. App.), 32 S. W. own name, see, ante, §611. 1061; Shinn v. O'Gara Coal Min. 5 Rogers V. Atlantic, G. & P. Co., Co., 72 W. Va. 326, 78 S. E. 104; 836 ell. IV.] INJURIES TO THE PERSON. §621 necessary.^ But several parties can not, in a joint action, recover for damages to, or for the use and occupation of, two or more distinct tracts of land which they own in severalty.* § 621. Injuries to the persox. In the case of injuries to the person,— e. g., assault, assault and battery, false imprisonment, libel and slander,^ malicious prosecution, — and of personal injuries through negligence or wrongful act, even where there are several persons injured at tlie same time, by the same act, and by the same defendants, the action is usually several, and each person who was thus injured must bring his separate action.- But this rule is not of universal application, as the wrongful act may injure tw^o or more persons in their joint relation, — e. g., a slander or a libel against a partnership, which injures the partnership business,^ — or where the parties have incurred a joint liability by reason of the wrong, — Schiffer v. Eu Claire, City of, 51 Wis. 385, 8 N. W. 235. 3 Ingraham v. Bunnell, 46 Mass. (5 Mete.) 125; Bach v. New York Elev. R. Co., 60 Hun (N. Y.) 128, 14 N. Y. Supp. 620. See Kehr v. Floyd, 132 Ga. 626, 64 S. E. 673. 4 Tennant v. Pfister, 51 Cal. 511. See Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; Foreman v. Boyle, 88 Cal. 290, 293, 26 Pac. 94; Senior v. Andrews, 138 Cal. 716, 723, 72 Pac. 349: Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523. 1 Smith V. Croker, Cro. Car. 512, 79 Eng. Repr. 1042. 2 1 Chitty's Pleading (16th Am. ed.), p. 64. Husband and wife maliciously arrested upon a warrant charging a crime without a probable cause of action, each has a separate right of action for the malicious prose- cution, and they can not unite their separate cause of action in one complaint, but each must bring and maintain a separate suit for damages. — Williams v. Casebeer, 126 Cal. 77, 58 Pac. 380. — The wife, however, can not sue without making her husband a party plaintiff.— Id.; McFadden v. Santa Ana, O. & T. Street R. Co., 87 Cal. 464, 25 Pac. 681. See, also, cases cited, post, § 623, footnote 7. The rule is thought to be differ- ent since the amendment of 1913 to § 370. See, post, § 623. 3 Cook V. Bachelor, 3 Bos. & P. 150, 127 Eng. Repr. 83; Maitland V. Goldney, 2 East 426, 6 Rev. Rep. 466, 102 Eng. Repr. 431; Foster v. Lawson, 11 Moo. 360; Coryton v. Lithbye, 2 Wm. Saund. 116 note, 85 Eng. Repr. 823. 837 §§ 622, 623 CODE pleading and practice. [Pt. Ill, e. g., jointly incurred expense in securing their release in a case of malicious arrest;^ in either of which cases a joint action may be maintained.^ ^ 622. Injuries to married woman — In general. At the common law, for injuries to a married woman, the right of action was in the husband, although in certain cases the wife must join. The rule was substantially this : If the cause of action survive to the wife, she must be joined as plaintiff; as where the injury was before mar- riage; or, if it was inflicted after marriage, it be of such a nature as to bring personal suffering to the wife, or if it injures her personally; as a battery, false imprison- ment, or slander by words actionable per se.^ And the same rule prevailed in regard to injuries to the wife's property. If the cause of action survived to her, she should join, otherwise not.^ The procedural codes made sweeping changes in regard to the common-law rules con- cerning the joinder of husband and wife. <^ 623. Under California code. The California Code of Civil Procedure has swept away almost ever\' vestige of the old common-law restrictions relating to actions by married women ; and married women, in Cali- fornia, may bring and maintain actions in their own names for all injuries to their persons, and also for per- sonal injuries through negligent and wrongful acts, with- out joining the husband in the action. The code provision has already been set out and fully analyzed^ and does not require to be here repeated. The present section, as amended in 1913,- is more liberal in its provisions than 4 1 Chitty's Pleading (16th Am. ed.), p. 73; Bliss on Code Plead- ed.), p. 64. ing, §27. 5 1 Chittys Pleading (16th Am. "^ Chitty's Pleading (16th Am. , , „. ed.), p. 75. ^^■^' P- ^*- 1 See. ante, § 594. See, also, cases cited in footnote „ j^g,.j,.g ^y^ ^^^ ^^^^ ^.j^ 3, this section. Proc, 2d ed., §370; Consolidated 1 1 Chitty's Pleading (16th Am. Supp. 1906-1913, p. 1408. 838 ell. IV.] INJURIES TO MARRIED WOMEN, § 623 heretofore, but provisions of a like nature, though more restricted, have been in the code from the time of its adoption in 1872. In construing these provisions of the code, as it formerly existed, the courts held that in actions for injuries to the wife's person or character, she must join with her husband;'^ v\'hile, for injuries to her sep- arate estate, whether the same arise from deceit, trespass, or conversion, she may sue alone, or her husband may be joined with her, as the provision authorizing her to sue alone has generally been held permissive, except in those states which absolutely require the action to be prose- cuted by the wdfe alone.* So, also, if the cause of action arises from contract the w^ife may sue alone if it concerns her separate estate, or her husband may join "«dth her in such action. Construction since amendment of 1913 has not been such as to throw any new light upon the section, as thus amended, in respect to the particular point under discus- sion; but there has been construction, as we shall see presently, in reference to suits ex delicto against the wife, where the cause of action arises out of her separate prop- erty, the holding being that the husband must be joined in such actions.^ In 1915 it was held that an action for damages for personal injuries to the wife, while it may be maintained by wife suing alone,*' the money recovered as damages, if any, being community property over which the husband has control, yet an action to recover 3 See Tell v. Gibson, 66 Cal. 247, Cal. 308; Kays v. Plielan, 19 Cal. 5 Pac. 223; McFadden v. Santa 128; Calderwood v. Pyser, 31 Cal. Ana, O. & T. Street R. Co., 87 Cal. 333; Corcoran v. Doll, 32 Cal. 82, 464, 11 L. R. A. 252, 25 Pac. 681; 90; Sprague v. Heard, 90 Cal. 221. Neale v. Depot R. Co., 94 Cal. 425, 27 Pac. 198; Palmer v. Davis, 2S 29 Pac. 954; Lamb v. Harbaugh, N. Y. 242; Ackerly v. Tarbox, 31 105 Cal. 680, 39 Pac. 56; Hawkins N. Y. 564; Newberry v. Garland, V. Front St. Cable Co., 3 Wash. 31 Barb. (N. Y.) 121. 592, 28 Am. St. Rep. 72, 28 Pac. 5 See, post, § 678. 1021. 6 See Meier v. Wagner, 27 Cal. i See Van Maren v. Johnson, 15 App. 579, 150 Pac. 797. 839 § 624 CODE PLEADING AND PRACTICE, [Pt. Ill, for such injuries can not be maintained by tlie busband alone/ this being the only exception to the rule that the husband may sue alone in actions concerning the com- munity property, and in this action the husband must join his wife with him as a plaintiff.® On the theory that the husband is a necessary party plaintiff in an action by the wife to recover damages for an injury to her person, it was held in 1916 that the wife's sole cause of action for such damages did not begiii to run until she was deserted by her husband f*^ but this is thought to contravene the express provisions of paragraph one of section three hundred and seventy, as amended in 1913.^" <§ 624. No LIMITATION AS TO KINDS OF ACTIONS. It is to be noted there is no statutory limitation as to the kind of actions that may be maintained by the wife when they concern her separate property, or are against her husband. Thus, a married woman may sue alone on a promissory note forming a part of her separate estate/ for money loaned, or breach of a money contract, although such note was given to her by her husband before mar- riage, and he is the party sought to be held liable in the action.^ Nor is it necessary, under this section, for the 7 See Sheldon v. Steamer Uncle Mill & Lumber Co., 110 Cal. 481, Sam, 18 Cal. 526, 79 Am. Dec. 193; 42 Pac. 980, followed in Moody v. Matthew v. Canadian Pac. R. Co., Southern Pac. Co., 167 Cal. 786, 63 Cal. 450; Tell v. Gibson, 66 Cal. 141 Pac. 388; Meier v. Wagner, 27 247, 5 Pac. 223; Baldwin v. Second Cal. App. 579, 150 Pac. 797. Street Cable R. Co., 77 Cal. 390, 19 9 Mortell v. Los Angeles College Pac. 644; McFadden v. Santa Ana, of Osteopathy, 30 CaL App. 422, O. & T. Street R. Co., 87 Cal. 464, 158 Pac. 508. 25 Pac. 681; Neale V. Depot R. Co., lo See, ante, §594, item (2) in 94 Cal. 245, 29 Pac. 954; McKune analysis of section. V. Santa Clara Valley Mill & Lum- i See, ante, § 594; Corcoran v. ber Co., 110 Cal. 480, 42 Pac. 980; Doll, 32 Cal. 82; Smart v. Com- Williams v. Casebeer, 126 Cal. 77, stock, 24 Barb. (N. Y.) 411. S2, 58 Pac. 380; Gomez v. Scanlan, 2 Wilson v. Wilson, 36 Cal. 447, 155 Cal. 528, 530, 102 Pac. 12; 95 Am. Dec. 194; Mathewson v. Meier v. Wagner, 27 Cal. App. 579, Mathewson, 79 Conn. 32, 5 L. R. A. 150 Pac. 797. (N. S.) 611, 63 Atl. 289; May v. 8 McKune v. Santa Clara Valley May, 9 Neb. 23, 31 Am. Dec. 40*^. 840 eh. IV.] INJURIES TO MARRIED WOMEN. §624 wife to sue by prochein ami.^ In New York a married woman, it seems, can not sue her husband for assault and battery;* nor for libel or slander;-^ nor in ejectment.** But she may sue him for alimony, without bringing an action for divorce.'^ In California, the possession of either of the spouses as to the community property is the possession of the other, and neither can sue the other for the conversion thereof.^ The provision of the section authorizing the wife to be sued alone when living sep- arate and apart from her husband, has no application to a mere temporary absence of the wife from her husband ; there must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final. ^ In some jurisdictions a married woman can maintain an action alone for an injury to her person, and the husband is not a necessary party to such action. ^*^ 2 N. W. 221; Grubbe v. Grubbe, 26 Ore. 363, 372, 38 Pac. 182; Alex- ander V. Alexander, 85 Va. 353, 366, 1 L. R. A. 125, 7 S. E. 335. See, also, note 5 L. R. A. (N. S.) 613. At common law wife can not sue husband, but his confession of judgment in her favor is good as against his creditors. — Bennett v. Bennett, 37 W. Va. 399, 38 Am. St. Rep. 47, 16 S. E. 638. May enjoin in equity husband from disposing of wedding pres- ents, which are her separate prop- erty, but can not sue him at law. — Ilgenfritz v. Ilgenfritz, 49 Mo. App. 139. Wife may sue firm of which hus- band is a member for money loaned, but husband must be joined as plaintiff. — Alexander v. Alexander, 85 Va. 353, 366, 1 L. R. A. 125, 7 S. E. 335. See, also, note 6 L. R. A. 507. o Kashow V. Kashow, 3 Cal. 312. 4 Longendyke v. Longendyke, 44 Barb. (N. Y.) 366. 5 Freethy v. Freethy, 42 Barb. (N. Y.) 641. 6 Gould V. Gould, 29 How. Pr. (N. Y.) 441. Ejectment to recover separate estate lies at suit of wife. — Wood V. Wood, 83 N. Y. 575, affirming 18 Hun 350. Same doctrine prevails in other states. — See Gibson v. Herriott, 45 Ark. 85, 96; Carter v. Carter, 118 Ind. 521, 10 Am. St. Rep. 161. 7 Galland v. Galland, 38 Cal. 265. 8 Schuler v. Savings & Loan Soc, 64 Cal. 397, 1 Pac. 479. 'J Tobin V. Galvin, 49 Cal. 34, 36. Enticing away husband, wife may sue alone for. — Humphry v. Pope, 122 Cal. 253, 255, 54 Pac. 847. 10 Barker v. Anniston, O. & O. Street R. Co., 92 Ala. 314, 8 So. 466: Portland, City of, v. Taylor, 125 Ind. 522, 25 N. E. 459; Bennett 841 §624 CODE PLEADING AND PRACTICE. [Pt. Ill, Thus, it has been held that a married woman may main- tain an action in her own name, and without joining her husband as a plaintiff, for (1) alienating her husband's affections, (2) enticing away her husband and depriving her of his conjugal society,^^ or (3) wrongfully procur- ing her husband (a) to abandon her, or (b) to send her away,^^ or (4) criminal conversation with her husband ;^^ and it seems that a married woman may maintain an action for the alienation of her husband's affections even V. Bennett, 116 N. Y. 584, 6 L. R. A. 553, 23 N. E. 17; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; MehrhofE v. Mehrhoff, 26 Fed. 13 (in Kansas). In Alabama wife must sue alone for all injuries to her person. — Barker v. Anniston, O. & O. Street R. Co., 92 Ala. 314, 8 So. 466. 11 As to wife's right of action, see: CAL. — Humphrey v. Pope, 122 Cal. 253, 258, 54 Pac. 847. D. C. — Dodge V. Rush, 28 App. Cas. 140, 152, 8 Ann. Cas. 671. ILL.— Bester v. Bester, 186 111. 537, 78 Am. St. Rep. 303, 52 L. R. A. 630, 58 N. E. 249. IND.— Haynes V. Nowlin, 129 Ind. 581, 583, 28 Am. St. Rep. 213, 14 L. R. A. 787, 29 N. E. 389; Holmes v. Holmes, 133 Ind. 386, 388, 32 N. E. 932. IOWA — Price v. Price. 91 Iowa 693, 698, i%l Am. St. Rep. 360, 29 L. R. A. 150, 60 N. W. 202. KAN.— Mehrhoff v. Mehrhoff, 26 Fed. 13 (Kansas statute). KY. — Deitzman V. Mullin, 108 Ky. 610, 614, 94 Am. St. Rep. 390, 50 L. R. A. 808, 57 S. W. 247. MD.— Wolf v. Frank, 92 Md. 138, 140, 52 L. R. A. 102, 48 Atl. 132. MICH.— Warren v. War- ren, 89 Mich. 123, 125, 14 L. R. A. 545, 50 N. W. 842. MINN.— Lock- wood V. Lockwood, 67 Minn. 476, 482, 70 N. W. 784. MO.— Clow v. Chapman, 125 Mo. ICl, 104, 46 Am. St. Rep. 468, 26 L. R. A. 412, 28 S. W. 328. N. Y.— Bennett v. Ben- nett, 116 N. Y. 584, 6 L.. R. A. 553, 23 N. E. 17; Romaine v. Decker, 14 App. Div. 22, 43 N. Y. Supp. 79; Manwarran v. Mason, 79 Hun 593, 29 N. Y. Supp. 915; Van Olinda v. Hall, 88 Hun 453, 34 N. Y. Supp. 777. PA. — Gernerd v. Gemerd, 185 Pa. St. 233, 236, 66 Am. St. Rep. 646, 40 L. R. A. 549, 42 W. N. C. 51, 39 Atl. 884. WASH.— Beach v. Brown, 20 Wash. 266, 269, 72 Am. St. Rep. 98, 43 L. R. A. 114, 55 Pac. 46. See note 6 L. R. A, 554; 52 L. R. A. 102, 630. 12 Williams v. Williams, 20 Colo. 51, 55, 37 Pac. 614; Hodgkinson v. Hodgkinson, 43 Neb. 269, 271, 47 Am. St. Rep. 759, 27 L. R. A. 120, 61 N. W. 577; Gernerd v. Gernerd, 185 Pa. St. 233, 236, 66 Am. St. Rep. 646, 40 L. R. A. 549, 42 W. N. C. 51, 39 Atl. 884. isNolin V. Pearson, 191 Mass. 283, ll4 Am. St. Rep. 605, 6 Ann. Cas. 658, 4 L. R. A. (N. S.) 643, 77 N. E. 890, and the cases cited in the opinion and in the notes ap- pended in the three annotated series reprinting the case; King v. Hanson, 13 N. D. 85, 97, 99 N. W. 1085. 842 ch. IV.] MINOR CHILD OR SERVAXT INJURIES TO. § 025 after she has been divorced from him.^* A married woman may maintain an action in her own name witliont joining her husband to recover possession of the home- stead property.^^ And she may sue alone to recover money loaned by her which is her separate property.^*"' So, if a wife deserts her husband, but before the expira- tion of the statutory period required to make the deser- tion a cause of divorce, offers in good faith to return and resume the performance of her marital duties, and lie refuses to receive her, such refusal amounts to desertion on his part, and she can in California sue alone to recover damages for personal injuries. ^^ The husband is held to he the proper plaintiff in an action to recover the proceeds of his wife's labor, in the absence of an agreement be- tween them making such proceeds her separate prop- erty.^* § 625. Injuries to minor child or servant — Action by PARENT OR MASTER. Both uuder the common law and the procedural codes, a parent may recover for damages to a minor child, and a master for injuries to a servant. Tn both instances the gist of the cause of action is the loss of the service of the servant or child. Under the Cali- fornia code it is provided that a "father, or in case of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child, and a guardian for the death or injury of his ward, when such death or injury is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person, who is respon- sible for his conduct, also against such other person."^ u Postlewaite v. Postlewaite, 1 it Andrews v. Runyon, 65 Cal. Ind. App. 473, 478, 28 N. E. 99. 629, 4 Pac. 669. ■ 5 Mauldin v. Cox, 67 Cal. 387, i s Moseley v, Heney, 66 Cal. 478, 7 Pac. 804. 6 Pac. 134. ifi Evans v. De Lay, 81 Cal. 103, i Kerr's Cyc. Cal. Code C i v. 22 Pac. 408. Proc, §376; Munro v. Pacific 843 § 626 CODE PLEADING AND PRACTICE. [Pt. Ill, Under this section the minor may sue by his guardian and recover for the injuries he has sustained; or the parent may sue and recover for the damages sustained by him. If the minor sue, he can not recover for the spe- cial damages sustained by the parent; and the parent may bring and sustain his action for such special dam- ages, notwithstanding the recovery by the child. If the child do not sue, the parent can not, in the same action, recover his special damages, and also the damages which the child might recover, if he brought suit by his guardian ; the action, when brought by the parent, being one of that class which is permitted to be brought without joining the person for whose benefit it is brought, and unless the action, when brought by the parent, is to be regarded as for the benefit of the minor, there would seem to be no obstacle in recovering in an action brought by the child. In actions for injuries resulting in death, the measure of damages is left to the sound discretion of the jury. An action for an injury resulting in death, under the California code,^ can be brought by either the heirs or the personal representative, but separate actions can not be brought or maintained by both, and a former recovery by an executor may be pleaded and proved in bar to an action subsequently brought by the heirs of one killed through the negligence of the defendant.^ § 626. Action by minor or servant. The injury to a minor child gives a right of action for the wrong done (1) to the parent^ for loss of services and expenses incurred on account of such injury,- and (2) to the minor for damages on account of the injuries actually suffered by him. The two causes of action are entirely separate and distinct, and a prosecution and a recovery on the one Coast Dredging & Reclamation Co., See, also, ante, § 561. 84 Cal. 515, 18 Am. St. Rep. 248, 24 3 Hartigan v. Southern Pac. R. Pac. 303. Co., 86 Cal. 142, 24 Pac. 851. 2 Kerr's Cyc. Cal. Code Civ. i See, ante, § 625. Proc, § 377. -' See, ante, § 561. 844 Ch. IV.] REAL AND MIXED ACTIONS. § 627 is no bar to a prosecution and recovery on the other. Likewise injuries to a servant gives rise to two separate and distinct causes of action; to wit (1) to the master^ on account of loss of services and any expense he has been put to on account of physician's attendance, nursing, medicines, and the like, where such expenses were paid by the master, and (2) to the servant for the injury actually sustained by him, together with any expense for physician's attendance, medicines, nursing and the like, where such expenses were paid by the servant. The fact that the person injured is a servant in the employ of another can not impair his right of action for a personal injury to the infliction of which he did not consent.'' The two causes of action are entirely separate and distinct, and a recovery on one will not be a bar to an action and recovery on the other. § 627. Real and mixed actions — Ejectment. At the common law, in real and mixed actions, joint tenants^ and the members of a partnership,- were required to join as plaintiffs,^ but tenants in common were required to sever and each was required to sue for his individual interest.^ Under procedural codes providing that ''all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs," such joinder is permitted.'^ Except in Cali- fornia, Colorado,^ Missouri, Nevada, North Carolina," and South Dakota,^ a joinder of tenants in common less 3 See, ante, § 625. 6 Weese v. Barker, 7 Colo 178 4 Bliss on Code Pleading, § 28. 2 Pac. 919 (one of several tenants 2 See Bush v. Bradley, 4 Day "^"°' '''' '""^ '""""""'■^ °' "^^ ^°- (Conn.) 303. ^'^^ possession). 3 1 Chitty's Pleading (16th Am. ' ^^"^^ ''• Greenlee, 90 N. C. ed.), p. 65. 317 (rule same as in Colorado, as 4 As to tenants in common, see, given in last footnote). ante, § 599. s Mather v. Dunn, 11 S. D. 196, r. Woodfork v. Ashby, 59 Ky. (2 74 Am. St. Rep. 788, 76 N. W. 922. Mete.) 288. 845 § 627 CODE PLEADING AND PRACTICE. [Pt. Ill, than all is not permitted. They must all sue, or each one separately.^ In the states named, and perhaps others, however, a joinder of less than all is permitted.^" Actions of ejectment must be prosecuted in the name of the real party in interest,^ ^ and the person having the legal title to the land, and not the one having the equitable title, is such party.^^ And to entitle him to sue he must be out of possession.13 In California^-* and Nevada^^ the heir may maintain ejectment when there is no administra- tion. The rule that each of several heirs may sue in ejectment for nonpayment of rent without joining the others, applies to the case of tenants in common of an in- corporeal hereditament of rents charged in fee, and no reversion ; the rents are apportioned in either case.^^ The grantee may bring an action to recover lands conveyed while in adverse possession, in the name of the grantor.^' Lessees in the actual possession of land from which they are ousted by an intruder, without title or color of right, 9 Cruger v. McLaury, 41 N. Y. 13 Taylor v. Crane, 15 How. Pr. 219, affirming 41 Barb. 642; Has- (N. Y.) 358. brouck V. Bunce, 62 N. Y. 475, 479, n UpdegrafE v. Trask, 18 Cal. reversing 3 Thomp. & C. 309. 458; Soto v. Kroder, 19 Cal. .87; 10 Binswanger v. Henninger, 11 Woodworth, Estate of, 31 Cal. 595, Alaska 511; Morenbaut v. Wilson, 604; Chapman v. Hollister, 42 Cal. ,52 Cal. 263, 269; Moulton v. Mc- 462, 464. Dermott, 80 Cal. 629, 630, 22 Pac. Action for possession by heir 296; Mather v. Dunn, 11 S. D. 196, can not be maintained until ad- 74 Am. St. Rep. 788, 76 N. W. 922. ministration has been closed or See note 74 Am. St. Rep. 790. property distributed by decree of 11 Ritchie v. Borland, 6 Cal. 33. probate court. — Chapman v. Hol- As to real party in interest, see, lister, 42 Cal. 462; Thorpe v. ante, §§ 583-587. Sampson, 84 Fed. 66. 12 Green v. Jordan, 83 Ala. 220, 15 Gossage v. Crown Point Gold 3 Am. St. Rep. 711, 3 So. 513; & S. Min. Co., 14 Nev. 153, 158. Emeric v. Penniman, 26 Cal. 119, 16 Cruger v. McCaughiy, 51 122; O'Connell v. Dougherty, 32 Barb. (N. Y.) 642, affirmed, 41 Cal. 458, 462; Hartley v. Brown, 46 N. Y. 219. Cal. 204; Fair, Estate of, 132 Cal. 17 Lowber v. Kelly, 17 Abb. Pr. 523, 536, 84 Am. St. Rep. 70, 60 (N. Y.) 452; affirmed, 22 N. Y. Pac. 442, 64 Pac. 1000. Super. Ct. Rep. (9 Bosw.) 494. 846 ch. IV.] SEDUCTION — ACTION FOR. §628 may maintain ejectment.^ ^ And it may be maintained by the vendor of land against a vendee in possession under a contract of purchase, who refuses to comply with the terms and conditions of the contract.^'-* A deed con- veying title to the members of a firm enables one partner to maintain ejectment against an intruder.-'* § 628. Seductiox : Acxiox for — At commox law. It has been said that, at common law, no action could be maintained to recover damages for the seduction of a female, where the act amounted to a felony; but there are cases to the effect that it is no objection to the action that the wrong complained of was accomplished by force.^ In those cases in which the offense was not a felony, the father,^ or the master,^ where she was at service in the employ of another at the time, could maintain a civil fiction for damages against the seducer. This action was l)ased, however, not upon the injury or wrong done the female, but upon the loss of services,^ the same as in the 18 Kirsch v. Brigard, 63 Cal. 319. See Kersch v. Smith, 64 Cal. 13, 14, 27 Pac. 942. ]!> Hicks V. Lovell, 64 Cal. 14, 49 Am. Rep. 679, 27 Pac. 492; Wallace V. Maples, 79 Cal. 433, 21 Pac. 860; Connolly v. Hingley, 82 Cal. 642, 23 Pac. 273; Coates v. Cleaves, 92 Cal. 427, 28 Pac. 580; Meyer v. Garrett, 96 Pa. St. 376. 20 Smith V. Smith, 80 Cal. 323, 21 Pac. 4, 22 Pac. 186, 549. 1 Marshall v. Taylor, 98 Cal. 55, 35 Am. St. Rep. 144, 32 Pac. 867; Kennedy v. Shea, 100 Mass. 147, 1 Am. Rep. 101; Furman v. Apple- gate, 23 N. J. L. (3 Zabr.) 28; Chamberlain v. Hazelwood, 5 Mees. & W. 515. 2 1 Chitty's Pleading (16th Am. ed.), p. 69. 3 Id. 4 See: ILL.— White v. Murtland, 71 111. 250, 252, 22 Am. Rep. 100. MASS.— Kennedy v. Shea, 110 Mass. 147, 151, 14 Am. Rep. 584; Blanchard v. Ilsley, 120 Mass. 487, 21 Am. Rep. 585. N. J.— Coon v. Moffett, 3 N. J. L. (2 Pen.) 583, 4 Am. Dec. 392. N. Y.— Furman V. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441; Hamilton v. Lomax, 26 Barb. 615, 6 Abb. Pr. 142; Badgley V. Decker, 44 Barb. 577. N. C— Abbott V. Hancock, 123 N. C. 99, 31 S. E. 268. PA.— Weaver v. Bochert, 2 Pa. St. 80, 44 Am. Dec. 159. ENG.— Gray v. Jeffries, Cro. Eliz. 55, 78 Eng. Retir. 316; Barham v. Dennis, Cro. Eliz. 770, 78 Eng. Repr. 1001; Hall v. Hollander, 4 Barn. & C. 660, 662, 10 Eng. C. L. 746, 747, 7 Dow. & Ry. 138, 107 Eng. Repr. 1206. See, also, 3 Bl. Com. 141. 847 § 628 CODE PLEADING AND PRACTICE, [Pt. Ill, case of a wrongful personal injury;^ and to entitle to a recovery there was required to be evidence to support the allegation per quod servitium amisit.^ But services of the slightest kind, or her liability to serve, or the fact that she was at the time living with her father as a part of his family and liable to his control and command,' was sufficient to satisfy the requirements in this regard. In those cases in which the daughter was under age she was, according to some of the cases, presumed to be under the control of, and in the service of, her father so as to entitle him to maintain an action for her seduction, with- out further proof of actual service. In those cases in which she had attained the age of majority, she was required to be in her father 's services, so as to constitute, in law and in fact, the relation of master and servant, in order to confer upon the father the right to sue in a civil action for her seduction f but the relation of master was presumed to result constructively from the father 's right to reclaim the custody of her person, from his responsi- bility for her education, and from his obligation to sup- port her if she became sick or disabled, whether at home or absent therefrom.^ In the case of a female who had 5 See, ante, §625. & J. (Md.) 27, 9 Am. Dec. 486; 6 See 1 Chitty's Pleading (16tli Nickleson v. Stryker, 10 Johns. Am. Ed.), p. 69; 2 Id. 558; Dean (N. Y.) 115, 6 Am. Dec. 318; Stew- V. Peel, 5 East 45, 7 Rev. Rep. art v. Kip, 1 Wend. (N. Y.) 376: Erg. Repr. 653, 102 Eng Repr. 986. Millar v. Thompson, 1 Wend. 7 Patterson V. Thompson, 24 Ark. (N. Y.) 447; Hewitt v. Prime, 21 55; Robinson v. Burton, 5 Harr. Wend. (N. Y.) 79; Parker v. (Del.) 335; Ellington v. Ellington, Elliott, 1 Gilm. (Va.) 33. 47 Miss. 329; Sutton v. Huffman, 9 Id.; Kennedy v. Shea, 100 32 N. J. L. (3 Vr.) 58; Manly v. Mass. 150, 97 Am. Dec. 91; Van Field, 7 J. Scott N. S. (7 C. B. Horn v. Freeman, 6 N. J. L. (1 N. S.) 96, 97 Eng. C. L. 95; Harris Halst.) 322; Martin v. Payne, 9 V. Butler, 2 Mees. & W. 539; Johns. (N. Y.) 387, 6 Am. Dec. Maunder v. Venn, 1 Moo. & M. 288 ; Bartley v. Richtmyer, 4 N. Y. 324, 22 Eng. C. L. 324; Terry v. 38, reversing 2 Barb. 182; Mulve- Hutchinson, L. R. 3 Q. B. 599. . hall v. Millard, 11 N. Y. 343; Horn- sLockwood V. Betts, 8 Conn, keth v. Burr, 8 Serg. & R. (Pa.) 130; Mercer v. Walmesley, 5 Har. 36, 11 Am. Dec. 578. 848 ch. IV.] ACTION FOR SEDUCTION — UNDER CODES. § 629 attained her majority an express contract to serve, or the payment of Avages, need not be shoAVTi; and the circum- stance of her being absent at the time was immaterial, where she intended to return to her father's home.^'^ But where the daughter was actually in the service of another person at the time,^^ or was in the defendant's service,^- — unless he hired her for the purpose of seduction, ^^ — no action lay by the father for her seduction, even though the daughter returned home and incurred expense to her father by reason of and on account of such seduction ;^^ and especially was this true w^here the daughter had attained her majority, and was absent from home under a contract made for her oavh benefit,^^ although she had the intention of returning to her father's ser\dce after she had quitted that of the defendant, ^^ and although, during any leisure time, with the permission of her mas- ter, she had been in the habit of assisting her father in the work by which he earned his livelihood.^^ § 629. Under procedural codes — In general. The procedural codes, and the statutes governing in actions for damages for seduction, in the various jurisdictions, have made radical changes in the rules of the common law in regard to liabilities for seduction, and in regard 10 See authorities cited in foot- 14 Davies v. Williams, 10 Ad. & note 7, tiiis section; also, Green- E. N. S. (10 Q. B.) 725, 59 Eng. wood V. Greenwood, 28 Md. 370; C. L. 723; Thompson v. Ross, 5 Sutton V. Huffman, 32 N. J. L. (3 Hurlst. & N. 16; Eager v. Grim- Vr.) 58; Lipe v. Eisenlord, 32 N. Y. ^0°^' 1 Welsh.. H. & G. (1 Exch.) 229; Griffiths v. Teetgen, 15 C. B. ^^' ^^^"^ ^- Walton, L. R. 2 C. P. 344. 11 Dean v. Peel, 5 East 45, 7 Rev. Rep. 653, 102 Eng. Repr. 986. 615; Terry v. Hutchinson, L. R. 6 Q. B. 599. 15 Lee V. Hodges, 13 Graft. (Va.) 726. i2Harrisv. Butler, 2 Mees. &W. 16 Blaymire v. Hayley, 6 Mees. 539. & w. 55. 13 Speight V. Oliviera, 2 Stark. i7 Thompson v. Ross, 5 Hurl. & 493, 3 Eng. C. L. 501. See Dain N. 16; Hedges v. Tagg, L. R. 7 V. Wickoff, 7 N. Y. 191, 18 N. Y. Exch. 283, 41 L. J. N. S. Exch. 46, 72 Am. Dec. 493. 169. I Code PI. and Pr.— 54 g^Q § 629 CODE PLEADING AND PRACTICE. [Pt. Ill, to the actions for damages therefor. The right to main- tain the action has been greatly enlarged, and the web of technicalities swept away, so that now such an action may be maintained by the mother^ as well as the father, with certain restrictions in favor of the father as head of the family.- The female injured is also permitted to main- tain an action for damages,^ but her affianced husband may not maintain such an action against the seducer."' We have already seen that, under the common law, where the seduction complained of was a felony, there could be no civil action for damages.^ Many of the American statutes, as in California, make seduction a felony,** but the provisions of the California Code of Civil Procedure"^ gives the right to maintain a civil action for damages notwithstanding the felonious character of the offense. Whether the common-law rule, which prohibits any one from maintaining an action based upon a tort who has not suffered actual legal damages, is changed by this provision of the procedural code, is not free from doubt. ''Seduction," as used in the procedural codes and stat- utes giving a right of action to recover damages therefor, as applied to the conduct of a man towards a woman, means and necessarily includes the use of some influence, promise, art, or means on the man's part by or through which he induces the woman to surrender her chastity and her virtue^ to his embraces ; there must be something 1 Mother abandoned by husband, 4 Case v. Smith, 107 Mich. 416, who keeps a boarding house on 61 Am. St. Rep. 341, 31 L. R. A. her sole and separate account, 282, 65 N. W. 279. may maintain an action for the 5 gee, ante, § 628. seduction of her daughter, who has ^ g^^ ^^^.^.^ ^^^ ^^j Penal attained her majority, where the ^^^^^ gg 266 et seq. daughter lives with and performs , ^,^,^. ^ ^ , 4. ^v, 1 1 ^ See Kerr s Cyc. Cal. Code Civ. services for her about the board- eo n-r. or,r T^ J , T-w 1 AA Proc, §§374, 375. ing house. — Badgley v. Decker, 44 Barb (NY) 577 8 Inducing surrender of chastity See also, note 14 L. R. A. 701. is seduction.— Graham v. McRey- 2 See, post, § 630. nolds, 90 Tenn. 673, 13 S. W. 272. 3 See, post, § 631. Unchaste woman can not be se- 850 C'll. IV.] SEDUCTION — ACTION BY PARENT, ETC. § 630 more than mere reluctance on the woman's part to com- mit the act ; her consent must be obtained by flattery, false promises, urgent importunity,^ based upon profes- sions of attachment, and the like, of the man for the woman ; and the woman, relying solely upon such flattery, false promises, artifice, and importunity, surrenders her chastity and virtue to the seducer.^*^ It has also been held that fraud in obtaining consent of parents to the mar- riage of their daughter with a man who already has a wife living from whom he is not divorced, vitiates such consent so as to make him liable for seduction. ^^ § 630. By paeent, guardian or master. The procedural codes, wiping away the technicalities of the common-law doctrine, confers a right to maintain an action for damages for the seduction of a female upon various persons. The California Code of Civil Procedure provides that a father, or in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or Avard be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service.^ Under this statute, and under all procedural statutes having a like provision, the old common-law duced. — 54 Tex. Cr. Rep. 619, 114 reason of and through such artifice S. W. 841. 3,nd deception practiced on her by Importunity and solicitation merely, to which the woman yields, is seduction. — Bradshaw v. the defendant she submitted to sexual intercourse with him. — Breon v. Hinkle, 14 Ore. 494, 13 Pac '^8d Jones, 103 Tenn. 331, 76 Am. St. , ' t" tt. * v ioa xt v ' ' 11 Lawyer v. Fntcher, 130 N. Y. Rep. 655, 52 S. W. 1072. 239, 27 Am. St. Rep. 521, 14 L. R. A. 10 See Marshall v. Taylor , 98 700, 29 N. E. 267. Cal. 55. 35 Am, St. Rep. 144, 32 1 Kerr's Cyc. Cal. Code Civ. Pac. 867. Proc, § 375. Must show defendant employed Common-law right of action for artifice or deceit such as was cal- seduction of a grand-daughter, a culated to mislead a virtuous member of the household, exists woman; that she was misled in in Oregon. — Anderson v. Aupperle, consequence thereof; and that by 51 Ore. 556, 95 Pac. 330. 851 § 630 CODE PLEADING AND PRACTICE. [Pi. Hi, fiction of '' service"- is dispensed with as a foundation of the right of the parent to sue f and we may, therefore, conclude that the parent has the right now, independently of any loss of services, to recover to the same extent as formerly. If this be true, it would follow that a recovery by the parent would be a bar to an action brought by the daughter, as provided for in procedural codes ;^ and tliat a recovery by the daughter would be a bar to an action brought by the parent for more than special damages, if any were sustained, which from their nature could not have been included in the daughter's action.^' Some of the procedural codes, while containing identical provi- sions with the California code, provide also in reference to this particular matter. ** Cinder the California statute, and all statutes with sim- ilar provisions, the right of the father, mother or guard- ian to maintain an action for the seduction of a female, does not depend upon the question whether the female is living with such father, mother or guardian and in his service. Some questions as to the measure of damages, and the right to maintain several actions for the same seduction, arise which are not free from difficulties. If the female who has been seduced be at the time a minor, and living with her father, the loss of service accrues to him. Can she recover for that? May she maintain the action and recover all other damages, and her father maintain a separate action and recover for the loss of services ! If so, can he recover anything more unless he 2 See, ante, § 628, footnote 4, and 4 See, post, § 631. text therewith. 5 Evidence of seduction admitted Female under age loss of ser- ^^ enhance damages for breach of vices presumed. — Schmit v. Mitch- ell, 59 Minn. 251, 61 N. W. 140. 3 See Hancock v. Wilhoite, 62 promise of marriage, a bar to sub- sequent suit by the father for the Ky. (1 Duv.) 313; Watson v. Wat- seduction.-Jarvis v. Johnson, 2 son, 49 Mich. 510, 14 N. W. .489; O^io ^ec. Repr. 312. Franklin v. McCorkle, 84 T e n n. 6 See, post, § 631. (16 Lea) 609, 57 Am. Rep. 244. 852 ell. IV.] ACTION BY UNMARRIED FEMALE. § 631 has incurred expenses directly caused by the seduction? If the seduction occurs after she has attained her major- ity, can the father maintain any action therefor?" If he can, does the recovery go for his benefit, or only for the (laughter's? Would a recovery by him bar an action brought by the daughter ! Or a recovery by the daughter bar an action brought by the father? The California Civil Code declares that ''the damages for seduction rest in the sound discretion of the jury";^ and also provides that "the rights of personal relation forbid : 3. The seduc- tion of a wife, daughter, orphan sister, or servant."^ The rule in relation to actions for torts is, that "the person who sustains an injury is the person to bring an action for the injury against the wrongdoer. "^*^ §631. By unmarried female. Under the doctrine of the maxim nulla injuria est qusB in volentem fiat — that is no injury which is done to a willing party, tlie common law did not permit a female to sue for dam- ages for her own seduction. Under the California pro- cedural code, and there are similar provisions in other jurisdictions having the reformed judicature, an unmar- ried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary and exemplary,^ as are assessed in her favor.- No restrictions are imposed upon her right to maintain the action in California, and an unmarried female, what- ever her age, whether living with her father or guardian, or not, may maintain the action. Some of the other pro- cedural codes, with provisions identical with those of California, contain a provision restricting the right of " Under Iowa Code no action can lo Dicey on Parties, 330. ]w maintained by a parent for the i Mental suffering as an element seduction of an adult child. — Dodd of damages in an action by a V. Focht, 72 Iowa 579, 34 N. W. female for her own seduction. — 425. See note collecting the cases. 33 sKerrs Cyc. Cal. Civ, Code, L. R. A. (N. S.) 99. § 339. '■i Kerr's Cyc. Cal. Code C i v. 9 Id., § 349. Proc, § 374. 853 § 631 CODE PLEADING AND PRACTICE. [Pt. Ill, au unmarried female to sue for her own seduction to those over twenty-one years of age; and providing that the prosecution of an action to judgment by the father, mother, or guardian shall be a bar to an action by such unmarried female/^ Where a female has been seduced under a promise of marriage, she has a right of action (1) for breach of the promise of marriage, and (2) an independent action for the seduction ;^ but where she has brought an action for the breach of the promise of mar- riage in which she has pleaded and proved, as she is en- titled to do,^ the seduction in aggravation of damages for the breach, and has recovered exemplary damages in such action, she can not thereafter maintain a separate action for the tort committed in the seduction.*^ On the other hand, a judgment in tort for the seduction, will bar a subsequent action for the breach of promise of marriage -^ although the contrary has been held on the ground that the allegation of the promise of marriage in the action for seduction was not a necessary element in the action, and was alleged for the purpose of showing the means by which the seduction was accomplished.^ 3 See Oregon Code, § 35. Va. 240, 26 Am. St. Rep. 921, 12 4 Lanigan v. Neely, 4 Cal. App. S. E. 698. WIS.-Giese v. Schultz, 760, 89 Pac. 441. ^^ Wis. 462, 10 N. W. 598. ^.^ See 15 R. C. L. 968. 3 See, among other cases: LALi. xt i ^ /-. i a • "■ ^ 6 Lanigan v. Neely, 4 Cal. App. —Lanigan v. Neely, 4 Cal. App. „^^^^ ^^ p^^ ^^^. Haymond v. 760, 89 Pac. 411. COLO.— Harri- gaucer, 84 Ind. 3; Sheahanv. son V. Carlson, 45 Colo. 55, 101 Barry, 27 Mich. 217; Osmun v. Pac. 76. MICH.— Sheahan v. Winters. 25 Ore. 260, 35 Pac. 250. Barry, 27 Mich. 217. N. J.— Coil ' Reiger v. Abrams, 98 Wash. 72, V. Wallace, 24 N. J. L. (4 Zab.) L. R. A. 1918A, 362, 167 Pac. 76. 291. N. C. — Hood V. Sudderth, 111 See Jarvis v. Johnson, 2 Ohio Dec. X. C. 215, 16 S. E. 397. WASH.— Repr. 312. Rieger v. Abrams, 98 Wash. 72, 8 Ireland v. Emerson, 93 Ind. 1, L. R. A. 1918A, 362, 167 Pac. 76. 47 Am. Rep. 364; Genmill v. W. VA.— Dent v. Pickens, 34 W. Brown, 25 Ind. App. 6, 56 N. E. 691. 854 CHAPTER V. PARTIES DEFENDANT ACTIONS EX CONTRACTU, EX DELICTO, AND SUITS IN EQUITY. § 632. In general — Plaintiffs can not be. § 633. At common law. § 634. Under procedural codes — In general. § 635. Joinder of defendants — In general. § 636. Persons who may be joined. § 637. Persons who must be joined — In general. § 638, Interest in or title to property. § 639. Persons necessary to complete determina- tion. § 640. Grounds for omitting or dispensing with parties defendant. § 641. Making defendants persons refusing to join as plain- tiffs. § 642. Annulling patent to land. § 643. Assessors — In actions against. § 644. Associations or unincorporated societies. § 645. Political parties. § 646. Breach of contract. § 647. Bringing in new parties — In general. § 648. Necessity for and grounds of. § 649. Jurisdiction and authority. § 650. Mode of bringing in. § 651. Common or general interest. § 652. Coparceners. § 653. Corporations. § 654. Decedent 's personal representative. § 655. Ejectment. § 656. Equity suits. § 657. Executors and administrators. § 658. Fictitious parties defendant. § 659. Fraud. § 660. In actions to determine conflicting claims to real property. 855 CODE PLEADING AND PRACTICE. [Pt. Ill, § 661. Infringement of patents. § 662. Injunction. § 663. Injury or death — Of minor child or ward. § 664. Of person not a minor. § 665. Injury to property caused by negligent or wrongful act. § 666. Interpleader — Conflicting claimants. § 667. Intervention — In general. § 668. Actions in which authorized. § 669. Grounds for and time of intervention. § 670. Application for leave to inteiwene : Proceedings on. § 671. Rights and liabilities of interveners. § 672. Proceedings after intervention. § 673. Joint tenants. § 674. Joint tort-feasors. § 675. Legacy charged on land. § 676. Married women — In general. § 677. In actions ex contractu. § 678. In actions ex delicto. § 679. Minors or infants, insane and incompetent persons. § 680. ]\Iisjoinder of defendants — In general. § 681. In suits in equity. § 682. Mortgage and mechanics' lien foreclosure. § 683. Non- joinder of defendants — In actions at law. § 684. In suits in equity. § 685. Time and mode of objecting. § 686. Persons severally bound on same obligation or instrument. § 687. Persons not bound. § 688. Principal and agent. § 689. Quo warranto — Parties plaintiff and defendant. § 690. Receivers. § 691. Specific performance — Constructive trust. § 692. Striking out defendants — In general. § 693. Persons who may not be dismissed. § 694. Substitution of parties— In general. § 695. Persons entitled to be substituted. § 696. Grounds for substitution. § 697. Application for substitution: Proceedings thereon. § 698. Mode of substitution of parties. § 699. Proceedings after substitution. 856 Ch. v.] DEFENDANTS — WHO CAN NOT BE. §§ 632, 633 § 700. Tenants in common. § 701. Tort actions. § 702. Trespass. § 703. Trustees. § 632. In general — Plaintiffs can not be. "We have already seen that a person can not sue himself.^ That is to say, a person can not be both plaintiff and defendant in an action at law, whether ex contractu or ex delicto, or in a suit in equity, in w^hatever different capacities he may act,^ and he sue in one capacity and defend in another.^ Under this general rule, when an action has gone to judgment and the judgment is subject to col- lateral attack, mere identity of the names of the plaintiff and defendant will not be taken to establish the fact that the plaintiff and defendant are one and the same person ; but as every presumption is to be indulged in favor of the judgment, the court mil presume that the plaintiff and defendant were separate persons having the same name.* Exception to the rule said to exist in the case of a rejected claim against the estate of a deceased person, when the guardian of the claimant and the administrator of the estate are one and the same person.^ <§ 633. At common law. At common law, all persons who were jointly liable on the same contract or obligation must be joined in an action thereon. In determining whether such liability was joint, the rule was that "sev- 1 See, ante, § 577. mon or charge himself as gar- 2 See Byrne, 94 Cal. 576, 29 Pac. nishee, see Baker v. Doe. 8S S. C. 1115. 30 Pac. 196; Buckeye Refin- 69, 34 L. R. A. (N. S.) 510, 70 S. E. 431, and note attached thereto in ing Co. V. Kelly, 163 Cal. 8, Ann. Cas. 1913E, 840, 124 Pac. 536; Habeiiy v. Haberly, 27 Cal. App, L. R. A. •". Buckeye Refining Co. v. Kelly, 163 Cal. 8. Ann. Cas. 101.1':. 840, 139. 149 Pac. 53. ^24 Pac. 536. See, also, cases cited, ante, § 577, 4 ](] footnote 2. .-, Habeiiy v. Habeiiy, 27 Cal. As to right of plaintiff to sum- App. 139, 149 Pac. 53, 857 H 634, 635 code pleading and practice. [Pt. Ill, eral persons contracting together with the same party for one and the same act shall be regarded as jointly, and not individually or separately, liable, in the absence of any express words to show that a distinct as well as entire liability was intended to fasten on the promisors."^ § 634. Under procedural codes — In general. The rule of the common law as to whether parties to a contract were bound jointly or severally has been changed by the procedural codes in most of the states having the re- formed system of judicature. In California, the Civil Code provides that when all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several;^ and that where a promise is made in the singular number, but is executed by several persons, it is presumed to be joint and several.- § 635. Joinder of defendants — In general. In regard to the joinder of parties defendant, the California code provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.^ Substantially the same provision is found in the procedural codes of Colorado,- Hawaii,^ Idaho,^ lowa,"^ Kansas,*' Missouri,'^ Nebraska,^ Nevada,^ New Mexico,^*^ 1 1 Chitty's Pleading (16th Am. parties of the first or second part ed.), p. 41. to covenants, agreements and con- 1 Kerr's Cyc. Cal. Civ. Code, tracts, in suing for non-payment, § 1659. non-acceptance, or non-fulfillment 1^ Id., § 1660. thereof, but it shall in no case be 1 Kerr's Cyc. Cal. Code C i v. necessary to serve all the joint Proc, § 379. parties sued with process. '^ Colo. C. C. P., § 11. 4 Idaho Code, § 4102. 3 Hawaii, § 1741. It s h a 1 1 be ^ j^^^ ^ode, § 346. ne<:essary to join as defendants in ^ ^ x, ., or . ., ,. ,, XI. • .. J ^ Kan. C. C. P., g o5. a civil action, all the joint and sev- f ral, or joint makers of promissory ''' Mo., § 543. r.otes. or drawers of drafts, bills « Neb., § 6668. of exchange, or orders, or joint 9 Nev., § 3108. and several obligors, lessees, or lo N. M., § 2685, subd. 5. 858 ch. v.] JOINDER OF DEPENDANTS. § 636 North Dakota,^^ Oklahoma/^ Oregon/' South Dakota,^^ Washington,^^ Wisconsin/^ and Wyoming.^' Under this provision all persons having a joint interest in the subject-matter of the action, or jointly liable therein, or who would be affected by the granting or withholding of the relief demanded therein, should be made parties defendant ;^'^ but where persons are not thus interested, or are not thus liable or affected, they are not proper defendants,^'-^ because they have no interests or rights to be affected by any judgment that may be recovered.-'^ § 636. Persons who may be joined. All per- sons who have or claim an interest in the subject-matter of the action may be joined as defendants.^ Thus, in an action affecting real estate, it is proper to join as defen- dants all who claim to have been in possession, because, if the proof substantiates that claim, it is proper for the court, by its judgment, to conclude them;- and in an action to annul a transaction by which the title to land was fraudulently acquired, not only all persons partici- pating in the fraud, but all who claim an interest in the land by means of or through the transaction, are properly joined as defendants.^ In those cases in which the whole transaction which is the subject-matter of the action grows out of a state of facts in which two or more persons are directly interested, and relates to a sum of money 11 N. D., § 6816. Action to recover land dedicated 12 Okla., § 4234. to a city, the heirs of the dedicator, 13 Ore § 394 ^°^ being in present possession, i4 Duryea v. Hale, 31 Conn. 217. Greenl.) 441; Hanley v. Donaghue, See authorities collected and dis- 59 Md. 239, 43 Am. Rep. 554; Smith cussed in note to 44 Am. Dec. 570- v. Miller, 49 N. J. L. 521; Hyde 574; 61 Am. Dec. 770; 81 Am. Dec. v. Van Valkenburgh, 1 Daly 444; 92 Am. Dec. 592; 13 Am. St. (N. Y.) 416; Gage v. Sartor, 1 Rep. 492. Treadw. (S. C.) 247; McCall v. Compare: Harker v. Brink, 24 Price, 1 McC. L. (S. C.) 82; Noyes N. J. L. (4 Zab.) 333. v. Barnard, 11 C. C. A. 424, 15 6 Wood V. Watkinson, 17 Conn. U. S. App. 527, 63 Fed. 782. 500, 44 Am. Dec. 562. lo Hyde v. Van Valkenburgh, 1 7 Joint and several obligation, Daly (N. Y.) 416. the rule is different, because in ii Harwood v. Roberts, 5 Me. (5 such a case the service of one is Greenl.) 441; Hanley v. Donoghue, regarded as equivalent to a service 59 Md. 239, 43 Am. Rep. 554; of all, and any judgment recover- Smith v. Miller, 49 N. J. L. 521. able will bind all.— W r i g h t v. ii: Tally v. Ganahl, 151 Cal. 418, Hicks, 1 Brayt. (Vt.) 22. 90 Pac. 1049; Cox v. Maddux, 72 But this doctrine does not now Ind. 206; Merriraan v. Barker, 121 prevail. See authorities cited in Ind. 80, 22 N. E. 992; Dennett v. footnote 12, this section. Chick, 2 Me. 191, 11 Am. Dec. 59; s As to non-joinder of defen- Tappan v. Bruen, 5 Mass. 193; dants, see, post, §§ 683-685. Noyes v. Barnard, 11 C. C. A. 424, Harwood v. Roberts, 5 Me. (5 15 U. S. App. 527, 63 Fed. 782. 1 Code PI. and Pr.— 55 gg5 §641 CODE PLEADING AND PRACTICE. [Pt. Ill, the parties before tlae court, he can not be heard to object on the ground of non-joinder.^^ §641. Making defendants persons refusing to JOIN as plaintiffs. The California procedural code pro- vides that if the consent of one who should have been joined as a plaintiff in the action can not be obtained, he may be made a defendant, the reason therefor being stated in the complaint;^ and a similar provision is found in other procedural codes. This provision of the code applies, alike, to actions at law- and suits in equity.^ A corporation, having, by virtue of its contract with the plaintiff's testator and ancestor, an interest in the subject-matter of the suit, and a right to take part in the litigation to obtain a restitution of an alleged lost deed, the plaintiff is justified, under the rules of good pleading, 13 Inbusch V. Farwell, 66 U. S. (1 Black.) 566, 571, 17 L. Ed. 188. See Barney v. Baltimore, City of, 73 U. S. (6 Wall.) 280, 18 L. Ed. 825; Noyes v. Barnard, 11 C. C. A. 424, 15 U. S. App. 527, 63 Fed. 782; .loll V. Howe, 4 C. B. 254, 56 Eng. C. L. 254. 1 See Kerr's Cyc. Cal. Code Civ. Proc, § 382. See: ARK.— Ingra- ham Lumber Co. v. IngersoU, 93 Ark. 447, 20 Ann Cas. 1002, 125 S. W. 139. COL O.— First Nat. Bank v. Hummel, 14 Colo. 259, 20 Am. St. Rep. 257, 8 L. R. A. 788, 23 Pac. 986. IND. — Johnson v. Gwinn, 100 Ind. 466. KAN.— Grain Dealers' Mut. Fire Ins. Co. v. Mis- souri, K. & T. R. Co., 98 Kan. 344, 157 Pac. 1187. KY.— Paducah, T. & A. R. Co. V. Dipple, 16 Ky. L. Rep. 62. NEB. — Union Pac. R. Co. v. Vincent, 58 Neb. 171, 78 N. W. 457. ORE. — Williams v. Pacific Surety Co., 66 Ore. 151, 127 Pac. 145. S. D.— Jerome v. Rust, 23 S. D. 409, 122 N. W. 344, reversing 21 S. D. 191, 110 N. W. 780. WYO.— Little- ton V. Burgess, 16 Wyo. 58, 16 L. R. A. (N. S.) 49, 91 Pac. 832. Refusal to join need not be stated in the complaint in Ne- braska. — Union Pac. R. Co. v. Vin- cent, 58 Neb. 171, 78 N. W. 457. Rule does not apply when the plaintiff may sue for and recover his interest independent of the party refusing to join; as in eject- ment by one claiming as joint owner of an undivided interest. — See, post, § 655. 2 In Oregon, under provision of § 381, the rule does not apply to actions at law. — State Ins. Co. v. Oregon R. & Nav. Co., 20 Ore. 563, 26 Pac. 838. But see Williams v. Pacific Surety Co., 66 Ore. 151, 127 Pac. 145. 3 Andrews v. Mokelumne Hill Co., 7 Cal. 330. See Jobst v. Hay- den, 84 Neb. 735, 50 L. R. A. (N. S.) 501, 121 N. W. 957. 866 Ch. v.] ANNULLING PATENT — ASSESSORS. §§ 642. 643 in making such corporation a party defendant to his suit.* And where a foreign corporation has the primary right to prosecute an action, and fails to do so, such corporation is a necessary party defendant in an action brouglit by a stockhokler complaining of a wrong to said corporation, and, through it, to the stockholders. Where a complaint is filed, therefore, in which such corporation is not made a party, it is demurrable upon ground of defect of par- ties.^ § 642. Annulling patent to land. In an action to set aside a patent to land, the patentee is a necessary party defendant. His rights can not be determined or impaired in any side-suit between third parties. ^ <§ 643. Assessors — In actions against. Assessors of property for purposes of taxation under the laws, in the performance of their duties as such, act in a judicial or quasi-judicial capacity, and are not liable in a civil action for damages for mere errors or mistakes of judgment in the performance of their official duties ;i but they are liable for assessing an illegal tax which the party injured is compelled to pay,^— as well as for fraud and malice in See 20 R. C. L. 672, §12. ertson, 16 Utah 330, 52 Pac. 1. 4 Stevens v. Fitzpatrick, 218 Mo. FED. — Bailey v. Berkey, 81 Fed 708, 118 S. W. 51, 55. 737. 5 Elmergreen v. W e i m e r, 138 2 See: CONN. — Williams v. Wis. 112, 119 N. W. 836, 838. Brace, 5 Conn. 190; Thames Mfg.' 1 Boggs V. Merced Min. Co., 14 Co. v. Lathrop, 7 Conn. 550. ME. Cal. 279; Yount v. Howell, 14 Cal. — Mosher v. Robie, 11 Me. 135; 405, 469; Pioche v. Paul, 22 Cal. Herriman v. Stowers, 43 Me. 497. ni; Turner v. Donnelly, 70 Cal. MASS.— Stetson v. Kempton. 13 597, 604, 12 Pac. 469; Miller v. Mass. 272, 7 Am. Dec. 145; Gage Grunsky, 141 Cal. 441, 66 Pac. 858, v. Currier, 21 Mass. (4 Pick.) 399; 75 Pac. 48. Inglee v. Bosworth, 22 Mass. (5 1 IOWA— Stevens v. Carroll, 130 Pick.) 498, 16 Am. Dec. 419; Free- Iowa 463, 104 N. W. 433. ME.— man v. Kenney, 32 Mass. (15 Pick.) Rowe V. Friend, 90 Me. 241, 38 Atl. 44; Little v. Merrill, 27 Mass. (10 95. MICH.— Mead v. Haines, 81 Pic k.) 543. N. Y.— Palmer v. Mich. 261, 45 N. W. 836. NEV.— Lawrence, 6 Lans. (N. Y.) 282. Ford v. McGregor, 20 Nev. 446, 23 UTAH— Taylor v. Robertson, 16 Pac. 508. UTAH— Taylor v. Rob- ITtah 330, 52 Pac. 10. VT.— Fuller 867 §644 CODE PLEADING AND PRACTICE. [Pt. Ill, fixing a false and exorbitant valuation,^— even though they act judicially or quasi-judicially and in good faith.-* Where assessors are liable they may be sued jointly or severally, in Massachusetts, and perhaps elsewhere, for illegally assessing and collecting a tax.^ <^ 644. Associations or unincorporated societies. We have already seen that where the subject-matter in con- troversy is one of a common or general interest of many persons, or the parties are numerous and it is incon- venient or impracticable to bring them all before the court, one or more may sue on behalf of themselves and all the others.^ This doctrine of virtual representation applies to defendants equally with plaintiffs, under the special provision of the California code^ and other pro- cedural codes. Thus, a portion of the members of an unincorporated religious society, or other unincorporated society, or association, or club,^ may be sued for all, where V. Gould, 20 Vt. 643. FED.— Thurs- ton V. Martin, 5 Mas. 497, Fed Cas. No. 14018. See, also, notes 16 Am. Dec. 422; 23 Am. Dec. 521; 24 Am. Dec. 121; 40 Am. Dec. 156. Adding collector's fees to sum legally assessed. — Mosher v. Robie, 11 Me. 135. Duty to keep within authority strictly. — (dis. op.) Sharp v. Engle, 3 Okla. 10, 41 Pac. 346. Poll-tax assessed upon a person in a town in which he is not a resident. — Freeman v. Kenney, 32 Mass. (15 Pick.) 44; Dickinson v. Billings, 70 Mass. (4 Gray) 44. Stock assessed in one county, and certificate of assessment de- livered to assessor in county into which stock driven for pasture; assessor of latter county liable for assessing a second time. — Taylor V. Robertson, 16 Utah 330, 52 Pac. 1. 3 Mass V. Cummings, 44 Mich. 359, 6 N. W. 843. 4 New York Milk Products Co. v. Damon, 172 N. Y. 661, 65 N. E. 1119, affirming 57 App. Div. 261, 68 N. Y. Supp. 183. 5 Withington v. Eveleth, 24 Mass. (7 Pick.) 106. See, post, § 694. 1 See, ante, § 593. 2 Kerr's Cyc. Cal. Code Civ. Proc, § 382. 3 Unincorporated societies, in the absence of statutory provisions, can not sue or be sued in their association name; but must sue and be sued in the names of the individuals composing the same, however numerous they may be; but the doctrine of virtual repre- sentation allows some to sue for all (see, ante, § 593), and some to defend for all. Such societies, in the absence of statutes recogniz- ing them, have no legal entity dis- 868 ell. V. UNINCORPORATED SOCIETIES, ETC. §ti44 it is alleged in the complaint that all the members of such society, or association, or club, have a common and per- sonal interest in the subject-matter of the action set forth, and that they are so numerous as to render it difficult or inconvenient to name them all,* it being sufficient, under the rule of virtual representation, if it is shown to be difficult or inconvenient to join all,"^ although the impossibility of joining all is narrowly contended for.^ In such an action the proper method is to select as defendants persons who are, or may properly be said to be, proper representatives of the whole class of defen- dants, and who are members of the society, or organiza- tion, or club, describing the class to which they belong and stating that the parties are numerous.'^ tinct from that of their members. —Nightingale v. Barney, 4 G. Greene (Iowa) 106; Steamboat Pembinaw v. Wilson, 11 Iowa 497; St. Paul Typothetae v. St. Paul Bookbinders' Union, 94 Minn. 351, ''. Ann. Cas. 695, 102 N. W. 725; Mexican Mill v. Yellow Jacket Sil- ver Min. Co., 4 Nev. 40, 97 Am. Dec. 510; Pearson v. Anderburg, 28 Utah 495, 80 Pac. 407. Unincorporated organizations or voluntary associations are in some cases regarded as copartnerships, and governed by the general laws apvilicable to that relation. The position such organizations occupy under the law is not fully agreed upon by the courts. A distinction is made between those organized, first, for the purpose of conducting some business enterprise, and, second, those whose purpose is wholly the promotion of the in- terests and welfare of their mem- bers, unaccompanied by any busi- ness functions. As to the latter class, it would seem that the law of principal and agent should ap- ply: and a union composed of persons, firms, and corporations engaged in publishing and book- binding, and employing printers necessary to carry on and conduct their several enterprises, has been held to be such a class. — St. Paul Typothetae v. St. Paul Bookbind- ers' Union, 94 Minn. 351, 3 Ann. Cas. 695, 102 N. W. 725. i Wheelock v. First Presbyterian Church, 119 Cal. 477, 51 Pac. 841; Pickett V. Walsh, 192 Mass. 572, 116 Am. St. Rep. 272, 7 Ann. Cas. 638, 6 L. R. A. (N. S.) 1067: Rey- nolds V. Davis, 198 Mass. 294, 17 L. R. A. (N. S.) 162, 84 X. E. 457; Mannix v. Purcell, 46 Ohio St. 102, 15 Am. St. Rep. 562, 2 L. R. A. 753, 19 N. E. 572. 5 Wendell v. Van Rensselaer, 1 Johns. Ch. (N. Y.) 344; Nashville & D. R. Co. V. Orr, 85 U. S. (18 Wall.) 471, 21 L. Ed. 810. i> See note Ann. Cas. 1913C, 654. " Reynolds v. Davis, 198 Mass. 294, 17 L. R. A. (N. S.) 162, 84 N. E. 457. See 20 R. C. L. 672, § 11. 869 §§ 645, 646 CODE pleading and practice. [Pt. Ill, Suit by associate name is especially provided for in California, in all cases in which two or more persons are associated in business, and transact such business, under a common name, whether that name comprises the names of the persons thus associated or not; the summons in such cases being served on one or more of the associates, and the judgment in the action being binding on all the joint property of the association, and also upon the indi- vidual property of the associates served with process, in the same manner as if all the associates had been named defendants, sued upon their joint liability and all served with process.^ § 645. Political parties. Under the laws of Cali- fornia a political party may maintain or defend an action in the party name for the enforcement of rights conferred upon the party in its representative capacity. Such par- ties are in all essential respects identical with corporate bodies not organized for profit.^ § 646. Breach or contract. The general rule is that in an action for the breach of a contract, the parties to the contract and those who have an interest in the subject- matter of the dispute are the only persons who are re- quired to be made parties defendant;^ but where the obligation of the parties to the contract is joint and not several they must all be joined as defendants,^ unless otherwise provided by statute,^ or unless one or more of the parties thus bound is dead, or absent from the state"* 8 Kerr's Cyc. Cal. Code Civ. (S. C.) 162, 33 Am. Dec. 98; Gil- Proc, 2d ed., §388; Consolidated man v. Rivers, 35 U. S. (10 Pet.) Supp. 1906-1913, p. 1420. 298, 9 L. Ed. 432; Sissions v. John- ilndependence League v. Tay- son, 95 U. S. 347, 24 L. Ed. 596; lor, 154 Cal. 179, 97 Pac. 303. Card v. Hines, 35 Fed. 598. 1 Barber v. Cazalis, 30 Cal. 92. 3 Gossom v. Bradgett, 09 Ky. -'Kimmel v. S h u 1 1 z, 1 111. (1 (Bush) 97, 99 Am. Dec. 658; Swain Brees.) 128; Robertson v. Stnith, v. Kenny, 93 U. S. 289, 23 L. Ed. 18 Johns. (N. Y.) 459, 9 Am. Dec. 926. 227; Patton v, Magrath, 1 Rice L. 4 See, ante, § 640. 870 ell. v.] BRINGING IN NEW PARTIES. § 647 and has no property within the jurisdiction of the court.^ Ill a suit to enforce a covenant not to carry on a certain trade, the original covenantor is not a proper party if he has parted mth all interest and is not in fault.** It is held in Massachusetts that heirs are jointly chargeable, as assigns on a covenant of their ancestor which runs with the land that descends to them."^ So, with guardians sev- erally appointed for different heirs. * In New York, persons severally liable should not be joined in the same action as defendants.'* § 647. Bringing in new parties — In general. We have already seen that all persons who are necessary to the full determination of the controversy before the court must be made parties defendant.^ In those cases in which a complete determination of the controversy can not be had, the trial court must order the persons whose pres- ence is necessary to such complete determination to be brought in.- This provision of the code is mandatory, and can not be waived by a failure to object, on the ground of proper and necessary parties, either by answ^er or by demurrer.^ It is the duty of the court, at any time during the progress of the case, whenever it appears that a com- plete determination of the controversy can not be had with the parties before the court, of its own motion, to order the necessary parties to be brought in, and its failure to do so is fatal to any judgment that may be rendered.^ This right on the part of the court may be 5 Dennett v. Chick, 2 Me. (2 N. Y. Super. Ct. Rep. (2 Duer) 626; Greenl.) 191, 11 Am. Dec. 59. Spencer v. Wheelock, 11 N. Y. Leg. See 20 R. L. C. 677, § 16. Obs. 329. Clements v. Welles, L. R. 1 Eq. i See, ante, § 639. 200. 2 Kerr's Cyc. Cal. Code C i v. T Morse v. Aldrich, 42 Mass. (1 Proc, 2d ed., §389; Consolidated Mete.) 544. Supp. 1906-1913, p. 1420. ■s Donahue v. Emery, 50 Mass. (9 3 Mitau v. Roddan, 149 Cal. 1, 6 Mete.) 63. L. R. A. (N. S.) 275, 84 Pac. 145. ".' Phalen v. Dingee, 48 D. Smith 4 Id.; Grain v. Aldrich, 38 Cal. (N. Y.) 379; Le Roy v. Shaw, 9 514, 99 Am. Dec 423; O'Connor v. 871 § 647 CODE PLEADING AND PRACTICE. [Pt. Ill, exercised at any time during the course of the trial at which time the necessity becomes apparent.^ This provision of the code does not authorize the bring- ing of an action in the first instance against two or more persons upon the theory*^ that if one is not liable upon a ' certain state of facts one or more of the other persons made defendants may be; and that the court, on ascer- taining who is liable, shall render judgment against such defendant or defendants.'^ The bringing in of new parties does not necessarily change the cause of action or destroy the right thereto- fore conferred upon a guardian ad litem under an order authorizing such guardian to bring his action against one of the defendants alone, -^ Thus where a suit was brought in the name of an incorporated church, and the amend- ment consisted of bringing in the names of members of the church, substituting the parties having the legal right to sue for the claim for which the action was brought, in the place of a party improperly named as plaintiif, did not operate as the commencement of a new action, and therefore an amendment changing the name was per- missible.^ And where a suit was commenced against the *' Abilene Milling Company, a corporation, and W. H. Yohe and — Glade and John Doe," and, after learning that a mistake was made in supposing the defendant com- pany was a corporation, leave was asked to amend by making an entire substitution of new names of the per- Irvine, 74 Cal. 442, 16 Pac. 236; Action against A and B, "late Winter v. McMillan, 87 Cal. 265, 22 partners," amended by omitting Am, St. Rep. 243, 25 Pac. 407. the words "late partners," and 5 Merchants' Trust Co. v. Bentel, making all the persons interested 10 Cal. App. 75, 78, 101 Pac. 1103. ^^^^.^^ ^^ ^^^^ ^^j^. ^^^,^ ^^^ ^^ jq. 6 As to theory of the case, see, ^^^^^^^ ^ ^^^ ^^^^^ ^^ action.- ante, §§529-534. „ , „ ,•,. r,o --, . ncA ' ^, -r A r^ lA Stewart v. Spaulding, 72 Cal. 264, T Hannon v. Nuevo Land Co., 14 Cal. App. 700, 112 Pac. 1103. ^^ ^^^- ^^'^r s Skinner v. Knickrehm, 10 Cal. o Lilly v. Tobbein, 103 Mo. 477. App. 596, 102 Pac. 947, 949. 23 Am. St. Rep. 887, 15 S. W. 618. 872 Ch. v.] NEW PARTIES — NECESSITY AND GROUNDS. § 648 sons doing business as the Abilene Milling Company; such an amendment was held to be permissible under the code authorizing the court to add, by way of amend- ment, the name of the only substantial party plaintiff or defendant, where such amendment would not be in effect the institution of an entirely new suit.^^ But any attempt to change a cause of action against a corporation to one against defendants as indi\dduals can not be permitted under the guise of an amendment bringing in necessary new parties. ^^ § 648. Necessity for and grounds of. In those cases in which a new party is sought to be brought in by a cross-complaint, where such party is not necessary to the complete determination of the controversy before the court, such party will not be ordered to be brought in ;^ but where such party is necessary to the full deter- mination of the controversy raised by such cross-com- plaint, which controversy is required to be determined by the court in that action, such party must be ordered brought in under the provisions of the California code as set out in the last section.- It has been said that the power of the court to order the bringing in of new par- ties for the full determination of the controversy before the court is discretionary,^ and that its action in bringing 10 Glover & Son Commission Co. i Reed v. Wing, 168 Cal. 706, 144 V. Abilene Milling Co., 136 Mo. App. Pac 964 365. 116 S. W. 1112, 1113. See Lilly /gee 'winter v. McMillan. 87 V. Tobbein, 103 Mo. 477, 23 Am. St. Cal. 256, 265. 22 Am. St. Rep. 243, 25 Pac. 407; Eureka, City of, v. Rep. 887, 15 S. W. 618; Altheimer V. Teuscher, 47 Mo. App. 284; Hajek V. Benevolent Soc, 66 Mo. ^^^es, 120 Cal. 54, 52 Pac. 125: App. 568; Jordan v. Chicago & MacKinzie v. Hodgkin, 126 Cal. A. R. Co., 105 Mo. App. 446, 79 591, 77 Am. St. Rep. 209, 59 Pac. S. W. 1155. 26. 1 1 Dodge V. Chambers, 43 Colo. 3 Provision mandatory and not 366, 96 Pac. 178, 181. See Thomp- in the discretion of the tiial judge, son V. White, 25 Colo. 226, 240, 54 according to decisions of the state Pac. 718, 724; Davis v. Johnson, 4 supreme court. — See, ante, § 647, Colo. App. 545, 548, 36 Pac. 887. footnote 9. 873 § 649 CODE PLEADING AND PRACTICE. [Pt. Ill, in new parties on the coming in of a cross-complaint, to which the plaintiff is made a defendant, will not be dis- turbed where the plaintiff made no objection at the time and saved no exception to the order of the court.^ New parties should he ordered brought in where the answer filed in the case shows that they are necessary to the full determination of the controversy before the court,^ as where it is alleged that purchasers from defen- dant before suit are not made parties;® or where the contract sued upon is joint in its nature, and all the obligees are necessary parties to the action but some are not before the court/ In an action to rescind certain notes and cancel a mortgage on specified lands, where the lands have been purchased pendente lite, the purchaser should be brought in as a defendant f and in an action to declare a resulting trust^ as to stock in a corporation, where it appears that one not a party to the suit has an interest in the stock, it is the duty of the court, on motion, to order such party brought in as a defendant, and a failure to do so is error. ^^ <^ 649, Jurisdiction and authority. We have al- ready seen that it is not only within the power, but that it is the mandatory duty,^ to order brought in all persons as parties to the action who are necessary to a complete determination of the controversy before the court,- and that the court not only may but should make such order of its owTi motion,^ under the provisions of the California 4 Syvertson v. Butler, 3 Cal. App. lo O'Connor v. Irvine, 74 Cal. 345, 85 Pac. 164. 435, 16 Pac. 236. 5 See, ante, § 647, footnote 4. See, also, ante, § 639, footnote 4. 1 Syvertson v. Butler, 3 Cal. App. 6 Robinson v. Gleason, 53 Cal 38. 345, 85 Pac. 164, to the effect that the court's power is "discretion- 7 Harrison v. McCormick, 69 Cal. ^^ ., j^ thought not to be a sound 616, 11 Pac. 456. construction of the statutory pro- 8 Matteson v. Wagoner, 147 Cal. vision. 739, 82 Pac. 346. 2 See, ante, § 647, footnote 3. 9 As to actions to enforce con. 3 Robinson v. Gleason, 53 Cal. 38. structive trusts, see, post, § 691. See, ante, § 648, footnote 2. 874 eh. v.] MODE OF BRIXGIXG IX PARTIES. § G50 Code of Civil Procedure.^ This rule is especially ap- plicable in suits in equity, where complete equity can not be done without the presence of other persons as parties f and this includes persons who purchased an interest in tlie property which is the subject-matter of the action or suit pendente lite'' and after issue joined on the original com- plaint/ But the right is limited to the persons properly parties under the issues as framed in the pleadings in the case ; a stranger to the action can not require the bringing in of new parties. Thus, under the provisions of the Cali- fornia procedural code,^ permitting a defendant who seeks affirmative relief relating to the contract on which the action is brought, or affecting the property- which is the subject-matter of the action or suit, in addition to his answer, to file a cross-complaint, applies primarily to the person or persons whom the plaintiff has made defen- dants in the action at law or suit in equity ; and before any other person can take advantage of the statutory provision he must be made a party to the action, and his proposed cross-complaint must be such as will warrant the court in ordering him brought in as a party defen- dant.^ § 650. Mode of bringing in. In those cases in which the court finds that persons not before the court are necessary parties to a full and complete determination of the controversy before the court, the trial judge may order such parties to be brought in by an amended com- plaint,^ supplemental complaint,^ or on motion simply 4 De Leonis v. Hammel, 1 Cal. Proc, 2d ed., §442; Bien. Supp. App. 390, 82 Pac. 349. 1915, p. 3066. 5 Huber v. Clarke, 1 Cal. Un- » East Riverside Irr. D i s t. v. rep. 419. Halcomb, 126 Cal. 315, 58 Pac. 817. 6 Matteson v. Wagoner, 147 Cal. i Harrison v. McCormick, 69 Cal. 739, 82 Pac. 346. 616, 621, 11 Pac. 456; People's 7 People's Ditch Co. v. Seventy- Water Ditch Co. Seventy-six Land Six Land & Water Co., 5 Cal. Un- & Water Co., 5 Cal. Unrep. 292. rep. 292, 44 Pac. 176. 44 Pac. 176. 8 Kerr's Cyc. Cal. Code C i v. 2 See, ante, § 639. 875 §§ 651, 652 CODE PLEADING AND PRACTICE. [Pt. Ill, and without service of process f but it seems that it may not be done by way of cross-complaint.^ § 651. Common or general interest. Under the pro- visions of the California and other procedural codes, those who are united in interest must be joined as parties, but that when the interest is common or general of many persons, one or more may defend for all.^ The whole question of virtual representation has been sufficiently discussed in the section treating of associations, societies and clubs.- § 652. Coparceners. Under the California procedural code, any number of coparceners may defend any civil action or proceeding for the protection of the rights of such parties.^ In an action against a partnership, the partners may be sued under their common name, whether it includes or comprises the names of the persons asso- ciated or not;- and when the obligation which is the subject-matter of the action shows on its face that it is a partnership obligation, a direct averment that defendants were partners is not essential.^ The California code pro- vides^ that in an action against an association, including copartners, the judgment may run against the joint and individual property of the partner served, and against the joint property of the partner not served. The con- stitutionality of the statute, in so far as it attempts to impose a liability upon the person or property of the partner not served, has been doubted in some cases,^ and 3 Emeric v. Alvarado, 64 P a c. 2 See, ante, § 644, footnote 8, and 529, 2 Pac. 418. text. 4 Clark V. Kelley, 163 Cal. 207. ' ^allock v. Jaudin. 34 Cal. 167. 124 Pac. 846. -^'^- , ^ ^ , ^ ^ ^• 4 Kerr's Cyc. Cal. Code C i v. 1 Kerr's Cyc. Cal. Code Civ. p^^^ ^ gd ed., §388; Consolidated Proc, § 382. S^jpp i906-1913, p. 1420. 2 Supra, § 644. " ^^ Tay v. Hawley, 39 Cal. 93. But 1 Kerr's Cyc. Cal. Code C i v. see Welch v. Kirkpatrick, 30 Cal. Proc, § 384. 202, 89 Am. Dec. 85. 87G ch. v.] COPARCENERS — AS DEFENDANTS. § 652 raised but not decided in others.^ But a party can only ])e bound on a note executed in a firm name, who is actually a member of the firm executing the same, or has held him- self out as a member so as to give the firm credit on liis responsibility. So, it would seem dormant partners not disclosed need not be joined as defendants." All partners are liable for fraudulent representations of one made in the course of partnership business.^ So a partner is liable to third persons for injuries occasioned by negligence, if committed in the course of the partnership business." In suit to take an account and dissolve a mining partner- ship, all those owning interests are necessary parties defendant.^^ A partner may be sued at law by his copart- ner or one who has been such, where the balance has been ascertained by the act of all the partners, and agreed to as constituting such balance,^ ^ but not until such balance has been ascertained.^^ But one partner may maintain an 6 Booth V. Gamble-Robinson Co., 139 Cal. 175, 177, 72 Pac. 908. 7 See: KAN.— Pitkin v. Benfer, 50 Kan. 108, 34 Am. St. Rep. 110, 31 Pac. 695. MD.— Mitchell v. Doll, 2 Har. & G. 159. MASS.— Lord v. Baldwin, 23 Mass. (6 Pick.) 352; Wood V. O'Kelley, 62 Mass. (8 Gush.) 406. MO.— Hahlo v. Mayer, 102 Mo. 93, 22 Am. St. Rep. 380, 13 S. W. 804, 15 S. W. 750. N. Y.— Clarkson v. Carter, 3 Cow. 84; New York Dry Dock Co. v. Treadwell, 19 Wend. 525; North v. Bloss, 30 N. Y. 374; Hurlbut v. Post, 14 N. Y. Super. Ct. Rep. (1 Bosw.) 28. s Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 386. 9 Hess V. Lowrey, 122 Ind. 225, 17 Am. St. Rep. 355, 7 L. R. A. 90, 23 N. E. 156; Whittaker v. Collins, 34 Minn. 299, 57 Am. Rep. 55, 25 N. W. 632; Cotter v. Bettner, 14 N. Y. Super. Ct. Rep. (1 Bosw.) 490. As to liability of partners for torts, see note 51 L. R. A. 463. As to liability of one partner for tortious acts of another, see note 93 Am. St. Rep. 666. 10 Settembre v. Putnam, 30 Cal. 490. Mining partnership combining some of the incidents of ordinary trade partnerships, and some of the incidents of tenancies in com- mon. — Settembre v. Putnam, 30 Cal. 490, 493. 11 Ross V. Cornell, 45 Cal. 133: Hoff V. Rogers, 67 Miss. 208, 19 Am. St. Rep. 301, 7 So. 358; Newhy V. Harrell, 99 N. C. 149, 6 Am. St. Rep. 503, 5 S. E. 284. 12 Id.; Caurse v. Prince, 1 Mill. Const. (S. C.) 416, 12 Am. Dec. 649; Bruce v. Hastings, 41 Vt. 380, 98 Am. Dec. 592. See note 12 Am. Dec. 649-656. 877 §§653,654 CODE PLEADING AND PRACTICE. [Pt. Ill, action in damages against another partner for injury to the firm business.^^ <§> 653. Corporations. Corporations are made suable in their corporate name. We have already discussed the changing of a suit brought against a corporation to one against individuals, on learning that there was in fact no incorporation/ so long as there is no change in the cause of action.- In an action by a stockholder seeking relief against directors who are improperly diverting the funds of the corporation, it is not necessary to join as parties directors whose acts are not complained of, but it is necessary that the corporation should be joined, as the action, though in the name of the plaintiff, is in reality in behalf of the corporation.^ Such an action may be brought without joining other stockholders as well as on behalf of other stockholders.* <^ 654. Decedent 's personal representative. An execu- tor or administrator of a deceased joint obligor may be joined as a defendant with the surviving obligor or obli- gors.^ At common law there were valid formal reasons against joining the executor or administrator of a joint and several obligor with the surviving obligor or obli- gors, and such joinder was formerly not permitted in California;- but since the enactment of the procedural code^ providing that "any person may be made a de- fendant who has or claims an interest in the controversy 13 Boughner v. Black, 83 Ky. 521, •* Id.; McConnell v. Combination 4 Am. St. Rep. 174. Min. & Mill. Co., 30 Mont. 239, .As to power and authority of 250, 104 Am. St. Rep. 703, 76 Pac. partners, their mutual obligations, 194. liabilities, etc., see Kerr's Cyc. Cal. i Bostwick v. McEvoy, 62 Cal. Civ. Code, §§2424-2520. 496; Briggs v. Brun, 123 Cal. 657, 1 See, ante, § 647, footnote 10, 56 Pac. 886. and text. 2 Humphreys v. Crane, 5 Cal. 2 See Id., footnote 4, and text. 173; May v. Hanson, 6 Cal. 642. 3 Wickersham v. Crittenden, 93 3 Kerr's ' Cyc. Cal. Code C i v. Cal. 17, 28 Pac. 788. Proc, § 379. 878 Ch. v.] DEFENDANTS — IN EJECTMENT. § 655 adverse to the plaintiff,* or who is a necessary party to a complete determination or settlement of the question involved therein,^ the connnon-Iaw formal reasons are done aAvay with, and in suits on joint obligations the per- sonal representatives of a deceased obligor may be made a party defendant with the surviving obligors." § 655. Ejectment. The rule as to making parties defendant person who are proper parties plaintiff but who refuse to join as plaintiffs^ does not apply in the case of ejectment,- for the reason that under the provi- sion of the California procedural code, and other pro- cedural codes wdth like provisions, persons holding as joint tenants,^ or as tenants in common,* may severally bring and prosecute suits for the enforcement or protec- tion of the rights of such party.^ In bringing actions in ejectment, the general rule is that the action should be commenced against, and can ])e maintained against, only the real party in possession, {.Ithough he is not personally on the premises, but may be in possession through servants and employees.*^ A mere party, in charge for others, is not an occupant.''' But an officer of the United States in possession, on behalf of the government, of the demanded premises may be made defendant.^ Where the defendant in ejectment has pos- 4 See, ante, § 636. 6 Polock v. Mansfield, 44 Cal. 36, 5 See, ante, § 637. 13 Am. Rep. 151; Shaw v. Hill, S3 6 Lawrence v. Doolan, 68 Cal. Mich. 322, 21 Am. St. Rep. 607, 47 309, 5 Pac. 484, 9 Pac. 159; Briggs N. W. 247. See Valentine v. Ma- V. Breen, 123 Cal. 657, 662, 56 Pac. honey, 37 Cal. 389. 633, 886; Fisher v. Hopkins, 4 7 Hawkins v. Reichert, 28 Cal. Wyo. 379, 62 Am. St. Rep. 38, 34 534; People v. Ambrecht, 11 Abb. Pac. 899. Pr. (N. Y.) 97; affirmed, 24 How- 1 See ante, § 641. Pr. 610. 2 Paducah & A. R. Co. v. Dipplo, s Polock v. Mansfield, 44 Cal. 36, 16 Ky. L. Rep. 62. 40-3, 13 Am. Rep. 151; King v. La 3 S^ie, post, § 673. Grange, 61 Cal. 227, 230; Lee v. 4 See, post, § 700. Kaufman, 3 Hughes 36, 98 Fed. 5 Kerr's Cyc. Cal. CoJo Civ. Cas. No. 8191; Miller v. Blockett, Proc, § 384. 47 Fed. 547, 548. 870 § 655 CODE PLEADING AND PRACTICE. [Pt. Ill, session and a life-estate in the property, his heirs can not be made parties defendant ^\ath him in the proceed- ings.^ A railroad company who have simply laid rails on a public highway are not occupants.^'' But if the landlord be joined with the tenant as defendant in an action of ejectment, judgment, if for the plaintiff, must be against both.^^ In ejectment to recover an undivided interest in a mining claim, it is not necessary to include as defendants those holding the other undivided inter- ests.^^ A landlord may come in and defend in an action in ejectment, where summons is served on a tenant, by a proper showing, even after a default is taken. The stat- ute should in such cases be construed so as to dispose of actions of this character as nearly on their merits as possible, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided. ^^ A landlord may defend in the name of the tenant, but not in his o\\ti name.^* Persons renting different apartments in the same house may be joined as defendants. ^^ And the same is true of parties claiming title, accompanied by acts of ownership, to unoccupied premises. ^^^ And any number may be made defendants, subject to their right to answer separately.^^ As to when public officer as- i^ See Garner v. Marshall, 9 Cal. suming to act for government sub- 270; Dimick v. Deringer, 32 Cal. ject to suit, see note 108 Am. St. 488; Valentine v. Mahoney, 37 Cal. Rep. 830. 393; Hussman v. Wilke, 50 Cal. ;• Allen V. Ranson, 44 Mo. 263, 250. 100 Am. Dec. 282. 15 Pearce v, Calden, 8 Barb. 10 Redfield v. Utica & Syracuse (N. Y.) 522. R. Co., 25 Barb. (N. Y.) 54. 16 Garner v. Marshall, 9 Cal. 11 Kerr's Cyc. Cal. Code Civ. 268; Taylor v. Crane, 15 How. Pr. Proc, § 379. (N. Y.) 358. 12 Waring v. Crow, 11 Cal. 366. 17 Wlnans v. Christy, 4 Cal. 70, 13 Roland v. Kreyenhagen, 18 60 Am. Dec. 597; Ritchie v. Dor- Cal. 455; Barrett v. Graham, 19 land, 6 Cal. 33; Ellis v. Jeans, 7 Cal. 632; Ried v. Calderwood, 22 Cal. 417; Curtis v. Sutter, 15 Cal. Cal. 465; Bailey v. Taafe, 29 Cal. 264; Marion v. Fager, 15 Cal. 276; 424. Leese v. Clark, 28 Cal. 35; An- C80 Cll. v.] DEFENDANTS — IX SUITS IX EQUITY. § G5C <§> 656. Equity suits. The rule that all persons who have or claim an interest in the subject-matter of the action adverse to the plaintiffs, or whose interests would be adversely affected by any judgment the plaintiff's might recover therein, are proper parties,^ and that all persons who are necessary to a complete adjudication and determination of the controversy before the court are necessary parties,^ applies in suits in equity as well as in actions at law,^ But this rule does not extend so as to include all persons who may be consequentially interested in the suit;^ although we will see in a later section that a cestui que trust may be made a party de- fendant, in an action by creditors to reach trust property, in those cases in which the facts and circumstances justify it.^ In those cases in which the rights the plaintiff seeks to enforce, or the relief he demands, are the same against and affect alike all of several persons, they may be prop- erly joined as defendants, notwithstanding the fact that their interests and obligations among themselves are dis- tinct and independent.^ Thus, in an action to rescind a contract for the purchase of the capital stock of a cor- poration, and to recover the money paid thereon, because of fraudulent representations made to induce the pur- chase of such stock, the corporation is a necessary defen- dant," and may be joined with a stockholder owning or drews v. Corlile, 20 Colo. 370, 38 840. IOWA— Bowers v. Kee- Pac. 465; Fosgate v. Herkimer secher, 9 Iowa 422. ME. — Bugbee Mfg. & Hydr. Co., 12 Barb. (N. Y.) v. Sargent, 23 Me. 269. MASS.— 352; affirmed, 12 N. Y. 580; Wal- Dimmock v. Bixby, 37 Mass. (20 ker V. Read, 59 Tex. 187, Pick.) 377. MISS. — Butler v. 1 See, ante, § 636. Spann, 27 Miss. 234; Farniquet v. 2See, ante, §§ 637-639. Forstall, 34 Miss. 87. N. Y.— Mack V. Latter, 178 N. Y. 525, 67 L. R. A. 3 See 20 R. C. L. 607, § 8. ^26, 71 N. E. 97. N. C— Vann v. 4Winslow V. Minnesota & Pac. Hargett, 22 N. C. (2 Div. & B. R. Co., 4 Minn. 313, 77 Am. Dec. gq.) 31, 32 Am. Dec. 689. VT.-- 519. Lewis v. St. Albons Iron & Steel 5 See, post, § 703. Works, 50 Vt. 477. 6 AIJ^. — Hall V. Henuerson, 134 7 |n bill for specific performance Ala. 4.^.5, 63 L. R. A. 673, 32 So. of contract for sale of shares of I Code PI. and Pr.— 56 ggl §656 CODE PLEADING AND PRACTICE. [PL in, controlling all the stock of the corporation, who made the false representations,^ or with several of the individual members, holders of the stock of the corporation, each of whom joined in making the fraudulent representations complained of.^ Where several persons hold under titles derived from a common source, and their interests are all alike affected, they should all be made parties de- fendant,^^ — e. g., where property is fraudulently con- veyed and parceled out by its owmer to several persons ;^^ but where several persons claim under distinct and un- connected titles, whether they are to be joined as defend- ants depends upon the facts and circumstances of each particular case, and the court is required to exercise a sound discretion on the subject.^^ Misjoinders^ and mul- stook in a corporation, where it is not alleged that the other party to the contract is insolvent, or that he is about to dispose of his stock, the corporation is not a necessary party. — See, post, § 691. s Cawthra v. Stewart, 59 Misc. (N. Y.) 38, 43, 109 N. Y. Supp. 770. !' Lehman-Charley v. Bartlett, 135 App. Div. (N. Y.) 674, 684, 120 N. Y. Supp. 501; affirmed, 202 N. Y. 524, 95 N. E. 1125; Hecken- dorn V. Romadka, 138 Wis. 423, 12 N. W. 257. 1-1 As to holders of titles from a common source, see, supra, § 597. 11 See: ALA. — Planters' & Mer- chants' Bank v. Walker, 7 Ala. 926. N. H. — Chase v. Searles, 45 N. H. 511. N. J.— Randolph v. Daly, 16 N. J. Eq. (1 C. E. Gr.) 613. N. Y. —Fellows V. Fellows, 4 Cow. 682, 15 Am. Dec. 412; Boyd v. Hoyt, 5 Paige 65; Lawrence v. Bank of Republic, 35 N. Y. 320, 31 How. Pr. 502; Reed v. Stryker, 4 Abb. Ct. App. Dec. 26, 12 Abb. Pr. 47, reversing 6 Abb. Pr. 109: Ham- mond V. Hudson River Iron & Mach. Co., 20 Barb. 378. N. C— Fisher v. Southern Loan & Trust Co., 138 N. C. 224, 231, 50 S. E. 659. S. C— Williams v. Neal, 10 Rich. Eq. 338, 73 Am. Dec. 94. TENN.— Bartee v. Tompkins, 36 Tenn. (4 Sneed) 623. FED.— Gaines V. Chew, 43 U. S. (2 How.) 619, 11 L. Ed. 402. 12 See Gaines v. Chew, 43 U. S. (2 How.) 619, 11 L. Ed. 402. See Bowers v. Keesecher, 9 Iowa 422; Warren v. Warren, 56 Me. 360; Butler v. Sparm, 27 Miss. 234; Ed- wards V. Sartor, 1 S. C. 266; Camp- bell v. Mackay, 7 Sim. 564, 58 Eng. Repr. 954, 1 Myl. & C. 603, 40 Eng. Repr. 507, 13 Eng. Ch. Rep. See Story's Eq. PI. (9th ed.), §530. See, also, numerous authorities in point and discussion in 3 Rose's Notes on U. S. Reps., pp. 919-924. 13 As to' misjoinder, see, post, § 683 882 ch. v.] DEFENDANTS — IN SUITS IN EQUITY. §65G tifariousness^* are evils to be studiously avoided; but keeping strictly within the rules in the various matters that arise in suits in equity is not unfrequently a difficult problem. It may be laid down as a general rule that there are three classes of persons to be dealt with in equity suits, who may or may not be parties, or must be made parties, as follows: (1) Persons who may or may- not be made parties defendant by the plaintiff without notice by the court ;^^ (2) persons not so necessary to granting the relief asked that their absence defeats the jurisdiction of the court, but w^hose interests are such that the court, when those interests are brought to its attention, may order them to be brought in as defendants, where they are mthin the jurisdiction of the court ;^^ and (3) persons whose interests in the subject-matter of tlie suit, and in the relief demanded, are such that the court can not proceed to a determination of the controversy without their presence;^' and when such persons can not 14 Misjoinder of causes bringing defendants whose interests are so different in character that the court will not permit them to be litigated in one action, is fre- quently spoken of as "multifarious- ness."— See Story's Eq. PI. (9th ed.), §530. 15 Russell V. Clark, 11 U. S. (7 Cr.) 69, 3 L. Ed. 271; Kendig v. Dean, 97 U. S. 423, 24 L. Ed. 1061. 16 Buttrick Pub. Co. v. Fisher, 203 Mass. 122, 133 Am. St. Rep. 283, 89 N. E. 189; Kidd v. New Hampshire Tract Co., 72 N. H. 273, 66 L. R. A. 574, 56 Atl. 465; Russell V. Clark, 11 U. S. (7 Cr.) 69, 3 L. Ed. 271; Mechanics' Bank V. Seton, 26 U. S. (1 Pet.) 299, 7 L. Ed. 152; Vattier v. Hinde, 32 U. S. (7 Pet.) 252, 8 L. Ed. 675; Story V. Livingston, 38- U. S. (13 Pet.) 359. 10 L. Ed. 200; Ribon v. Chicago, R. I. & P. R. Co., S3 U. S. (16 Wall.) 446, 21 L. Ed. 367; Ken- dig V. Dean, 97 U. S. 423, 24 L. Ed. 1061. iTSee: CONN. — N i c h o 1 s v. Nichols, 79 Conn. 644, 654, 66 Atl. 161, 164. N. Y.— Mahr v. Norwich Union Fire Ins. Co., 127 N. Y. 452, 461, 28 N. E. 391, 393. OKLA.— Lynch v. United States. 13 Okla. 142, 158, 73 Pac. 1095, 1100. FED. —Russell V. Clark, 11 U. S. (7 Cr.) 69. 3 L. Ed. 271; Shields v. Barrow, 58 U. S. (17 How.) 130, 139, 140, 15 L. Ed. 158, 160; Christian v. Atlantic & N. C. R. Co., 133 U. S. 233, 241, 33 L. Ed. 589, 592, 10 Sup. Ct. Rep. 260, 262; California V. Southern Pac. Co., 157 U. S. 229, 249, 39 L. Ed. 683, 691, 15 Sup. Ct. Rep. 591, 599; Tobin v. Walkin- shaw, 1 McA. 29, Fed. Cas. No. 14068; Gray v. Larrimore, 4 Sawy. 638, 650, 2 Abb. (U. S.) 542, 556. Fed. Cas. No. 5721; Hamilton v. 883 § 657 CODE PLEADING AND PRACTICE, [Pt. Ill, be subjected to the jurisdiction of the court, the suit will not be entertained.^^ § 657. Executors and administrators. We have al- ready discussed the joinder of an executor or adminis- trator in a suit upon a joint, or upon a joint and several obligation, with the surviving obligor or obligors,^ and it remains to discuss the question of making executors or administrators parties defendant generally. In Califor- nia the executor or administrator of a decedent is entitled to the possession of the entire estate of the deceased, both real and personal. The Code of Civil Procedure provides that ''actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates."- "Any person, or his personal representatives, may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroj^ed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person."^ And ''in actions for or against executors or administrators it is not necessary to join those as parties to w^hom letters were issued, but who have not qualified."* The same code also contains minute provisions requiring a creditor of a deceased to present his claim against the estate to the executor or Savannah, F. & W. R. Co., 49 Fed. in the suit.— Porter v. Clements, 412, 418; United States Telephone 3 Ark. -382. Co. V. Central Union Telephone is 20 R. C. L. 679, § 18. Co., 171 Fed. 135. i See, ante, § 654. Ends of justice not defeated and 2 Kerr's Cyc. Cal. Code Civ. rights of absent parties will not Proc, § 1582. be affected, must be made to ap- 3 Id., § 1584. pear before the court will proceed 4 Id., § 1587. 884 Ch. v.] EXECUTORS AND ADMINISTRATORS. § 657 administrator of the deceased for allowance before he can maintain an action thereon.^ In construing these provisions of the Code, it has been repeatedly held that the general right to sue an executor or administrator was taken away by statute, except in cases where the creditor's claim has been properly presented and re- jected.^ If an executor has come into possession of the trust fund or its substitute, so that the same can be iden- tified, he can be held to account and charged as trustee, upon the same terms as his testator held the trust, and the relation of trustee and cestui que trust is added to that of executor.'^ In suit for specific performance of testator's contract for sale of lands, the executor of de- ceased should join as plaintiff.- In a suit for specific per- formance against heirs on their ancestor's contract, where damages are demanded in the alternative, the ex- ecutors or administrators should be made parties, or no judgment can be taken for such damages.'-* In Nevada a joint action can not be maintained against the sur\'ivor and the administrator of a deceased maker of a promis- sory note;^** and the same was the rule in California before the adoption of the procedural code.^^ The reason 5 Eustace v. Johns, 38 Cal. 3, s Kerr's Cyc. Cal. Code Civ. 23; Dodson V. Nevitt, 5 Mont. 518, Proc, §1582; Church's Probate 521, 6 Pac. 358. Law and Practice, vol. 1, p. 742, See Church's Probate Law and par. 12. Practice, vol. 1, pp. 665-788. 9 Kerr's Cyc. Cal. Code Civ. Claim for stockholder's liability proc, §1582; Church's Probate of decedent need not be presented. Law and Practice, vol. 1, pp. 970 —Miller & Lux v. Katz, 10 Cal. ^^ g^q. Massie's Heirs v. Donald- App. 579, 102 Pac. 947. ^^^^ 8 Ohio 377. cElfisen v. Halleck, 6 Cal. 393; , ,, , .. , ^ , ,^ TT X , T^ . -in r. 1 era. '" Kentucky it has been held Hentsch v. Porter, 10 Cal. 559; ^ ^ ^ -^ ^ , . . ^ » „ -r ■, n,, ^ , o that executors and administrators Eustace v. Jahns, 38 Cal. 3. ^ *• j c 1 * ,. . , ., , are not proper parties defendant See discussion and cases cited . ' o •« . _. ..„,.. , n to actions to enforce specific per- in Church's Probate Law and Prac- ^ ^ ■, ^. ^ ^ e , . „„„^,_ formance of decedent s contract of tice, vol. 1, pp. (32-(4(. , ^ , j ,-, , ttj*^ q ' ^ ' , 0-, -^ 1 irr sale of lands.— Cowan v. Hite, 9 7 Lathrop V. Bampton, ol Cal. 17. .„ . t^ ,,r u ^ 000 ^^ . ,,...■■ T^ r,, c.i Ky. (2 A. K. Marsh.) 238. S9 Am. Dec. 141; Fox v. Toy, S9 Cal. 339, 23 Am. St. Rep. 474. 24 10 Maples v. Geller, 1 Nev. 233. Pac. 855, 26 Pac. 897. 11 See discussion, ante, § 654. 885 § 658 CODE PLEADING AND PRACTICE. [Ft. Ill, assigned for this rule is that the judgment against the survivor would have to be de bonis propriis, and against the executor adixdnistrator de bonis testatoris,^- which formal reason is done away with by the code.^^ The general rule of laiv is that no action mil lie against an executor or administrator to which his testator or intestate was not liable.^^ The estate, represented by a person upon whom the duty of keeping the premises in repair is cast, is no more liable for his neglect of that personal duty than it would be for a fine which might be imposed upon him by a criminal court for an assault and battery committed by him while in possession of such estate.^^ In actions for the foreclosure of a mortgage, against the estate of a deceased mortgagor, his heirs are not necessary parties. ^*^ An action instituted by a party on one side for individual rights, against herself as ad- ministratrix of her husband's estate, is irregular, and should not be upheld. ^^ § 658. Fictitious parties defendant. The California procedural code provides that when the plaintiff is igno- rant of the name of a defendant, he must state that fact in the complaint,^ and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered,- the pleading or proceeding 12 Bank of Stockton v. Howland, See Church's Probate Law and 42 Cal. 129; Mattison v. Childs, 5 Practice, vol. 1, p. 1082. Colo. 78. 17 Norton v. Walsh, 94 Cal. 564, 13 See, supra, § 654. 29 Pac. 1109. 14 Eustace v. Jahns, 38 Cal. 3. See, ante, § 623. 15 Id.; Craton v. Wenlsger, 2 i Form of averment as to un- Tex. 202; Able v. Chandler, 12 known defendants, Jury's Adjudi- Tex. 88, 92, 62 Am. Dec. 518. cated Forms of Pleading and Prac- 10 Executor represents heirs and tice, vol. 1, p. 232, Form No. 152. devisees and a judgment against 2 Form of notice for leave to him binds them in a foreclosure substitute true name. — Id., p. 234, proceeding. — Bayly v. Muehe, 65 Form No. 153. Cal. 345, 348, 3 Pac. 467, 4 Pac. Form of affidavit to obtain leave 486; Dickey V. Gibson, 121 Cal. 276, to correct fictitious name. — Id., p. 278, 53 Pac. 704. 234, Form No. 154. 886 eh. v.] FICTITIOUS PARTIES DEFENDANT. § 'OoS must be amended accordingly.^ Under this provision of the code the defendant can be sued by a fictitious name- only when the plaintiff is ignorant of his true name. A defendant served under a fictitious name is subject as such to the action until a substitution is made. The rights of other parties to the action will not be affected by service upon the party c;ued under a fictitious name nor by his appearance in a suit.^ Where the complaint fails to contain an averment that the plaintiff was ignorant of the true name of the defendant,^ and the de- fendant is served under such fictitious name, he may appear and move to set aside the service and dismiss the complaint where no offer in response to the motion is made to insert the true name in the complaint.*^ But the service of summons will not be set aside, nor the action dismissed, where the complaint contains the averment that the plaintiff was ignorant of the true name of the defendant, notwithstanding the showing by the defend- ant that the plaintiff might have ascertained his true name by examining the record of deeds of the county in which the land affected by the action was situated.' By answering a defendant sued by a fictitious name does not waive amendment of the complaint describing him by his true name f judgment can not be taken or enforced against a party thus sued until the complaint is amended by inserting the true name,^ and such a judgment will be reversed on appeal;^" but such a judgment will not 3 Kerr's Cyc. Cal. Code Civ. f, Rosencrantz v. Rogers. 40 Cal. Proc, §474. 489, 492. Form of order substituting true " Irving v. Carpentier, TO Cul. 2 i. name for fictitious name in com- 25, 11 Pac. 391. plaint, see Jury's Adjudicated s McKinlay v. Tuttle. 42 Cal. 570, Form's of Pleading and Practice, 578. vol. 1, p. 235, Form No. 155. f Campbell v. Adams. 50 Cal. 20 '. 4Rachman v. Cathry, 113 Cal. 205; Farrls v. Merritt. 63 Ca!. US, 498, 502, 45 Pac. 814. 119. 5 See footnote 1 and text, this lo San Francisco. City and section. County of, v. Burr, 4 Cal. Unrep. 887 §659 CODE PLEADING AND PRACTICE. [Ft. III. be void and the Supreme Court may, in affirming the judgment, direct the complaint to be amended, as of a date prior to the judgment, by substituting the true name of the defendant sued by a fictitious name and against whom judgment was recovered.^ ^ Amending the com- plaint by inserting the real name of the defendant sued by a fictitious name does not change the original cause of action. ^2 § 659. Fraud. In later sections we shall discuss fully who are proper parties and who are necessary parties defendant in actions of torts generally;^ in this place are collected a few instances as to fraud pure and simple. Suffice it to say generally that the rules as to proper parties- and as to necessary parties,^ as already dis- cussed, apply. Thus, co-partners may be joined^ in an action for deceit in a sale, if both knomngly make false representations, though only one was interested in the expected fruits of the fraud f or for fraudulently recom- mending an insolvent person as worthy of credit.*^ In an action to set aside a conveyance as made without con- sideration and in fraud of creditors, the fraudulent grantor is a necessary party defendant ;'^ where the action is to set aside a fraudulent conveyance made by a surety 634, 36 Pac. 771. See Martinez v. c Patten v. Gurney, 17 Mass. 182, Dallas, City of, 102 Tex. 59, 113 9 Am. Dec. 141. S. W. 1167. "* Gaylords v. Kelshaw, 68 U. S. (1 Wall.) 81, 17 L. Ed. 612. See Bromberg v. Heyer, 69 Ala. 25; Lawson v. Ross, 10 Colo. App. 270, i2Farris v. Merritt, 63 Cal. 118, 5^ p^c. 731 ; Purdy v. Gault. 19 119- Mo. App. 204; Richmond v. Don- 1 See, post, §§ 674, 701. nell, 53 N. J. Eq. 34, 30 Atl. 553; 2 See, ante, § 636. First Nat. Bank v. Shuler. 153 3 See, ante, §§ 637-639. ^^ ^- ^^^' ^'^ ''"'• «*• ««P- «*^^' ^' N. E. 263; Chester v. Chester, 7 4 As to joinder of copartners ^^^ ^. j^^^^^ ^. ^^^^.^^ ^^ ,. generally, see, ante, § 652. p^^j ^Qg. j^ays v. Hnmphrys, 37 ■-•Stiles V. White, 11 Met. 356; Fed. 285; Darnold v. Simpson, 114 45 Am. Dec. 214. Fed. 370. 888 iiMahon v. San Rafael Turn pike Road Co., 49 Cal. 269, 272. eh. v.] COXFLICTIXG CLAIMS TO REALTY. § 660 on a bond, who has since deceased, his administrator is a necessary party defendant f and a fraudulent grantor is a proper party defendant in an action to subject to the lien of a judgment the property alleged to have been fraudu- lently conveyed, but he is not a necessary party.^ In an action by a purchaser at an execution sale, to set aside a conveyance alleged to have been made by the judgment debtor in fraud of creditors and purchasers, and to recover possession of the property, the assignee in insol- vency of the judgment debtor is a proper party defend- ant, i*' In an action to obtain relief from a judgment fraudulently procured, an attorney-at-law charged with being a party to the fraud should be joined \nth tlie client.^^ Fraud of agent or servant may be imputed to the prin- cipal or master, and the latter rightfully made a ])arty defendant in an action founded upon such fraud, where such fraudulent act w^as done by the agent or servant in the course of the principal's or master's business, or by such agent or servant within the scope of his authority, and for the benefit of the principal or master,^- although in the particular act the authority was abused.^^ § 660. In actions to determine conflicting claims to REAL property. Iu California, where an action is brought by a person out of possession of real property, to deter- mine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judg- sWalbrecht v. Holbrook, 66 W. i2Barwick v. Ena;lish Joint S^ock Va. 296, 299, 66 S. E. 335, 336. Bank, L. R. 2 Ex. 259. 12 Erg Rul. 9 Blanc V. Paymaster Min. Co., Gas. 298. 95 Cal. 524, 29 Am. St. Rep. 149, See, also, American and Ensilsh 30 pac. 765. authorities in notes 12 Eng. RjI. 10 Pfister V. Doscey, 68 Cal. 572, Gas. 306-309. 10 Pac. 117. i3Bayley v. Manchester, S. & L, 11 Crane v. Hirschfelder, 17 Cal. R. Co., L. R. 8 C. P. 148, 25 Eng. 467. Rul. Gas. 115. 889 § 661 CODE PLEADING AND PRACTICE. [Pt. Ill, ment be for the plaintiff, lie may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed.^ A complaint averring that the plaintiff is the owner in fee of the property described, while merely an allegation of an ultimate fact, is sufficient without alleging the facts upon which the claim to such title is founded.- Where the plaintiff is in possession at the time the action is brought to determine the conflicting claims to the title of the land, the action is one on the equity side of the court, and the fact that the plaintiff is dispossessed under a writ of restitution will not change the nature of the action to one in ejectment by reason of a judgment or decree in favor of the plaintiff awarding restitution.^ In a proceeding under the McEnemey Act to determine conflicting claims to real property, a person not made a party defendant to the proceedings is not bound by the judgment;^ such person is not bound to inject himself into the proceedings.^ Tenant in possession of the land at the time of the commencement of an action to determine conflicting claims thereto, the landlord may be joined as a party de- fendant.*^ § 661. Infringement of patents. In an action at law for the infringement of a patent all the persons who were engaged in any of the acts constituting the infringe- 1 Kerr's Cyc. Cal. Code Civ. Heeser v. Miller, 77 Cal. 192, 19 Proc, § 380. Pac. 375; Souter v. Maguire, 78 i: Bryan v. Tormey, 3 Cal. Unrep. Cal. 543, 21 Pac. 183. 85, 21 Pac. 725. See Payne v. 3 Polock v. Gurnee, 66 Cal. 263, Treadwell, 16 Cal. 242; Garwood v. 269, 5 Pac. 229, 610; Kitts v. Aiis- Hastings, 38 Cal. 217; Ferrer v. tin, 83 Cal. 167, 172, 23 Pac. 290. Home Mut. Ins. Co., 47 Cal. 416, 4 Holmes v. O'Brien, 28 Cal. App. 431; Miller v. Brigham, 50 Cal. 264, 151 Pac. 1151. 615; Rough v. Simmons, 65 Cal. 5 Id. 227, 3 Pac. 804; Thompson v. 6 Kerr's ' Cyc. Cal. Code Civ. Spray, 72 Cal. 528, 534, 14 Pac. 182; Proc, § 379. 890 ell. v.] INFRINGEMENT SUITS — INJUNCTION. § 662 ment, — e. g., the manufacture^ or the marketing or selling of the infringing article,- or a person in control of a corporation who commanded a subordinate to engage in the manufacture and sale of the infringing article,^ — are all liable^ and may be joined as defendants. But it seems that an action can not be maintained at law against the directors, stockholders or workmen of a corporation wliich manufactures an article that infringes a patented improvement.^ In suits in equity all persons engaged in and concerned in the infringement in any manner, are proper defend- ants. Thus, where one person operates or runs an in- fringing machine, which is owned by two other persons, all are properly joined as defendants in an injunction suit,^ privity or connection between the parties render- ing them jointly liable.^ <^ 662. Injunction. In an action to enjoin the issuance of bonds by fund commissioners, it is necessary that some of the parties to whom bonds are to be issued should be parties defendant.^ In a bill of peace to restrain vexa- tious litigation, although some of the parties be mere accommodation grantees, they have a right to be first heard at law in their own defense;- but in an action to 1 Byrer v. Dorr, 3 McL. 582, Fed. 6 Woodworth v. Edwards, 3 Cas. No. 2070. Woodb. & M. 120, Fed. Cas. No. 2 Morse v. Davis, 5 Blatchf. 40, 1S014. Fed. Cas. No. 9855. ^ ^.^Ug ^ Jacques, 1 Ban. & A. 3 National Cash-Register Co. v. Leland, 37 C. C. A. 372, 94 Fed. 502. •i National Car Brake Shoe Co. v. Terre Haute Car & Mfg. Co., 19 ?'ed. 514; Harrington v. Atlantic & Pac. Tel. Co., 143 Fed. 329. •". United Nickel Co. v. Worthing- ton, 13 Fed. 392; Cazier V. Mackie- i Hutchinson v. Burr, 12 Cal. Lovcloy Mfg. Co., 71 C. C. A. 104, 103; Patterson v. Yuba County, 12 138 Fed. 654; affirmed, 84 C. C. A. Cal. 05. 591, 157 Fed. 88. 2 Knowles v. Inches, 12 Cal. 212. 891 60, Fed. Cas. 17398; Jackson v. Nagle, 47 Fed. 703; Standard Paint Co. V. Bird, 65 Fed. 509. See Reynolds v. Standard Paint Co., 15 C. C. A. 51G, 28 U. S. App. 457, 68 Fed. 483. §§663,664 CODE PLEADING AND PRACTICE. [Pt. Ill, quiet title,^ tlie court may rejoin the defendant, and all claiming under him, from asserting title to the property.* Where one of the defendants in a joint judgment sues to have the judgment perpetually enjoined, his codefendants should be made parties to the action.^ § 663. Injury or death — Of minor child or ward. We have already seen that a father, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another.^ Such action may be maintained against the person causing the injury, or death, or if such person be employed by another person who is responsible for his conduct, also against such other person. ^ Similar provisions are found in the procedural codes of other states. Thus a landlord who leaves a cistern unguarded is liable for the death of a child under three years of age falling into such cistern ;2 and an agent in charge of property upon which such a nuisance is permitted is also liable for an injury or death to a child resulting there- from.* / § 664. Of person not a minor. We have already seen that a person not a minor may maintain an action for injuries to his person or personal injury through a negligent or wrongful act,^ and where death results from such personal injury, his heirs or personal representa- tives may maintain an action for damages against the person causing the death, or if such person be employed 3 As to actions to determine con- 2 Kerr's Cyc. Cal. Code Civ. feting claims to real property, Proc, § 376. see, ante, § 660. " Douk Bros. Coal & Coke Co. v. Leavitt, 109 111. 390. 4 Brooks V. Calderwood, 34 Cal 566. ■i See instance of agent's liabil- ity, and liability of persons in 5 Gates V. Love, 44 Cal. 392. charge, given in next section. 1 See, supra, § 625. i See, ante, § 621. 892 eh. v.] INJURY OR DEATH OF ADULT. §66i by another person who is responsible for his conduct, then also against such other person.- In other jurisdic- tions having the reformed system of judicature similar pro\dsions are found. Under such statutes every person responsible for the negligent or wrongful act and con- tributing to the injury is responsible therefor and may all be joined as defendants." Thus, an agent or servant having complete management and control of the business or property, is liable with his principal or master;* an agent in charge who fails to make necessary repairs;^ car inspector guilty of gross or wanton negligence in in- spection;^ engineer of railway train for negligent or 2 Kerr's Cyc. Cal. Code Civ. Proc, § 377. 3 Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 622, 53 Am. St. Rep. 88, 28 L. R. A. 436, 16 So. 620; Dowell v. Chicago, R. I. & P. R. Co., 83 Kan. 566, 112 Pac. 136; Lough V. Davis, 30 Wash. 204, 94 Am. St. Rep. 848, 59 L. R. A. 802, 70 Pac. 491; Howe v. Northern Pac. R. Co., 30 Wash. 574, 60 L. R. A. 953, 70 Pac. 1100; Lytle Logging & Mercantile Co. v. Humptulips Driving Co., 60 Wash. 562, 111 Pac. 774; Thomas v. Great Northern R. Co., 77 C. C. A. 255, 147 Fed. 85. 4 Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 622, 53 Am. St, Rep. 88, 28 L. R. A. 433, 16 So. 620; Stiewel v. Borman, 63 Ark. 37, 37 S. W. 404; Baird v. Shipman, 132 111. 16, 22 Am. St. Rep. 504, 7 L. R. A. 128, 23 N. E. 384; Ranch v. Brunswig, 155 Mo. App. 371, 137 S. W. 67; Young v. Rohrbough, 88 Neb. 106, 129 S. W. 167; Ellis v. Southern R. Co., 72 S. C. 471, 2 L. R. A. (N. S.) 382, 52 S. E. 228. Agent for owner of unoccupied land not liable to a trespass for the unsafe condition of the land, where his authority limited to leasing the land and collecting the rent. — Kuhnert v. Angell, 10 N. D. 61, 88 Am. St. Rep. 675, 84 N. W. 579. Agent not liable merely because he is such agent, but must be so connected witla the tortious act that he would be liable for his neg- ligent or wilful act without regard to the liability of his master or employer. — Eraser v. Baker, 137 111. App. 594. Hirer of elevator-boy for owner of building over which the hirer had control, not liable for the neg- ligence of such elevator-boy. — Smith v. Pawlak, 136 111. App. 279. 5 Gibson v. Leonard, 37 111. App. 348; Chicago Consolidated Bottling Co. V. Mitton, 41 111. App. 156; Lough V. Davis, 30 Wash. 204, 213. 94 Am. St. Rep. 848, 59 L. R. A. 802, 70 Pac. 491. Compare: Kuhnert v. Angell, 10 N. D. 61, 88 Am. St. Rep. 675, 84 N. W. 579. 6 Ward V. Pullman Car Corp., 131 Ky. 149, 25 L. R. A. (N. S.) 893 §665 CODE PLEADING AND PRACTICE, [Pt. Ill, wanton injury to trackmen ;' superintendent of mine i)er- mitting use of a defective shaft ;** trustee having control of building is liable for negligence in the maintenance and operation of an elevator in the building, and for the negligence of the elevator man,** and the like. § 665. Injury to PROPEPtTY caused by negligent or WRONGFUL ACT. In the case of an injury to property caused by the negligent or w^rongful act of another, all persons participating in or contributing to such negli- gent or wrongful act are liable for the damages occa- sioned thereby, and may all be joined as defendants.^ Thus, in an action to recover for damage done to the property of the plaintiff by reason of the breaking away of a dam built by contractors, when the employers exer- cise no supervision, give no directions, furnish no ma- terials, and have not accepted the work, the contractors alone are liable;- after the acceptance of the work, the 351, 114 L. W. 754; Jacobson v. Chicago, R. I. & P. R. Co., 176 Fed. 1007. 7 Dowell V. Chicago, R. I. & P. R. Co., 83 Kan. 566, 112 Pac. 136. s Hagerty v. Montana Ore Pur- chasing Co., 38 Mont. 81, 25 L. R. A. (X. S.) 361, 98 Pac. 643. '■< Orcutt V. Century Bldg. Co., 201 Mo. 450, 8 L. R. A. (N. S.) 937, C9 S. W. 1062. 1 See, post, §§ 674, 701. 2 See: ALA. — Myers v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719. CAL. — Boswell V. Laird, 8 Cal. 469, 68 Am. Dec. 345; Du Pratt v. Lick, 38 Cal. 691; O'Hale v. Sacramento, City of, 48 Cal. 212; Bennett v. Truebody, 66 Cal. 509, 56 Am. Rep. 117, 6 Pac. 329. ILL.— Baird v. Shipman, 132 111. 16, 22 Am. St. Rep. 504, 7 L. R. A. 128, 23 N. E. 384. IND.— Ryan v. Curran, 64 Ind. 345, 31 Am. Rep. 123; Wabash, 89 St. L. & Pac. R. Co. V. Faver, 111 Ind. 195, 60 Am. Rep. 696, 12 N. E. 296. ME.— Eaton v. European & N. R. Co., 59 Me. 520, 8 Am. Rep. 430. MICH.— Gilbert v. Flint & P. M. R. Co., 51 Mich. 488, 47 Am. Rep. 592. MO. — Fink v. Missouri Furnace Co., 82 Mo. 276, 52 Am. Dec. 376. N. J.— Cuff v. Newark & N. Y. R. Co., 35 N. J. L. (6 Vr.) 17, 10 Am. Rep. 205; affirmed, 36 N. J. L. (1 Vr.) 574. N. Y.— King V. New York Cent. & H. River R. Co., 66 N. Y. 181, 23 Am. Rep. 37; Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544; Hexamer v. Webb, 101 N. Y. 377, 54 Am. Rep. 703. OHIO— Hughes v. Cincinnati & S. R. Co., 39 Ohio St. 461. PA.— Harrison v. Collins, 86 Pa. St. 153, 27 Am. Rep. 699; School District v. Fuess, 98 Pa. St. 600, 42 Am. Rep. 627; Smith v. Simmons, 103 Pa. St. 32, 49 Am. Rep. 113; Piollet v. 1 Ch. v.] INTERPLEADER CONFLICTING CLAIMS. § 66& owner is also liable for damage resulting from faulty construction.^ An agent of a contractor ha^'ing control of the business is liable with his principal,^ or an agent having the control and management of the property may be liable to a third person for a personal injury or an injury to his property resulting from a negligent or wrongful act in connection with such management of the property,^ — because one in control of premises is liable for known defects therein, or for those which he might have knowTi of by the exercise of reasonable care.*'' But a director who has no knowledge of a nuisance main- tained by a corporation, and could not know of the exist- ence of such nuisance by the exercise of ordinary dili- gence as such director, is not personally responsible with the corporation for the maintenance of such nuisance.' Common carriers, for loss of goods consigned to them for transportation and delivery, may be sued jointly or sever- ally,^ where the contract of carriage is for a through car- riage and delivery beyond the end of the line of the initial carrier; but such extended liability of the initial carrier must be clearly established by satisfactory evidence.'^ § 666. Interpleader — Conflicting claimants. The California procedural code provides that whenever con- Simmers, 106 Pa. St. 95, 51 Am. 6 Chicago Consol. Bottling Co. v. Rep. 496. VT.— Bailey v. Troy & Mitton, 41 111. App. 156. B. R. Co., 57 Vt. 252, 52 Am. Rep. 7 Cameron v. Kenyon - Connell ^^^- Commercial Co., 22 Mont. 312. 320. 3 Boswell V. Laird, 8 Cal. 469, 68 ^4 ^m. St. Rep. 602, 44 L. R. A. Am. Dec. 345; Fonjoy v. Seales, 29 602, 56 Pac. 358. Cal 249 4 See Mayer v. Thompson-Hutch- '^ ^^^^^^ ^- «°^^«°' ^O N- Y. 93 : ison Bldg. Co., 104 Ala. 622, 53 Am. Mcintosh y. Ensign. 28 N. Y. 169. St. Rep. 88, 28 L. R. A. 436, 16 So. ^ See Roy v. Chesapeake & O. R. 620. Co., 61 W. Va. 616, 31 L. R. A. See authorities cited, ante, § 664, (N. S.) 1, 57 S. E. 39. footnote 4. As to liability of connecting car- 5 Ranch v. Brunswig, 155 Mo. rier for loss beyond its own line, App. 371, 137 S. W. 67. see exhaustive collection of au- See, also, authorities cited, ante, thorities in note 31 L. R. A. (N. S.) § 664, footnote 5. 1-113. 895 §666 CODE PLEADING AND PRACTICE. [Pt. IlJ, flicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to com- pel them to interplead and litigate their several claims among themselves.^ There are similar provisions found in other jurisdictions having the reformed procedure. One of the essential requisites to equitable relief by bill of interpleader is that all the adverse titles of the re- spective chdmants must be connected or dependent, or one derived from the other, or from a common source. There must be privity of some sort between all the par- ties, such as privity of estate, title, or contract, and the claims should be of the same nature and character. In cases of adverse, independent titles or demands, actions to determine the rights of litigants must be directed against the party holding the property, and he must de- fend, as best he can, at law. Thus, where the (' \' rela- tion which the plaintiff sustains to the defendants is that he is the debtor of one of them, he can not invoke the aid of an interpleader ;- or where no privity exists .ctween defendants, their claims being based on independent con- tracts with the plaintiff.^ In those cases in which it is desired that a new party be impleaded, this should be done by motion in the trial court. An objection to the proceedings as not including such party, based upon the 1 Kerr's Cyc. Cal. Code Civ. parties and striking out parties.— Proc, § 386. See Wheatley V. Strobe, See Id., p. 224, Forms Nos. 141, 142. 12 Cal. 92, 73 Am. Dec. 561; Maier 2 North Pacific L. Co. v. Lang, 28 V. Freeman, 112 Cal. 8, 53 Am. St. Ore. 246, 258, 52 Am. St. Rep. 780, Rep. 151, 44 Pac. 357. 42 Pac. 799, 803. As to privity of title between 3 See Sachsel v. Farrar, 35 111. claimants in interpleader, see note App. 277; Hoyt v. Gauge, 125 Iowa 1 Ann. Gas. 513. 603, 101 N. W. 464; Maxwell v. Form of complaint in inter- Frazier, 52 Ore. 183, 18 L. R. A. pleader. See Jury's Adjudicated (N. S.) 102, 96 Pac. 548. Forms of Pleading and Practice, As to privity of title between vol. 1, p. 223, Form No. 140. claimants- in interpleader, see 1 — Amendment by adding new Ann. Cas. 513. 89G Ch. v.] INTERVENTION — CALIFORNIA RULE. § 667 contention that lie is a proper party to prosecute the suit, comes too late when made for the first time on appeal.* § 667. Intervention — In general. The California pro- cedural code provides that at any time before trial, any I)erson, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.^ The right of intervention is purely statutory,- and the method prescribed in the statute must be strictly fol- lowed.^ A substitution of parties* is not intervention,'"' and where the trial court, on the erroneous supposition that they are necessary parties,^ orders that certain per- sons be permitted to appear and answer,^ such persons are not interveners, and do not become parties to the action.^ The right of a person coming within the descrip- tion of the statute to intervene is an absolute right, and the fact that he may or may not protect his interests in some other way is not material. If he has an interest in tlie matter in litigation, or in the success of either of the parties, he has a right to intervene.'-^ Thus, it has been 4 Chapman & Dewey Land Co. v. 3 Chase v. Evoy, 58 Cal. 348, 355. Wilson, 91 Ark. 30, 120 S. W. 391. ■* As to substitution of parties, 1 Kerr's Cyc. Cal. Code Civ. ^^e, post, §§ 694-699. 5 Temple v. Alexander, 53 Cal. 3. Proc, 2d ed., §387; Consolidated Supp. 1906-1913, p. 1418. 6 As to who are necessary par- ties, see, ante, §§ 637-639. 2 Chase v. Evoy, 58 Cal. 348, 355. ^ ^g ^^ bringing in new parties. In Texas, intervention is not see, ante, §§ 647-650. based upon a declaration of the s Chase v. Evoy, 58 Cal. 348, 355. statute, but is derived through the See Elliott v. Superior Court, 168 ecclesiastical courts of England Cal. 727, 145 Pac. 101. and the modification of the civil 9 Coffey v. Greenfield, 55 Cal. law as found in the State of Louis- 382; Kimball v. Richardson-Kim- iana, and rests upon the principle ball Co., Ill Cal. 386, 43 Pac. 1111; that a party should be permitted Dennis v. Kohn, 131 Cal. 91, 63 to do that voluntarily which, if Pac. 141; Potlatch Lumber Co. v. known, a court of equity would Runkel, 16 Idaho 192, 23 L. R. A. require to be done.— Whitman v. (N. S.) 536, 101 Pac. 396; Taylor Willis, 51 Tex. 425; Pool v. San- v. Bank of Volga, 9 S. D. 572, 70 ford, 52 Tex. 621, 633. N. W. 834. I Code PI. and Pr.— 57 gQY § 668 CODE PLEADING AND PRACTICE. [Pt. III. said that where a telegraph company seeks to obtain leave to construct a telegraph line along the right of way of a railroad company, and such railroad company is in the hands of a receiver, the telegraph company may inter- vene in the receivership and litigate its right.^'^ But intervention, as a general rule, will not be allowed in those instances in which it would retard the principal suit, or where it would require a reopening of the case, delay the trial of the cause, or change the position of the original parties. ^^ Trustee under an express trust may intervene in his own name without joining the person for whose benefit the intervention is prosecuted. ^^ § 668. Actions in which authorized. In an action for trespass upon land, a person who claims a grant of a right of way through the land, and avers that the acts of trespass complained of were performed by the defendant under an employment by him to construct the way, has a right to intervene in the action.^ An interest entitling a person to intervene in an action at law or a suit in equity must be in the particular matter in litiga- tion, and must also be of such a direct and immediate character that he will either gain or lose by the direct legal effect and operation of any judgment that may be rendered in the action.- Thus, in an action to enforce a trust in property that has been sold under foreclosure 10 Union Trust Co. v. Atchison, In Texas, intervention is permit- T. & S. F. R. Co., 8 N. M. 327, 43 ted in suits for real or personal Pac. 701. property. — Field v. Gantier, 8 Te.x. u Hibernia Sav. & L. Soc. v. 74; Eccles v. Hill, 13 Tex. 65; Bur- Churchill, 128 Cal. 633, 79 Am. St. ditt v. Glasscock, 25 Tex. Supp. Rep. 73, 61 Pac. 278. 45; Smith v. Allen, 28 Tex. 497; 12 Burke v. Sharp, 88 Ark. 433, Smalley v. Taylor. 33 Tex. 668; 115 S. ^Y. 145. Mussina v. Goldthwaite, 34 Tex. As to trustees generally, see, 125, 7 Am. Rep. 281; Whitman v. post, §703. Willis, 51 Tex. 421; Pool v. San- 1 Robinson v. Crescent City Mill ford, 52 Tex. 621, 634. & Transp. Co., 93 Cal. 316, 28 Pac. i' Horn v. Volcano Water Co., 13 950. Cal. 62, 73 Am. Dec. 569, 898 Ch, v.] GROUNDS AND TIME OF INTERVENTION. § 669 proceedings against the defendant, a purcliaser of the land or any portion thereof at the foreclosure sale may intervene in the action.^ Where the owner of a olaim assigns it absolutely, retaining an interest in the proceeds thereof, he may intervene in an action by his assignee to collect the same.'' But a person may not intervene for the purpose of setting up an adverse claim of title to a part of the property as against the mortgagor and mortgagee in a foreclosure proceeding.^ § 669. Grounds for and time of intervention. The grounds of intervention is a personal interest in the subject-matter of the action, either on the side of the plaintiff or on the side of the defendant,^ and if there be no such interest there is no ground for intervening in the action.2 Thus, a person claiming an adverse appro- priation of a right to the flow of water as against a lower riparian proprietor, has no interest in an action against such lower proprietor by another upper riparian pro- prietor to condemn the right to the flow^ of the water of the lower proprietor, his own right to the flow of water not being in any way interfered with by any judgment that may be rendered in the proceeding, and for that reason he can not intervene in the action." Timely application for an order permitting a party interested with the plaintiff in an action, or with the de- fendant, or having interests antagonistic to both, must be made. If a party having such an interest in tlie action fails to intervene therein he will be bound by any judg- ment that may be rendered on disposing of the cause ;^ 3 Coffey V. Greenfield, 55 Cal. v. Superior Court, 1G8 Cal. 727, 145 382. Pac. 101. 4 Gradwohl v. Harris, 29 Cal. 2 Moran v. Bonynge, 157 Cal. 150. 295, 298, 107 Pac. 312. 5 Peachy v. Witter, 131 Cal. 316, 3 San Joaquin & Kings River C. 63 Pac. 468. & Irr. Co. v. Stevenson, 164 Cal. 1 See Kerr's Cyc. Cal. Code Civ. 221, 128 Pac. 924. Proc, 2d ed., p. 387; Consolidated 4 Gradwohl v. Harris, 29 Cal. Supp. 1906-1913, p. 1418. See Elliott 150. 899 § 670 CODE PLEADING AND PRACTICE. [Pt. Ill, he can not sit idly by until the controversy before the court has been determined and disposed of, and then compel a retrial because the judgment has gone against his interests.^ The intervention must take place before the trial of the cause f there can be no intervention after the cause has been submitted on bill and answer thereto.'^ § 670. Application foe leave to intervene : Pro- ceedings ON. An application for intervention must be made by a complaint^ setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared,- who may answer or demur thereto as in the case of an original complaint in an action.^ The complaint and other pleadings on an appli- cation for leave to intervene are governed by the general rules of pleading.^ The complaint in intervention must state in a clear and concise manner the facts constituting the grounds of intervention, and must show on its face that the party seeking to intervene is entitled to do so f and if it does not make such showing on its face a de- murrer thereto will be sustained.^ Thus, a person seek- ing to intervene in an ejectment proceeding, must allege in his complaint that he had title before the commence- 5 Mack V. Emmelen, 31 Cal. App. cation for intervention, see Jury's 506, 160 Pac. 1096. Adjudicated Forms of Pleading c See Hibernia Sav. & L. Soc. v. and Practice, vol. 1, p. 213, Form Churchill, 128 Cal. 633, 79 Am. St. No. 121. Rep. 73, 61 Pac. 278; Meadows v. 2 Kerr's Cyc. Cal. Code Civ. Goff, 90 Ky. 540, 14 S. W. 535; Proc, 2d ed., §382; Consolidated Wiseman v. Eastman, 21 Wash. Supp. 1906-1913, p. 1418. 163, 57 Pac. 398; Hight v. Botley, 3 Id. 32 Wash. 165, 98 Am. St, Rep. 851, 4 Hadsall v. Case, 15 Cal. App. 72 Pac. 1034; Seattle & N. R. Co. 542, 115 Pac. 330. V. Bowman, 53 Wash. 416, 102 Pac. See, also, post, § 672, footnote 2. 27. 5 Ray v. Butler, 69 Cal. 572, 584, 7 Seligman v. Santa Rosa, City 11 Pac. 463. of 81 Fed. 524. 6 Chidovich v. Krauss, 2 Cal. 1 Form of complaint in an appli- Unrep. 700, 11 Pac. 781. 900 ell. v.] RIGHTS AND LIABILITIES OF INTERVENERS. § 671 ment of the suit, or the complaint will be insufficient ;' it is not sufficient merely to allege that he **is tlie owner and entitled to the possession," and so forth.^ Order granting or refusing leave to intervene may be made by the trial court, according to the merits of the case made on. the application," and this is properly done by an ex parte order. ^° An appeal may be taken from an order refusing to allow an intervention.^^ <^ 671. Rights and liability of interveners. An intervener, after an order of the trial court granting the right to intervene, has all the rights of an original party to an action, — becomes an actor in the proceeding and must set up and depend upon his own riglits.^ With the permission of the court he may amend his complaint iu intervention to make it correspond to the proof on tlie trial of the cause ;^ when no relief is prayed against an intervener, he may dismiss his complaint in intervention, even though one of the original plaintiffs in the suit has died and his successor in interest has not been brought in f and the fact that the defendant suffers a default can not preclude him from the relief to which he is en- titled.^ When the cause is an action at law the intervener is bound by the record, but is not bound by a waiver of a jury trial^ by the original parties to the action;*"' where 7 Donner v. Palmer, 1 Cal. Plaintiif denied allegations in Unrep. 392. complaint in intervention and then 8 j^ dismissed his action; defendant „ „ , -, j„ ri 1 eno suffered default; intervenor was Spanagel v. Reay, 47 Cal. 608. ^ , ,_ . found to have the interest he 10 Kimball V. Richardson - Kim- claimed; held that he was entitled ball Co.. Ill Cal. 386, 43 Pac. 1111. ^^ ^^^ ^^j.^j ^^^^^^^ for.-Green- 11 Britt V. East Side Hardware ^erg v. California Bituminous Co., 25 Cal. App. 231, 143 Pac. 244. Rock Co., 3 Cal. Unrep. 883, 33 1 Moran v. Bonynge, 157 Cal. Pac. 192. 295, 298, 107 Pac. 312. 5 Whether entitled to jury trial 2 Ward v. Waterman, 85 Cal. raised but not decided in McNeil 488, 24 Pac. 930. v. Morgan, 157 Cal. 373, 377, 108 :j Sheldon v. Gunn. 56 Cal. 582. Pac. 69. I Townsend v. Driver, 5 Cal. 6 McNeil v. Morgan, 157 Cal. 373, App. 581, 584, 90 Pac. 1061. 108 Pac. 69. 901 § 672 CODE PLEADING AND PRACTICE. [Ft. Ill, the original proceeding is a suit in equity in the nature of a bill of peace to quiet title of an alleged owner of the property, who has been long in possession, with no issue or question of recent ouster of the defendant or of the intervener, neither the defendant nor the intervener, by setting up an adverse claim of ownership by way of a counter-claim in ejectment, can convert the proceeding into a legal action so as to entitle them to a trial by jury." An intervener may appeal from any judgment in the action or proceeding where he is in fact and in law an intervener.^ Thus, merely filing a complaint in an action setting up notes of a corporation a party to the action, and praying for a sale of the corporate property described in a trust deed given to secure such notes, does not make such person a party to the action,^ notwith- standing the fact that he styles his complaint as an appli- cation for intervention;^*' and not being a party to the action, he is not entitled to appeal from any order made on the trial of the cause or from the judgment entered therein. ^^ § 672. Proceedings after intervention. The or- dinary rules of pleading applying in a case of interven- tion,^ and all averment in answer to the complaint in intervention must be taken as denied.- The complaint in intervention, however styled by the pleader, must be held to be sufficient where it sets forth facts which, if substantiated by the proof, would defeat the plain- tiff's right to a recovery, and authorize a recovery by the intervener.^ While an order disallomng an inter- vention amounts, in legal effects, to a final judgment as to the proposed intervener, yet, on an appeal taken from 7 Id. 1 See, ante, § 670, footnote 4. 8 See, ante, § 667, footnotes 4-8. 2 Parson v. Creed, 78 Cal. 144, See, ante, § 667, footnote 8. 146, 20 Pac. 302. 10 Elliott V. Superior Court, 168 3 Joshua Hendy Machine Works Cal. 727, 145 Pac. 101. v. Dillon, 135 Cal. 9, 66 Pac. 960. 11 Id. 902 Ch. v.] JOINT TORT-FEASORS. §§ 673, 674 such order, the record on such appeal must be authenti- cated by a bill of exceptions containing all the papers and documents used in the application upon which the court acted in making the order complained of.^ § 673. Joint tenants. We have already seen that any one or more of joint tenants may sue for the enforce- ment or protection of the rights of such party or parties ;^ likewise any one or more may defend for the protection of his or their interests. - <^ 674. Joint tort-feasors.^ The general rule of law is that an injured person has his right of action for dam- ages against each and all of the joint tort-feasors con- tributing to such injury, and may, at his election, sue them individually or join them all as defendants in one action,- and when he elects to sue all in one action may properly join individuals and a corporation as defend- ants,^ w-hether the individuals are or are not the agents or servants or employees of the corporation,-* — e. g., em- ployees of a gas company, injured by frightened horses falling into the trench where they were working, may join the owner of the team and a railroad corporation, 4 Britt V. East Side Hardware 3 Fallon v. United Railroads, 28 Co., 25 Cal. App. 231, 143 Pac. 244. Cal. App. 60, 151 Pac. 290; Whalen 1 See, ante, § 599. v. Pennsylvania R. Co., 73 N. J. L. 2 See Kerr's Cyc. Cal. Code Civ. 192, 63 Atl. 993. See McMannus v. Free, § 384. Lee, 43 Mo. 206, 97 Am. Dec. 386; 1 As to fraud generally, see, Cooper v. Johnson, 81 Mo. 489; ante, § 659. Halliday v. .Jackson, 21 Mo. App. As to torts generally, see, post, 667. § 701. 4 Central R. Co. v. Brown. 113 •-'Butler V. Ashworth, 110 Cal. Ga. 414, 84 Am. St. Rep, 250. 38 614, 43 Pac. 4. 386; Grundel v. S. E. 989; Brakaw v. New Jersey Union Iron Works, 127 Cal. 438, 78 R. & Transp. Co., 32 N. J. L. (3 Am. St. Rep. 75, 47 L. R. A. 467, Vr.) 328, 90 Am. Dec. 659. See .-39 Pac. 826; Cole V. Roebling Con- Moore v. Fitchburg R. Co., 74 struction Co., 156 Cal. 443, 105 Pac. Mass. (8 Gray) 465, 64 Am. Dec. 255 S3; Hewett v. Swift, 86 Mass. (4 See numerous cases cited 20 Allen) 420. R. C. L., p. 678, footnote 7. Orr v. Bank of United SUtes, 1 903 § 674 CODE PLEADING AND PRACTICE. [Pt. Ill, alleging that the defendant corporation negligently oper- ated a welding machine and frightened the horses.^ And when the receivers of a railroad corporation are jointly and severally liable for a personal injury caused by the negligence of themselves and another railroad company, in an action to recover damages for the injury they may be joined as defendants with such other railroad corpo- ration.^ This doctrine of the joinder or non-joinder of joint tort-feasors as defendants, is based on the prin- ciple that persons who join in committing a tort are sev- erally liable therefor and can not set up as a defense, to evade liability for the wrong done and injury inflicted, that another person, or other persons, is liable also; neither can one joint tort-feasor require the person in- jured by his wrong, in seeking redress in damages, to join as defendants all the persons committing the wrong and inflicting the injury.'^ Exception to the ride above laid down is found in the case where the injury complained of arises out of the ownership of real property held jointly^ or in common** by two or more persons, and they have neglected a duty imposed upon them as the holders of the title in such real estate; in which case they should all be joined as defendants in an action by a person injured to recover damages.^*' And this rule applies also in the bringing of Ohio 36, 13 Am. Dec. 588, to the 5 Fallon v. United Railroads, 28 contrary, is founded upon an obso- Cal. App. 60, 151 Pac. 290. lete doctrine regarding corpora- 6 Tandrup v. Sampsell, 234 111. tions, and while followed in Foote 526, 17 L. R. A. (N. S.) 852, 85 V. Cincinnati, City of, 9 Ohio 31, N. E. 331. and specifically overruled any- 7 Tandrup v. Sampsell, 234 111. where, is not in harmony with 526, 17 L. R. A. (N. S.) 852, 85 later cases in the same state, — N. E. 331. e. g., Atlantic & Great Western R. s As to joint tenants generally, Co. V. Dunn, 19 Ohio St. 162, 2 see, ante, § 673. Am. Rep, 382, and Passenger R. o As to common or general inter- Co. V. Young, 21 Ohio St. 518, 8 est in general, see, ante, § 651. Am. Rep. 78, and not now the law lo Tandrup v. Sampsell, 234 111. anywhere in this country. See note 526, 17 L. R. A. (N. S.) 852, 85 N. E. 13 Am. Dec. 596. 331; Fisher v. Cook, 23 111. App. 904 ch. v.] LEGACY CHARGED ON LAND. §675 an action by such owners for the injury to premises thus helcl.ii Acting independently and not in concert, the torts of the defendants become separate and distinct, and they can not be united as defendants in one action, ^^ except in a suit in equity to enjoin a further injury to the plain- tiff, but in such case a joint recovery for damages already done can not be had.^^ Yet it has been said that where a personal injury is caused by separate but concurrent negligence of two parties at one and the same time, they^ may be sued either separately or jointly.^* \l § 675. Legacy charged on land. In an action to com- pel the payment of a legacy charged on land, purchasers of such land in unequal proportions, charged with the 621; Low V. Mumford, 14 Johns. (N. Y.) 426, 7 Am. Dec. 469; South- ard V. Hill, 44 Me. 92, 69 Am. Dec. 85. 11 De Puy V. Strong, 37 N. Y. 372, 42 N. Y. (3 Keyes) 603, 4 Abb. Pr. N. S. 340, 4 Transc. App. 239; Wat- son V. Milwaukee & M. R. Co., 57 Wis. 332, 15 N. W. 468. See Brad- ley V. Boynton, 22 Me. 287, 39 Am. Dec. 582. 12 CAL.^ — Keyes v. Little York Gold Washing & Water Co., 53 Cal. 724; Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; Lang v. Lilly & Thurston Co., 20 Cal. 223, 264, 128 Pac. 1028, 1031. ILL.— Peoria, City of, v. Simpson, 110 111. 294, 51 Am. Rep. 683. IOWA — B o w m a n v. Hum- phrey, 132 Iowa 240, 11 Ann. Cas. 131, 6 L. R. A. (N. S.) 1113, 109 N. W. 714; William Tackaberry Co. V. Sioux City Service Co., 154 Iowa 538, 40 L. R. A. (N. S.) 113, 132 N. W. 945. ME.— Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503. N. Y.— Van Steen- burgh V. Tobias, 17 Wend. 562, 31 Am. Dec. 310; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566. PA. — Button V. Lonsdowne, 198 Pa. St. 563, 82 Am. St. Rep. 814, 53 L. R. A. 469, 48 Atl. 494; Wiest v. Philadel- phia, City of, 200 Pa. St. 148, 58 L. R. A. 666, 49 Atl. 891; Morton V. Union Traction Co., 20 Pa. Super. Ct. Rep. 333. R. I.— Cole V. Lippitt, 25 R. I. 105, 54 Atl. 936. FED. — Jayne v. Loder, 78 C. C. A. 653, 9 Ann. Cas. 294, 7 L. R. A. (N. S.) 991, 149 Fed. 31. 13 Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; Warren v. Parkhurst, 186 N. Y. 45, 6 L. R. A. (N. S.) 1149, 78 N. E. 579, affirming 105 App. Div. 239, 93 N. Y. Supp. 1009, and 45 Misc. 466, 92 N. Y. Supp. 725. See, also, authorities cited in notes 22 Am. St. Rep 257; 6 L. R. A. (N. S.) 1149. 14 Lang V. Lilly & Thurston Co., 20 Cal. App. 223, 264, 128 Pac. 1028, 1031. 905 § 676 CODE PLEADING AND PRACTICE. [Ft. Ill, payment of such legacy, must be joined ;^ but in an action by a legatee to compel an executor to sell real estate to pay legacies, it is not necessary to make a special devisee, residing out of the state, a party to the action.- § 676. Married women — In general,. Under the pro- cedural code of California, a married woman being sued she must be joined with her husband,^ except in those instances specified in a preceding section,^ and the hus- band must not only be joined in all those instances where required to be joined by the code, but he must be served with process as well.^ Yet it is held that a judgment against a married woman is not void for a failure to join her husband, in a case in which the husband is required by the code provision to be joined,^ whether the service of the process is personal or by publication,^ and whether the judgment is on the merits after a trial or on default."^ This is on the ground that, under the provisions of the procedural code,'^ where the husband should have been joined but is not by failure of the wife to object, the defect is deemed waived, and the judgment will bind her separate property.^ Wife may defend for her own right in California, where the husband and wife are sued together, and the husband neglects to defend.^ 1 Swasey v. Little, 24 Mass. (7 — Porter v, Johnson, 172 Cal. 456, Pick.) 296. 156 Pac. 1022. 2 West V. Smith, 49 U. S. (8 See, ante, §594. How.) 410, 12 L. Ed. 1134. 3 Fassio v. Woolfrey, — Cal. 1 See Kerr's Cyc. Cal. Code Civ. App. — , 174 Pac. 700. Proc, 2d ed., §370; Consolidated 4 Emery v. Kipp, 154 Cal. 83, 89, Supp. 1906-1913, p. 1408. 129 Am. St. Rep. 145, 19 L. R. A. 2 See, ante, § 594. (N. S.) 983, 97 Pac. 17. Action against married woman 5 Id. to recover possession of real prop- 6 Id. erty, begun while she was living 7 Kerr's Cyc. Cal. Code C i v. separate and apart from her hus- Proc, § 434. band because of his desertion of 8 Bogart v. Woodruff, 96 Cal. her, under the express provisiohs 609, 611, 31 Pac. 618. of the Code Civ. Proc, § 370, the o Kerr's Cyc. Cal. Code C i v. husband is not a necessary party. Proc, § 371, 906 ell. Y.] MARRIED WOAIEN — CONTRACTU. § 677 § 677. In actions ex contractu. The husband of a married woman is properly joined with her as a party defendant in an action upon a partnersliip obligation contracted by the wife and third persons as partners previous to the marriage and while she was feme sole.^ The wife is an improper party to a suit brought to re- cover money loaned to her to complete the amount of purchase money for a lot of ground, the deed of which was executed to her, but which became common property, and which purchase was afterwards ratified by the hus- band. There could be no personal judgment against the wife.- In California, the wife may appear in and defend an action separately from her husband.^ Where the de- fense of the wife is a special one, she can defend for her own right as well when sued jointly as if the trial was separate.^ To enable her to defend in her own right, slie must possess, as defendant, the rights of a feme sole."' In an action pertaining to her property as so,le trader under the statute,^ the husband need not be joined.' The husband is properly joined with the wife in an action upon an obligation contracted by the wife previous to marriage.** In a suit to foreclose a mortgage, and set aside a fraudulent conveyance of property by the husband to the wife, the wife was properly joined with the hus- 1 Kelly V. Hicks, 22 Cal. 457, 83 7 McKune v. McGarvey, 6 Cal. Am, Dec. 78. 497; Guttman v. Scammell, 7 Cal. 2 Althof V. Conhelm, 38 Cal. 230, 455; Camden v. Mullen, 29 Cal. 99 Am. Dec. 363. 564; Stevenson v. Ackernian, 83 3 Alderson v. Bell, 9 Cal. 315; N. J. L. 458, 46 L. R, A. (N. S.) 238, Leonard v. Townsend, 26 Cal. 445. 85 Atl. 166; Rouillier v. Wericki, 4 Deuprez V. Deuprez, 5 Cal. 387. 3 E. D. Smith (N. Y.) 310; Avo- 5 Alderson v. Bell, 9 Cal. 315; gadro v. Bull, 4 E. D. Smith (N. Y.) Leonard v. Townsend, 26 Cal. 445. 385; Dunderdale v. Grymes, 16 Under South Dakota code, when How. Pr. (N. Y.) 195; Freeman v. a married woman is a party to an Orser, 12 N. Y. Super. Ct. Rep. action, the same rules apply as if (5 Duer) 477. she were single. — S. D. Code Civ. See, also, authorities cited in Proc, § 77. note 46 L. R. A. (N. S.) 240. 6 See Kerr's Cyc. Cal. Code Civ. s Keller v. Hicks, 22 Cal. 457, 83 Proc, § 1819. Am. Dec. 78. 907 §678 CODE PLEADING AND PRACTICE, [Pt. Ill, band as a defendant.® And in a foreclosure of a hus- band's mortgage for the purchase money of the wife's separate estate, both must be joined.^^ So, also, where the wife executes a mortgage with her husband ;^^ and, in partition suits, the wdfe must be joined with her husband as defendant.^- In forcible entry and detainer, also, the husband is properly joined in the action. ^^ So, also, where the homestead is involved, the wife must be joined as defendant in certain cases. ^* §678. In actions ex delicto. According to the common-law^ rule, and by the prevalent doctrine in this country,^ the husband is liable for the torts of the wife,^ — e. g,, her slander or libel of another,^ although he was not present,^ and in no way participated in the tortious act,^ — and the husband is not relieved from such liability 9 Kohner v. Asenauer, 17 Cal. 579. 10 Mills V. Van Voorhies, 20 N. Y. 412, 10 Abb. Pr. 152; Rusher v. Morris, 9 How. Pr. (N. Y.) 266; affirmed, 9 How. Pr. 282. 11 Anthony v. Nye, 30 Cal. 401; Fitzgerald v. Fernandez, 71 Cal. 504, 12 Pac. 652; Conde v. Nelson, 2 N. Y. Code Rep. 58, 4 How. Pr. 75; Conde v. Shepard, 4 How. Pr. (N. Y.) 75. 12 De Uprey v. De Uprey, 27 Cal. 329, 87 Am. Dec. 81; Tanner v. Niles, 1 Barb. (N. Y.) 563; Ripple V. Gilborn, 8 How. Pr. (N. Y.) 456, 460. 13 Howard v. Valentine, 20 Cal. 282. 14 Sargent v. Wilson, 5 Cal. 504; Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304; Marks v. Marsh, 9 Cal. 96; Moss v. Warner, 10 Cal. 297; Horn v. Volcano Water Co., 13 Cal. 70, 73 Am. Dec. 569; An- thony V. Nye, 30 Cal. 401. 1 As to common-law doctrine, see note 30 L. R. A. 521. 2 As to effect of state legislation on common-law doctrine, see 30 L. R. A. 522. 3 See authorities cited in foot- note 7, this section. As to husband's liability for wife's torts, see notes 6 Am. Dec. 106, 83 Am. Dec. 776; 92 Am. St. Rep. 164; 6 L. R. A. 718. 4 Jackson v. Williams, 92 Ark. 490, 25 L. R. A. (N. S.) 842, 123 S. W. 751; Morgan v. Kennedy, 62 Minn. 348, 54 Am. St. Rep. 647, 30 L. R. A. 521, 64 N. W. 912. Wife can not be made defendant for slanderous words spoken by her husband.— Blake v. Smith, 19 R. I. 478, 34 Atl. 995. •J As to question of presence of husband and his coercion, see note 30 L. R. A. 526. Jackson v. Williams, 92 Ark. 490, 25 L. ft. A. (N. S.) 842, 123 S. W. 751. 908 ch. v.] JOINDER OF HUSBAND WHEN". §678 by the married women 's laws,^ although there is author- ity to the contrary on this last point.^ While a husband is not relieved of his common-law liability for the torts of his wife by the married women's laws, a married woman is also liable for civil torts, including such frauds^ as do not arise out of, or are not directly connected with, or are a part of, a contract which she has undertaken to make ;^^ but it seems that she is not liable for a tort based on a contract express or implied, at least not in some states. ^^ Joinder of husband with wife as a defendant in an action founded upon a tort, demanded by the common law, still prevails, unless abrogated by statute ;^2 ^^id in an action against the wife charging a tort committed out of the presence of the husband, the latter must be joined as a party defendant.^^ Thus, in an action against the wife for assault and battery the husband must be joined 7 Henley v. Wilson, 137 Cal. 273, 92 Am. St. Rep. 160, 58 L. R. A. 941, 70 Pac. 21; Kellar v. James, 63 W. Va. 143, 14 L. R. A. (N. S.) 1009, 59 S. E. 939. As to effect of married women's acts upon husband liability for wife's torts, see note 14 L. R. A. (N. S.) 1006; 25 L. R, A. (N. S.) 840. s Schuler v. Henry, 42 Colo. 371, 377, 14 L. R. A. (N. S.) 1011, 94 Pac. 360; Lane v. Bryant, 100 Ky. 138, 36 L. R. A. 709, 37 S. W. 584. In Colorado married women are emancipated to a vastly greater ex- tent than in any other state, in which state she is given absolute dominion over her own person and estate, entitling her to sue and be sued as if she were sole. — Schuler v. Henry, 42 Cal. 371, 14 L. R. A. (N. S.) 1011, 94 Pac. 360. As to fraud generally, see, ante, § 659. 10 Prentiss v. Paisley, 25 Fla. 927, 7 L. R. A. 640, 7 So. 55. As to liability of married women for torts, see 131 Am. St. Rep. 130. 11 Id. Husband and wife conducting a swimming-pool and bath-house on her separate property, and a pa- tron of the business having been injured while lawfully using such premises by reason of its not be- ing in perfect condition, his feet slipping, and falling upon his left leg upon the projecting points of planks alleged to have been negli- gently left unseen; the court held that the wife was not liable in an action for tort. — Graham v. Tucker, 56 Fla. 307, 131 Am. St. Rep, 124, 47 So. 563. i2Horsburgh v. Murasky, 169 Cal. 500, 147 Pac. 147. m IND.— Ball v. Bennett, 21 Ind. 427. 83 Am. Dec. 356. I O W A— Turner v. Hitchcock, 20 Iowa 310; 009 § 679 CODE PLEADING AND PRACTICE. [Pt. Ill, as a party defendant.^^ And under this rule, in an action against the wife for a personal injury sustained by reason of a defective sidewalk in front of her separate property, notAvithstanding the statutory provision enabling her to sue alone in matters affecting her separate property/-^ the husband must be joined with the wife as a party defendant.^^ Spouses' torts against each other are not within the contemplation of the code section ; the section applies only to actions by one against the other for the protection and enforcement of property and rights, and the enforcement of contracts relating thereto. ^'^ § 679. Minors ok infants, insane and incompetent PERSONS.^ In California, when a minor or infant, or an insane or an incompetent person is a party, he must ap- pear either by his general guardian, or by a guardian ad litem- appointed by the court in which the action is pending, in each case. A guardian may be appointed in any case, when it is deemed by the court in which the action is prosecuted, or by a judge thereof, expedient to represent the minor or infant, insane or incompetent person in the action or proceeding, notwithstanding he may have a general guardian, and may have appeared by him. And the general guardian or guardian ad litem Musselman v. Galligher, 32 Iowa 14 Hanley v. Wilson, 137 Cal. 273, 383; McElfresh v. Kirkendall, 36 276, 92 Am. St. Rep. 160, 58 L. R. A. Iowa 224; Luse v. Oaks, 36 Iowa 941, 70 Pac. 21. 562. KY.— Curd v. Dodds, 69 Ky. 15 See, ante, § 594. (6 Bush) 681. MINN. — Brazil v. 16 Horsburgh v. Murasky, 169 Moran, 8 Minn. 236, 83 Am. Dec. Cal. 500, 147 Pac. 147. 772. N. Y.— Rowing v. Manly, 49 i7 Peters v. Peters, 156 Cal. 32, N. Y. 192, 10 Am. Rep. 346, 13 36, 23 L. R. A. (N. S.) 699, 103 Abb. Pr. N. S. 276, reversing 57 Pac. 219. Barb. 479; Tait v. Culbertson, 30 i As to insane and incompetent Barb. 9; Anderson v. Hill, 53 Barb. persons generally, see Kerr's Cyc. 238; Rowing v. Manly, 57 Barb. Cal. Civ. Code, §§38-41. 479; Peak v. Lemon, 1 Lans. 295; 2 As to appointment of guardian affirmed, 59 N. Y. 666. OHIO— ad litem generally, see Rerr's Cyc. Coolidge V. Parris, 8 Ohio St. 594. Cal. Code Civ. Proc, § 373. 910 ch. v.] MINORS AND OTHER INCOMPETENTS. §679 SO appearing for any minor or infant, insane or incom- petent person, in any suit shall have power to compro- mise the same and to agree to the judgment to be entered therein for or against his ward, subject to the approval of the court in which the action is pending.^ When a minor or infant is defendant, a guardian will be ap- pointed upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the applica- tion of any other party to the action, or of a relative or friend of the infant.^ An appearance of a general guard- ian of a minor is sufficient to give the court jurisdiction of the person of an infant,^ or an incompetent'' defend- ant, and the fact that no guardian ad litem was appointed for them is immaterial,'^ Where a minor or infant de- fendant has no separate or special defense, no separate ••'. Kerrs Cyc. Cal. Code C i v. I'roc, 2d ed., §672; Consolidated Snpp. 1906-1913, p. 1309. A counterpart of § 115 of the New York Code, except the last sentence, added by amendment of 1913. — See Crawford v. Neal, 56 Cal. 321. Bond and oath of guardian ad litem filed need not be shown; it is sufficient to show that he filed a petition for appointment and that the court had appointed him. — Foley V. Northern Cal. Power Co., 165 Cal. 103, 130 Pac. 1183. 4 Kerr's Cyc. Cal. Code Civ. Proc, § 373. r. Smith v. McDonald, 42 Cal. 484; Richardson v. Loupe, 80 Cal. 490, 499, 22 Pac. 227; Emeric v. Alvarado, 64 Cal. 529, 597, 2 Pac. 418, 3 Pac. 105 (although no sum- mons issued) ; Western Lumber Co. V. Phillips, 94 Cal. 54, 29 Pac. 278 (appointment of guardian ad litem immaterial). 6 Redmond v. Peterson, 102 Cal. 595, 599, 41 Am. St. Rep. 204, 206, 207, 36 Pac. 923. 7 Compromise by guardian ad litem, subject to approval of court, is within his powers. — Eggers v. Krueger, 236 Fed. 852. Minors or infants and adults are on same plane as binding effect of judgment entered with consent of his attorney of record employed by next friend. — Beliveau v. Amoskeag Mfg. Co., 68 N. H. 225, 228, 73 Am. St. Rep. 579, 44 L. R, A. 167. 40 Atl. 734. As to judgments against minors or infants, see notes 13 Am. Dec. 159. 89 Am. Dec. 186-193. Next friend can not compromise judgment of minor procured by him.— Fletcher v. Parker, 53 W. Va. 425, 97 Am. St. Rep. 991, 44 S. B. 422. 911 § 680 CODE PLEADING AND PRACTICE. [Pt. Ill, or special answer need be filed in his behalf, but joinder in a common answer with the other defendants is suffi- cient.^ Torts or tvrongs of minor or infant, or person of un- sound mind, render him liable for actual, but not for exemplary damages.^ Probate proceedings not within the above provisions,^'' because the latter are not "civil actions," within the meaning of the provisions of the procedural code;^^ yet it has been held that a guardian ad litem may be ap- Ijointed for the purpose of applying for a family allow- ance in a probate proceeding. ^2 § 680. Misjoinder of defendants — In general. In an action ex contractu, where the the undertaking was joint, and it appears from the plaintiff's pleadings that persons are made parties defendant who should not have been, at common law, the mistake was fatal,^ unless the names of the persons improperly made defendants were struck out before verdict;- or the persons thus wrongfully joined might demur because of the misjoinder,^ or enter a plea in abatement,^ or take advantage of it under the 8 Western Lumber Co. v. Phil- 3 Lipperd v. Edwards, 39 Ind. lips, 94 Cal. 54, 29 Pac. 228. 166; Pangburn v. Ramsay, 11 Kerr's Cyc. Cal. Civ. Code, Johns. (N. Y.) 141; Cameron v. § 41. Reynolds, 1 Cowp. 403, 407, 98 10 Carpenter v. Superior Court, Eng. Repr. 1154, 1156. 75 Cal. 596, 599, 19 Pac. 174; 4 Childress v. McCullough, 5 Port. Lamb, Estate of, 6 Cob. Prob. Dec. (Ala.) 54, 30 Am. Dec. 549; Gard- (Cal.) 432. ner v. Samuels, 116 Cal. 84, 58 11 Carpenter v. Superior Court, Am. St. Rep. 135, 47 Pac. 935; 75 Cal. 596, 599, 19 Pac. 174. Hough v. New Smyrna State 12 Snowball, Estate of, 156 Cal. Bank, 61 Fla. 290, Ann. Gas. 235, 237, 104 Pac. 446. 1912D, 1200, 55 So. 462; Tate v. 1 Bliss on Code PI. § 92. Citizens' Mut. Ins. Co., 79 Mass. 2 1 Chitty's Pleadings (16th Am. (13 Gray) 79; Bibb v. Allen, 149 ed.), p. 51; Robson v. Doyle, 3 U. S. 481, 37 L. Ed. 819, 13 Sup. El. & Bl. 396, 77 Eng. C. L. 395, Ct. Rep. 950. 118 Eng. Repr. 1191; Wickens Reason why misjoinder im- V. Steele, 2 J. Scott N. S. (2 proper need hot be stated in the C. B. N. S.) 488, 89 Eng. C. L. 488. demurrer; it is sufficient to set 912 •h. v.] MISJOINDER OF DEFENDANTS — IN EQUITY. §681 general issue," move arrest of judgment, or sustain a writ of error.^ Where the liability of parties to the obligation was several, a misjoinder of defendants is not necessarily fatal, because a judgment can be given against such only as the evidence showed to be liable/ In ex delicto actions misjoinder of parties defendant does not defeat a recovery against any of the defendants whom the evidence shows to be liable for the tort com- plained of.^ Such joinder constitutes no objection to a recovery against some, only, of defendants.^ In suits in equity. The general rules as to §681. - the joinder of parties, already discussed,^ governs in equitable actions; but as in the case of an action for a tort,^ the rules are not so strictly drawn, and a mis- joinder of parties defendant will not be fatal, where some of the persons named can be dispensed with, and out the names of the persons who are misjoined with the party de- murring; this sufficiently calls the plaintiff's attention to the objec- tion. — G a r d n e r v. Samuels, 116 Cal. 84, 58 Am. St. Rep. 135, 47 Pac. 935. 3 Tate V. Citizens' Mut. Ins. Co., 79 Mass. (13 Gray) 79; Elliot v. Morgan, 7 Cor. & P. 334, 32 Eng. C. L. 642. 6 Robertson v. Smith, 18 Johns. (N. Y.) 459. 9 Am. Dec. 227. 7 Hock V. Allendale Township, 161 Mich. 571, 21 Ann Gas. 118, 126 N. W. 987. 8 Pounds V. Richards, 21 Ala. 424; Milner v. Milner, 101 Ala, 599, 603, 14 So. 373; Lovelace v. Miller, 150 Ala. 422, 14 Ann. Cas. 1139, 11 L. R. A. (N. S.) 670, 43 So. 734; Tandrup v. Sampsell, 234 111. 526, 17 L. R. A. (N. S.) 852, 85 N. E. 331; Chaffee v. United States, 85 U. S. (18 Wall.) 516, 21 L. Ed. 908. I Code PI. and Pr.— 58 9 J As to effect of misjoinder of de- fendants in actions for tort, see note 14 Ann. Cas. 1142. As to joint tort-feasors, see, ante, § 674, post, § 700. As to joinder of husband in action against wife for a tort, see, ante, § 678. 9 Id.; 1 Chitty's Pleading (16th Am. ed.), p. 86; Lovelace v. Mil- ler, 150 Ala. 422, 14 Ann. Cas. 1139; 11 L. R. A. (N. S.) 670, 43 So. 734; Hayden v. Nott. 9 Con. 367; Cunningham v. Dyer, 18 Ky. (2 T. B. Mon.) 51; Lansing v. Montgomery, 2 Johns. (N. Y.) 382; Jackson v. Woods, 5 Johns. (N. Y.) 280; Cooper v. South, 4 Taunt. 802, 128 Eng. Repr. 547. See discussion and authorities, 20 R. C. L. 707, § 48. 1 See, ante, §§635-639. 2 See, ante, § 680, footnotes 8 and 9. 3 § 681 CODE PLEADING AND PRACTICE. [Pt. Ill, the suit dismissed as to them.^ A plaintiff may amend his pleading by omitting a person who is a mere formal party defendant, and whose presence in the snit prevents the court from taking jurisdiction;^ but the mere joinder or non-joinder'^ of merely formal defendants to a suit in equity will not be allowed to defeat the jurisdiction of the court.^ Remedy for misjoinder is demurrer,'^ except in those jurisdictions in which a motion to dismiss as to the per- sons misjoined is provided for;^ but such demurrer may be interposed or motion made by the party or parties who are improperly made defendants, only.^ Rule governing parties defendant in a suit in equity in California is not governed by the old equity rule of pleading/*^ but by the Code of Civil Procedure,^ ^ already discussed.^^ Where there is one connected interest among two or more persons, centering in the point at issue in a suit in equity, they are all properly made de- fendants to such suit.^^ Thus, all persons having a com- mon interest in lands, are proper parties defendant in a 3 Carneal v. Banks, 23 U. S. (10 See numerous cases cited, 1 Wheat.) 181, 6 L. Ed. 297; Vattier Rose's Notes on U. S. Reps., pp. V. Hinde, 32 U. S. (7 Pet.) 252, 8 1242-1245. L. Ed. 675; Horn v. Lockhart, 84 As to joinder of defendants in U. S. (17 Wall.) 570, 21 L. Ed. equity generally, see note 15 Am. 057; Grove v. Grove, 93 Fed. 807; Dec. 427-430. North Carolina Min. Co. v. West- 7 Fellows v. Fellows, 4 Cow. feldt, 151 Fed. 296; Rogers v. (N. Y.) 682, 15 Am. Dec. 412. Penobscot Min. Co., 83 C. C. A. 8 Dolan v. Hubinger, 109 Iowa 380, 154 Fed. 610; Regis v. United 408, 80 N. W. 514; Cedar Rapids Drug Co., 180 Fed. 206. Nat. Bank v. Lavery, 110 Iowa See, also, 20 R. C. L. 709, § 49. 575, 80 Am. St. Rep. 325, 81 N. W. 4 Tug River Coal & Salt Co. v. 775. Brigel, 86 Fed. 818. 9 Gardner v. Samuels, 116 Cal. 5 As to non-joinder generally 84, 90, 58 Am. St. Rep. 135, 47 see, post, §§ 683-685. Pac. 935. Wormley v. Wormley, 21 U. S. lo Id. (8 Wheat.) 421, 5 L. Ed. 651; At- n Id. chison, T. & S. F. R. Co. v. Ph-il- 12 See, ante, §§ 635-639. lips, 100 C. C. A. 215, 176 Pac. 13 Fellows v. Fellows, 4 Cow. 663. (N. Y.) 682, 15 Am. Dec. 412. See 914 ell. v.] MISJOINDER OF DEPENDANTS — INEQUITY. §681 suit in equity for its partition;^'* conspirators and affected persons, proper parties wliere fraudulent con- spiracy charged ;^^' conveyances made to several by agree- ment, all are proper parties defendant in a suit for an accounting;^" likewise several holders of an issue of cor- porate stock alleged to be spurious, to an action for its cancellation;^'^ several mortgagees of a common mort- gagor, are proper parties defendant to a suit in equity to determine the validity of the mortgagor's title,^** or to determine the validity of the mortgages ;i'^ or trustees under different deeds of the same property may be joined as defendants, where the litigation is common to them all;-^ tax-sale purchasers after accrual of plaintiff's lien, are proper parties defendant in a suit to enforce the vendor's lien for purchase money.^^ Varying degrees of interest among the different defendants, is no objection to their joinder, — e. g., where one has but a part interest, the litigated matter being entire f^ thus, several persons concerned in fraudulent acts, are proper parties to a suit to cancel and annul the acts, although the gains by the acts are several.^^ Distinct and uncotmected title being the foundation of the different claims of various parties, whether they may be properly joined as defendants depends upon the circumstances and facts of each particular case, Ave have already seen.-^ Thus, parties holding by different deeds securing creditors, it has been said, can not be joined as Leavens v. Butler, 8 Port. (Ala.) is Carroll v. Roosevelt, 4 Edw. 380; Douglas County V. Walbridge, Ch. (N. Y.) 211. 38 Wis. 179. 19 McLean v. Lafayette Bank, 3 14 Grady v. Malaso, 92 Wis. 666, mcL. 415, Fed, Gas. No. 8886. 66 N. W. 808. 20 Donalson v. Posey, 13 Ala. 15 Stevens v. South Ogden Land, ^gg Build. & Imp. Co., 14 Utah 232, ;^ ^^^^^^ ^ ^^^^^^ ^3 ^^^ ^82. 47 Pac. 81. , ^ ^^ ,, 10 Fish v. Berkey, 10 Minn. 199. 22 Ingersoll v. Kerby, 1 Walk. 17 New York & N. H. R. Co. v. Ch. (Mich.) 65. Schuyler, 17 N. Y. 592. 7 Abb. Pr. -^ Andrews v. Pratt. 44 Cal. 309. 41, reversing 1 Abb. Pr. 417. lm See, ante, §656, footnote 12. 915 ^ 682 CODE PLEADING AND PRACTICE. [Ft. HI, parties defendant where the creditors are unconnected.-"' On the other hand, several persons unconnected, but con- cerned in the same fraud, have been held to be properly joined as parties defendant.-*^ §682. MOETGAGE AND MECHANICS' LIEN FORECLOSURE. In a suit to foreclose a mortgage executed by a wife witli her husband, the wife is a proper party defendant.^ This is under the general rule that in actions to foreclose mort- gages, all parties who own or have an estate in the land to be sold under the decree, and those who, either orig- inally or by assignment, are liable on the mortgage debt, are necessary parties. It is proper, always, to join as defendants all persons materially interested in the subject-matter of the controversy.^ Thus the owner of 25 Johnson v. Brown, 21 Tenn. (2 Humph.) 327, 37 Am. Dec. 556. -■0 Garner v. Harmony Mills, 6 Abb. N. C. (N. Y.) 212, 56 How. Pr. 452. 1 Anthony v. Noye, 30 Cal. 401; Jones V. Gunn, 149 Cal. 687, 87 Pac. 577. See, also, footnote 7, this sec- tion. As to married women defen- dants in actions ex contractu, see, ante, § 677. Where she claims the property as her separate estate by prior conveyance from her husband. — Kohner v. Ashenauer, 17 Cal. 578. Where wife has valid home- stead claim subject to mortgage, if not made party her homestead- right is not affected by the decree. —Jones V. Gunn, 149 Cal. 687, 87 Pac. 577. See Mabury v. Ruiz, 58 Cal. 11. 2Luning v. Brady, 10 Cal. 265; Whitney v. Higgins, 10 Cal. 547, 70 Am. Dec. 748; Montgomery v. Tutt, 11 Cal. 307; Tyler v. Yreka Water Co., 14 Cal. 212; De Leon V. Higyera, 15 Cal. 483; Goode- now V. Ewer, 16 Cal. 461, 76 Am. Dec. 540; McDermott v. Burke, 16 Cal. 580; San Francisco v. Lawton, 18 Cal. 475; Burton v. Lies, 21 Cal. 87; Carpenter v. Williams, 25 Cal. 161; Horn v. Jones, 28 Cal. 194; Anthony v. Nye. 30 Cal. 401; Siter V. Jewett, 33 Cal. 96; Carpenter V. Brenham, 40 Cal. 221; McComb V. Spangler, 71 Cal. 418, 12 Pac. 347; Mitau v. Roddan, 149 Cal. 1, 6 L. R. A. (N. S.) 275, 84 Pac. 145; Hill V. Towniey, 45 Minn. 167, 47 N. W. 653; Wolff v. Ward, 104 Mo. 127, 16 S. W. 161; Gillian v. McDowall, 66 Neb. 820, 92 N. W. 991; Brainard v. Cooper, 10 N. Y. 356; Peck v. Mallams, 10 N. Y. 509, Sheld. Notes 199; Moulton v. Cornish, 138 N. Y. 133, 20 L. R. A. 370, 33 N. E. 842; People v. Mc- Clellan, 119 App. Div. (N. Y.) 421, 104 N. Y. Supp. 447; Case v. Price, 9 Abb. Pr. (N. Y.) Ill, 17 How. Pr. 384; Walsh v. Rutgers F^re Ins. Co., 13 Abb. Pr. 33. 916 ell. v.] FORECLOSURE OF MORTGAGE, ETC. §682 the equity of redemption is a necessary party to a fore- closure suit.3 And the same is true of the grantee or subsequent mortgagee of the mortgagor, otherwise he See note 37 L. R. A. 741. As to necessity of making junior incumbrance party in suit to foreclose, see note 36 L. R. A. (i\. S.) 426. As to riglits of one in possession under mesne conveyance from a purchaser at a void foreclosure sale.— Kaylor v. Kelsey, 91 Neb. 404, 40 L. R. A. (N. S.) 839, 136 N. W. 54. See, also, discussion and author- ities in note 40 L. R. A. (N. S.) 839-848. Holders of tax-liens, outstand- ing, may be brought in on the validity of the liens determined. — Broquet v. Warner, 43 Kan. 48, 19 Am. St. Rep. 124, 22 Pac. 1004. Holder of title not made party decree of foreclosure a nullity. — Haffley v. Maier, 13 Cal. 13. Mortgagor who has conveyed the mortgaged property is not a necessary party defendant when the relief sought is confined to a foreclosure of the mortgage and a sale of the premises, with no prayer for a deficiency judgment. — San Diego Realty Co. v. Hill, 168 Cal. 637, 143 Pac. 1021. See footnote IS, this section. Parties interested must be brought in although their interests are different. — Hill v. Townley, 45 Minn. 167, 47 N. W. 653; Wolff v. Ward, 104 Mo. 127, 16 S. W. 161. Party In interest not before court, on motion court bound to direct that he be brought in and joined as defendant, and to re- fuse to give judgment until this is done. — People v. McClellan, 119 App. Div. (N. Y.) 421, 104 N. Y. Supp. 447. Subsequent lienholders claiming an interest omitted, supplemen- tary suit to bar their claim, is proper procedure in Nebraska. — Gillian v. McDowall, 66 Neb. 820, 92 N. W. 991. Strict foreclosure not allowed to cut off rights of second mort- gagee not made party. — Moulton V. Cornish, 138 N. Y. 133, 20 L. R. A. 370. 33 N. E. 842. As to strict foreclosure of a mortgage generally, see note 20 L. R. A. 370. 3 ARK. — Truman v. Bell, 54 Ark. 273, 26 Am. St. Rep. 35, 15 S. W. 886. CAL.— Cornell v. Corbin. 64 Cal. 197, 30 Pac. 629; Johnston v. McDuffee, 83 Cal. 30, 23 Pac. 214. IND. — Watts V. Julian, 122 Ind. 124, 23 N. E. 698. N. Y.— Landon V. Townshend, 112 N. Y. 93, 8 Am. St. Rep. 712, 16 N. Y. Civ. Proc. Rep. 161, 19 N. E. 424; Reed v. Marble, 10 Pai. Ch. 409; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; New York Life Ins. & Trust Co. V. Bailey, 3 Edw. Ch. 317; Case v. Price, 6 Abb. Pr. 113, 9 Abb. Pr. Ill, 17 How. Pr. 348; Griswold V. Fowler, 6 Abb. Pr. 120; Cooke v. O'Higgins, 14 How. Pr. 154. ORE.— Johnson v. White, 60 Ore. 611, 119 Pac. 769. S. D.— Carpen- ter V. Ingalls, 3 S. D. 49, 51 N. W. 948. WASH.— Bisbee v. Carey. 17 Wash. 224, 49 Pac. 224. FED. —Dexter v. Arnold, 1 Sumn. 109, Fed. Cas. No. 2857; Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5613. 917 §682 CODE PLEADING AND PRACTICE. [Pt. IIT, will not be barred of his estate in the premises but will hold them subject to the lien/ except when he acquires his interest after suit brought.^ But where the payment of the mortgage debt is assumed by the grantee, as be- tween himself and the mortgagor, although the grantee is a necessary party, the grantor is not.^ In New York and other states the wife of the mortgagor, or of the subsequent grantee, is a necessary party, in order to cut off her equity of redemption." An assignee in bank- ruptcy of the mortgagor is a necessary party, and if not 5 joined may sue to redeem;^ but an assignment in bank- ruptcy pending suit does not make the assignee a neces- sary party.^ If a mortgage is assigned as a security, the assignor is a necessary party ;^^ or the assignor of a mortgage who 4 Montgomery v. Tutt, 11 Cal. 314; De Leon v. Higuera, 15 Cal. 483; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Boggs v. Fowler, 16 Cal. 559, 569, 76 Am. Dec. 561; Kohner v. Ashenauer, 117 Cal. 578; Heyman v. Lowell, 23 Cal. 106; Skinner v. Buck, 29 Cal. 253; Bloodworth v. Lake (No. 2), 33 Cal. 265; Porter v. Muller, 65 Cal. 512, 4 Pac. 531; Woodward V. Brown, 119 Cal. 307, 63 Am. St. Rep. 108, 51 Pac. 2, 542; Morrow V. Morrow, 48 Tex. 304. •" W^hitney v. Higglns, 10 Cal. 547, 70 Am. Dec. 748. See, also, authorities footnote 20, this section. 6 Van Nest v. Latson, 19 Barb. (N. Y.) 604; Stebbins v. Hull, 29 Barb. (N. Y.) 524; Drury v. Clark, 16 How. Pr. (N. Y.) 424; McArthur V. Franklin, 15 Ohio St. 485. See, also, footnote 12, this sec- tion. 7 Mabury v. Ruiz, 58 Cal. 11; Mills V. Van Voorhies, 20 N. Y. 412, 10 Abb. Pr. 152; Pickney v. Wallace, 1 Abb. Pr. (N. Y.) 82; Denton v. Nanny, 8 Barb. (N. Y.) 618; Lewis v. Smith, 11 Barb. (N. Y.) 152; Vastee v. Underwood, 18 Barb. (N. Y.) 561; Bromson v. Gifford, 8 How. Pr. (N. Y.) 389; Blydenburg v. Northrop, 13 How. Pr. 289; Wheeler v. Morris, 15 N. Y. Super. Ct. Rep. (2 Bosw.) 524; Union Bank v. Bell, 14 Ohio St. 200; Dexter v. Arnold, 1 Sumn. 109, Fed. Cas. No. 3857; Gordon V. Lewis, 2 Sumn. 143, Fed. Cas. No. 5613. Homestead mortgaged by hus- band wife necessary party in L-uit to foreclose. — Mabury v. Ruiz, 58 Cal. 11; Jones v. Gunn, 149 Cal. 687, 87 Pac. 577. sWinslow V. Clark, 47 N. Y. 261, reversing 2 Lans. 377. 9 Cleveland v. Bacrum, 24 N. Y. 613, affirming 27 Barb. 252; Daly V. Burchell, 13 Abb. Pr. N. S. (N. Y.) 264. 10 Kittle V. Van Dyck, 1 Sandf. Ch. (N. Y.) 76, 3 Leg. Obs. 126. 918 ch. v.] FORECLOSURE OF MORTGAGE, ETC. § 682 guarantees its payment ;^^ otherwise if there is no express covenant to pay, though it forms part of the purchase money.^- In a foreclosure of mortgage given by trustees the cestuis que trust are necessary parties. ^^ When an action is brought to foreclose a mortgage securing the payment of a promissory note, the maker and indorser of the note may be joined as defendants. ^^ A writ of entry to fore- close a mortgage may be maintained against a tenant in possession.^^ Where infants having an equital)le vested remainder in fee, liable to be defeated by their dying in the lifetime of the equitable tenant for life, are not made parties, they are not bound by the decree ;^*^ and where there are several future and contingent interests, the per- son who has the first vested estate of inheritance and all other persons having prior rights or interests in the premises must be made parties, although every person having a future or contingent interest is not a necessary party.^^ In such suit, where the defendant dies after the commencement of suit, the administrator becomes a nec- essary party in a petition for decree of sale of mortgaged premises, if it is sought to have a judgment over against the estate for any deficiency. ^'^ In general, all incumbrances prior and subsequent are proper parties defendant, and should be joined if it is desired to secure a judgment binding them;^" but an 11 Bristol V. Morgan, 3 Edw. Ch. ir. Fales v. Gibbs, 4 Mas. 402, (N. Y.) 142. Fed. Cas. No. 4621. 12 Lockwood V. Benedict, 3 Edw. lo Williamson v. Field, 2 Sandf. Ch. (N. Y.) 472. Ch. (N. Y.) 533. See, also, authorities footnote 6, i" Nodine v. Greenfield, 7 Pai. this section. Ch. (N. Y.) 544, 34 Am. Dec. 3G:;. 13 Woolner v. Wilson, 5 111. App. is Belloc v. Rogers, 9 Cal. 123; 439; Piatt v. Oliver, 2 McL. 267, Fallon v. Butler, 21 Cal. 24. SI Fed. Cas. No. 11115. Am. Dec. 140; San Diego Realty 14 Eastman v. Turner, 24 Cal. Co. v. Hill. 168 Cal. 637, 143 Pac. 379, 382; Meehan v. First Nat. 1021. Bank, 44 Neb. 213, 222, 62 N. W. ii» Haines v. Beach, 3 .Johns. Ch. 490. (N. Y.) 461; Ensworth v. Lambert, 910 §682 CODE PLEADING AND PRACTICE. [Pt. Ill, incumbrancer who becomes such pending suit is not en- titled to redeem, and, therefore, need not be made a party.^" But in California, no person holding a convey- ance from or under the mortgagor of the property mort- gaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action ; and the judgment therein rendered and the proceedings therein had are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action.-^ Ordinarily, in an action to foreclose a mortgage, it is not necessary to make prior mortgagees or incumbrancers parties;-- but all subsequent lienors by judgment must be made parties.-^ It is held in some of the states that the heirs of a deceased mortgagor are necessary parties in a suit to foreclose the mortgage;-^ but in California the heirs are not necessary parties in an action against an 4 Johns. Ch. (N. Y.) 605; Jones v. Williams, 155 N. C. 179, 36 L. R. A. (N. S.) 426, 71 S. E. 222; Finley V. Bank of United States, 24 U. S. (11 Wheat.) 304, 6 L. Ed. 480; Matcalm v. Smith, 6 McL. 416, Fed. Cas. No. 9272. As to necessity of making junior incumbrance party to a fore- closure proceeding, see discussion and authorities in 36 L. R. A. (N. S.) 426. Waiver of junior lien by failure to assert it in foreclosure pro- ceedings. — Dixon V. Eikenberry, 161 Ind. 311, 68 L. R. A. 323, 67 N. E. 915. See, also, note 68 L. R. A. 323. 20 Cook V. Mancius, 5 Johns. Ch. (N. Y.) 89; People's Bank of Hamilton Mfg. Co., 10 Pai. Ch. (N. Y.) 481; Loomis v. Stuyvesant, 10 Pai. Ch. (N. Y.) 490; Winches- ter, Bishop of, V. Paine, 11 Yes. 194, 32 Eng. Repr. 1062, 8 Rev. Rep. 131. See, also, authorities footnote 5, this section. 21 Kerr's Cyc. Cal. Code Civ. Proc, § 726. 22 White V. Holman, 32 Ark. 753; Crawford v. Mumford, 29 111. App. 445; Evans v. McLucas, 12 S. C. 56; Hague v. Jackson, 71 Tex. 761, 12 S. W. 63. 23 De Lashmutt v. Sellwood, 10 Ore. 319; Wilson v. Tarter, 22 Ore. 510, 30 Pac. 500; Williams v. Wil- son, 42 Ore. 306, 95 Am. St. Rep. 745, 70 Pac. 1033. 24 Pillow V. Santelle, 39 Ark. 61; Hill V. Townley, 45 Minn. 167, 47 N. W. 653; Kenshow v. Taylor, 7 Ore. 315; Tropier v. Waldo, 16 S. C. 276; Anrud v. Scandinavian- American Bank, 27 Wash. 16, 22, 67 Pac. 364. 920 ch. v.] FORECLOSURE mechanics' LIEN. §682 administrator to foreclose a mortgage.-'^ The surviving partner is a proper party to an action to foreclose a mortgage made by a deceased partner of his individual property to secure the firm indebtedness, but is not a necessary or indispensable party thereto.^® Suits for the foreclosure of a mechanics' lien are in many respects analogous to those in ordinary foreclosure. All parties necessary to enable the court to do complete justice may be joined.^^ But it is said that in an action to foreclose a mechanic's lien upon a mine and millsito, where the defendant is adjudged a bankrupt pending the proceeding to foreclose, it is not necessary to bring in the trustee in the bankruptcy proceedings under the require- ments of the California procedural code-^ regulating the bringing in of new parties.-^ In a suit to foreclose a lien by a materialman or subcontractor, the contractor or original promisor, against whom a debt must be estab- lished as the foundation of a decree, is an indispensable party.^^ 25 Bayly v. Muehe, 65 Cal. 345, given in Bloom on Mechanics' 3 Pac. 467, 4 Pac. 486; McCaughey Liens, §§ 663-669; Id. Supplement, V. Lyall, 152 Cal. 615, 617, 93 Pac. pp. 234, 235. 681; affirmed, 224 U. S. 558, 56 28 Kerr's Cyc. Cal. Code Civ. L. Ed. 883, 32 Sup. Ct. Rep. 602; Proc, 2d ed., §389; Consolidated McCIung V. Cullins, 15 Okla. 402, Supp. 1906-1913, p. 1420. 406, 82 Pac. 499; Hearfield v. 29 Kritzer v. Tracy Engineerinrr Bridge, 67 Fed. 334-336. Co., 16 Cal. App. 291. 116 Pac. 700. 26 London, Paris & American See authorities, footnote 9, this Bank v. Smith, 101 Cal. 415, 35 section. Pac. 1027. :^o Davis v. John Mouat Lumbor 27 See, generally, ante, §§ 63G- Co., 2 Colo. App. 381, 31 Pac. 1S7; 639; Kaylor v. O'Connor, 1 Estey v. Ilaliock & Howard Luni- E. D. Smith (N. Y.) 672; Sullivan ber Co., 4 Co'.o. App. 165, 34 Pas. V. Decker, 1 E. D. Smith (N. Y.) 1113; Sayre-Newton Lunil)cM- Co. 699; Foster v. S k i d m o r e, 1 v. Park, 4 Colo. App. 432, ;JG Tac. E. D. Smith (N. Y.) 719; Lowber 445. V. Childs, 2 E. D. Smith (N. Y.) California rule and autlioritics 577_ given in Bloom on Mechanics' California rules and cases are Liens, § 6G5; Id. Gupp., p. 23d. 921 5 683 CODE PLEADING AND PRACTICE. [Pt. III. '^ 683. Non-joinder of defendants — In actions at law. At common law, in actions ex contractu, where the obligors were jointly bound, and were all living at the time the suit was commenced, the non-joinder of persons who should be parties defendant could be taken advan- tage of by plea in abatement only,^ verified by affidavit.- In the various jurisdictions in this country, advantage may be taken of the defect, where it appears upon the face of the plaintiff's complaint, by demurrer showing wdio the omitted parties are,^ by motion in arrest of judgment,"* or by a writ of error f and where the defect does not appear upon the face of the complaint, by answer^ or by verified plea in abatement, '^ — and if objec- 1 1 Chitty's Pleading (16th Am. ed.), p. 53; 2 Id., p. 269. See: ARK. — Taylor v. Auditor, The, 2 Ark. 190; Hamilton v. Buxton, 6 Ark. 26. ILL.— Lurton v. Gilliam, 2 111. (1 Scam.) 577, 33 Am. Dec. 430. IND.— Bledsoe v. Irvin, 35 Ind. 294. N. H.— Campbell v. Wal- lace, 12 N. H. 362, 37 Am. Dec. 219. N. Y.— Robertson v. Smith, 18 .Johns. 459, 9 Am. Dec. 227; La Page V. McCrea, 1 Wend. 164, 19 Am. Dec. 469. VT.— Hilliker v. Loop, 5 Vt. 116, 26 Am. Dec. 286; Nash V. Skinner, 12 Vt. 219, 36 Am. Dec. 338; Needham v. Heath, 17 vt. 226. FED.— Oilman v. Rives, 35 U. S. (10 Pet.) 298, 9 L. Ed. 432. 2 1 Chitty's Pleading (16th Am. ed.), p. 53. 3 Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Crawford V. Klamath County School Dist., 68 Ore. 388, Ann. Cas. 1915C, 477, 50 L. R. A. (N. S.) 147, 137 Pac. 217; Roberts v. McLean, 16 Vt. 60S, 42 Am, Dec. 529. Non-joinder disclosed, but it not appearing whether the omitted party is alive or dead, the advan- tage can not be taken advantage of by a general demurrer. — Bur- gess v. Abbott, 6 Hill (N. Y.) 137, 142, affirming 1 Hill 476. Suit on judgment, omission to join one of the joint judgment- defendants must be taken advan- tage of by demurrer; in suit on joint contract, by plea in abate- ment. — Oilman v. Rivers, 35 U. S. (10 Pet.) 289, 9 L. Ed. 432. 4 Roberts v. McLean, 16 Vt. 608, 42 Am. Dec. 529. Ground for nonsuit.— Hilliker v. Loop, 5 Vt. 116, 26 Am. Dec. 286. Roberts v. McLean, 16 Vt. 608, 42 Am. Dec. 529. Motion to dismiss for want of equity not proper method of ob- jecting to non-joinder of defen- dants. — Hightower v. Thornton, S Ga. 486, 52 Am. Dec. 412. Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Eberle v. Drennan, 40 Okla. 59, 51 L. R. A. (N. S.) 68, 136 Pac. 162. 7 Western Union Tel. Co. v. State ex rel. Hammond Elevator Co., 165 Ind. 492, 6 Ann. Cas. 880, 922 •h. V.' NON- JOINDER OF DEFENDANTS. §683 tion is not so taken it is deemed waived.^ lu tliose cases in which the obligors are jointly and severally bound, the plaintiff has his election to sue one or all; and if he should sue more than one and less than all, the defect must be taken advantage of by plea in abatement;'' it is not available under a plea of the general issue ;^'' but where, after issue joined, the cause as to some of the persons who are proper parties defendant is discon- tinued, that fact can be taken advantage of on the trial. ^^ In the case of a joint and several obligation executed by several obligors, and some of the obligors have paid their obligation to the plaintiff, on an action to enforce pay- ment by the delinquent obligors, a complaint against the 3 L. R. A. (N. S.) 153, 76 N. E. 100; State of Indiana v. Worain, 6 Hill (N. Y.) 33, 40 Am. Dec. 378; Gil- man V. Rives, 35 U. S. (10 Pet.) 298, 9 L. Ed. 432. Plea in abatement must be filed before answer in bar is pleaded. —Western Union Tel. Co. v. State ex rel. Hammond Elevator Co., 165 Ind. 492, 6 Ann. Cas. 880, 3 L. R. A. (N. S.) 153, 76 N. E. 100. s See Campbell v, Wallace, 12 N. H. 362, 37 Am. Dec. 219; Zabris- kie V. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Wyman v. Herard, 9 Okla. 35, 59 Pac. 1009; Miller v. Campbell, 13 Okla. 75, 74 Pac. 507; Culbertson v. Mann, 40 Okla. 249, 120 Pac. 918; Eberle v. Drennan, 40 Okla. 59, 51 L. R. A. (N. S.) 68, 136 Pac. 162; Kendall v. Ham- ilton, 4 App. Cas. 504, 1 Eng. Rui. Cas. 175. After answer on merits objec- tion for non-joinder can not be taken.— Pascal v. Duros, 8 Rob. (La.) 112, 41 Am. Dec. 294. 9 ALA, — Jones v. Pitcher, 3 Stew. & P. 135, 24 Am. Dec. 716. CONN.— Bradley v. Camp, 1 Kirby 77, 1 Am. Dec. 13; Davison v. Holden, 55 Conn. 103, 3 Am. St, Rep. 40, 10 Atl. 515. ILL.— Lurton v. Gilliam, 2 111. (1 Scam.) 577, 33 Am. Dec. 430. ME.— Dennett v. Chick, 2 Me. (2 Greenl.) 191, 11 Am. Dec. 53; Chick v. Trevett, 20 Me. 462, 37 Am. Dec. 68; Rand v. Nutter, 56 Me. 339; West v. Fur- bish, 67 Me. 19. MD.— Smith v. Cooke, 31 Md. 174, 100 Am. Dec. 58. N. H.— Olcott v. Little, 9 N. H. 259, 32 Am. Dec. 357; Burt v. Stevens, 21 N. H. 232. N. Y.— La Page v. McCrea, 1 Wend. 164, 19 Am. Dec. 469. FED.— Minor v. Mechanics' Bank, 26 U. S. (1 Pet.) 46, 7 L. Ed. 47; United States v. Leffler, 36 U. S. (11 Pet.) 86, 9 L. Ed. 642. 10 Bradley v. Comp, 1 Kirby (Conn.) 77, 1 Am. Dec. 13; Latli- rop V. Arnold, 25 Me. 136, 43 Am. Dec. 256; Nash v. Skinner, 12 Vt. 219, 36 Am. Dec. 338. 11 New Orleans, City of, v. Rip- lep, 5 La. 121, 25 Am. Dec. 175. 923 § 683 CODE PLEADING AND PRACTICE. [Pt. Ill, defendants wlio are in default only, is not demurrable for non- joinder of parties. ^^ hi actions ex delicto the rule is different. At common law, if several persons jointly committed a tort, the plain- tiff had his election (1) to sue all such persons, (2) to sue any number less than all, and (3) to sue one of them alone.^2 The reason for this rule was the fact that a tort is, in its nature, a separate act of each individual.^^ The rule is the same in this country, both under the former procedure and under the reformed judicature. ^^ Hence, in an action in form ex delicto against one only for a tort committed by two or more persons, he can not plead the nonjoinder of the other or others, in abatement^'^ or in bar,^' in the absence of a statute conferring such a right,^^ because the plea in abatement can be adopted in those cases only in which the plaintiff must join all the parties who are liable, and not in those cases in which the plaintiff has an election and may join all or not, as he may choose.^^ And where an injury results to a person from concurring causes, the acts or omissions of two or more other per- sons, one party in fault is not exempt from full liability for the injury, although another party or parties are 12 Champlin Bros. v. Sperling, in Pascal v. Ducros, 8 Rob. (La.) 84 Neb. 633, 121 N. W. 976. 112, 41 Am. Dec. 294, the court say- 13 1 Chitty's Pleading (16th Am. ing that if the objection could be ed.), p. 97. taken at all, it could not be taken 14 Id.; Sutton v. Clarke, 6 Taunt. after answer to the merits. 29, 35, 42, 1 Eng. C. L. 493, 128 i7 1 Chitty's Pleading (16th Am. Eng. Repr. 943, 16 Rev. Rep. 563, ed.), p. 98. 15 Buckles V. Lambert, 61 Ky. is See Tootle v. Coleman, 46 (4 Mete.) 330; Burnham v. Web- C. C. A. 132, 57 L. R. A. 120, 107 Bter, 5 Mass. 269, 270; Thomas v. Fed. 41. Ramsey, 6 Johns. (N. Y.) 31; i9 1 Chitty's Pleading f 16th Am. Creed v. Hartmann, 29 N. Y. 591, ed.), p. 98; Wheeler v. Worcester, 86 Am. Dec. 441; North Pa. R. Co. 92 Mass. (10 Allen) 600, 601; Sut- V. Mahony, 57 Pa. St. 152. ton v. Clarke, 6 Taunt. 29, 35, 42, 10 Mitchell v. Torbutt, 5 T. R. 1 Eng. C. L. 493, 128 Eng. Repr. 649, 2 Rev. Rep. 648, 101 En.g. 943, 16 Rev. Rep. 563; Mitchell v. Repr. 362, 1 Eng. Rul. Cas. 183. Torbutt, 5 T. R. 649, 2 Rev. Rep. Question raised and not decided 648, 1 Eng. Rul. Cas. 183. 924 ch. v.] NON-JOIXDER — IN EQUITY. §684 equally culpable,-" and the acts contributing to the injury were each independent one of the other.-^ Exceptions to the rule are to be noted. Thus, in a case where the dogs of separate individual owners worry and kill the sheep of a third person, such third person can not maintain a joint action against the o^\^lers of the dogs to recover for the damage done to the sheep.^^ In a case where several persons are the joint owners of real prop- erty, and the injury results from a neglected duty inci- dent to their ownership or title, where one of the joint owners is sued alone for the injury, he may plead in abatement the non-joinder of his co-tenants.-^ ^ 684. In suits in equity. The general rules regarding the joinder and non-joinder of parties in gen- eral have been already discussed,^ and noted that in those cases in which there is an association- of several persons A\ith a common or general interest,^ one or more may sue 20 Wolff Mfg. Co. V. Vinson, 152 111. 9, 26 L. R. A. 229, 38 N. E. 694 (negligently knocking over barber's pole on traveler, although barber negligent in placing same) ; Louisville & Evansville Mail Co. V. Barnes, 117 Ky. 860, 111 Am. St. Rep. 273, 64 L. R. A. 574, 79 S. W. 261 (death of passenger through negligence of steamer company no bar to recovery from another company where negli- gence also responsible) ; Ricker V. Freeman, 5 N. H. 420; Chapman V. New Haven R. Co., 19 N. Y. 341, 75 Am. Dec. 344; Schonfeld v. Metropolitan St. R. Co., 40 Misc. (N. Y.) 201, 204, 81 N. Y. Supp. 644; Mott v. Hudson River R. Co., 21 N. Y. Super. Ct. Rep. (8 Bosw.) 345; Beopple v. Illinois Cent. R. Co., 104 Tenn. 420, 428, 58 S. W. 231 (railroad company improperly blocking street liable for damages caused by reason of frightening horses by the negligent operation of another train) ; Peck v. Neal, 3 McL. 22, Fed. Cas. No. 10892. As to effect of concurring negli- gence of third party upon liability. See note 17 L, R. A. 33. 21 Day V. Louisville Coal & Coke Co., 60 W. Va. 27, 10 L. R. A. (N. S.) 167, 53 S. E. 776. 22 See Russell v. Tomlinson, 2 Conn. 206; Van Steinburgh v. To- bias, 17 Wend. (N. Y.) 562, 31 Am. Dec. 310; Adams v. Hall, 2 Vt. 9, 19 Am. Dec. 690. See, also, 1 Chitty's Pleading (16th Am. ed.), p. 93, and especi- ally footnote Ul. 2:i Southard v. Hill. 44 Me. 92, 69 Am. Dec. 85; Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471, 3 Am. Dec. 345. 1 See, ante, §§ 635-640. 2 See, ante, § 644. 3 See, ante, § 651. 925 § 685 CODE PLEADING AND PRACTICE. [Pt. Ill, or defend for all. The rules above discussed apply, alike, in law and equity, and in equity, when the parties are numerous and difficult or impracticable to bring before the court, ^ the joinder or non-joinder is a matter of sound judicial discretion on the part of the trial court.'^ Sucli persons, only, as have such an interest in the subject- matter of the action, or in the decree to be rendered, as to render them necessary to a complete determination of the controversy before the court, are necessary and indis- pensable parties;^ others may be proper parties," but their non-joinder can not be objected to.'* All the persons interested in the defense of the suit should be joined as defendants, except in those cases in which there is \dr- tual representation within the rule already discussed," or the court can completely determine the controversy between the parties without affecting their interests ;^'^ but where the interests of parties already made defend- ants and other persons not before the court are insepar- able, and the court for that reason is unable to make a complete determination of the controversy, the non-join- der of such other parties is an insuperable objection to proceeding with the suit.^^ The court may order such parties to be brought in ;^- and if that is not done the suit must be dismissed.^^ § 685. Time and mode of objecting. An objection for non-joinder of parties defendant must always be timely made, and is usually required to be before an answer on the merits,^ otherwise the objection is deemed 4 See, ante, § 644, footnotes 4-7. 9 See, ante, § 644. '< See, ante, § 681. lo See, ante, § 639; see, also, 20 6 See, ante, §§ 637-639. R. C. L. 704, footnote 5. 7 See, ante, § 636. ii See authorities, 20 R. C. L. s Delaware County v. Diebold 704, footnote 3. S. & L. Co., 133 U. S. 473, 33 L. Ed. 12 See, ante, §§ 648, 649. 674, 10 Sup. Ct. Rep. 399; Stephen is See 20 R. C. L. 704, footnote 4. V. Beall, 89 U. S. (22 Wall.) 329, 1 Pascal v. Duros, 8 Rob. (La.) 22 L. Ed. 786. 112, 41 Am. Dec. 294. 926 Ch. v.] NOX-JOIXDER — OBJECTION FOR. § 685 to have been waived.- The method in which objection to be taken for non-joinder of necessary parties has been sufficiently discussed in a previous section, where the objection is taken by a defendant;^ but it is the province of the court to object on its own initiative, whenever it ascertains that some parties who are necessary to a com- plete determination of the controversy are not before the court,^ and to order such parties brought in.^ Where the rights of the parties not before the court are inti- mately connected with the subject-matter in controversy, so that a final judgment can not be rendered or a final decree entered without materially affecting their inter- ests, the objection may be taken at any time on the hear- ing, or on appeal or error.'' The courts will, ex officio, take notice of such omission, and rule accordingly.' Where the persons omitted were merely formal parties, and not indispensable to a complete decision of the contro- versy upon the merits, it will be too late to make the objection even at the hearing of the cause.^ As to form of objection for non- v. Seaton, 26 U. S. (1 Pet.) 7 L. Ed. joinder of parties defendant gen- 152; Coiron v. Millaudon, 60 U. S. erally, see note 43 Am. Dec. 259. (19 How.) 113, 15 L. Ed. 575; Hoe As to how and when objection v. Wilson, 76 U. S. (9 Wall.) 501. taken for non-joinder of parties 19 L. Ed. 672; Susquehanna & defendant, see note 43 Am. Dec. W. V. R. Co., 78 U. S. (11 Wall.) gg4 172, 20 L. Ed. 179, PI. 638, 860. - -o- . . ^ o Administrator only defendant in 2 See, ante, §683, footnote 8. ._ ^ •',.,,. a suit to enforce a mechanics lien, 3 See, ante, § 683. judgment for plaintiff must be re- 4 See, supra, §§637-639. versed for want of necessary 5 As to bringing in new parties parties defendant. — Hughes v. Tor- and the method thereof, see, ante, gerson, 96 Ala. 346, 39 Am. St. Rep. §§ 647-650. 105, 16 L. R. A. 60, 11 So. 209. 6 Hughes V. Torgerson, 96 Ala. 7 Prentice v. Campbell, 19 111. 346, 38 Am. St. Rep. 105, 16 L. R. A. 323; Gerard v. Bates, 124 111. 150, 600, 11 So. 209; Spear v. Campbell, 7 Am. St. Rep. 350, 16 N. E. 258. 5 111. (4 Scam.) 426; Prentice v. sid.; see, ante, §683, footnotes Kimball, 19 111. 323; Gerard v. 7 and 8. Bates, 124 111. 150, 7 Am, St. Rep. See, also, discussion and author- 350, 16 N. E. 258; Mechanics' Bank ities, 20 R. C. L. 705, § 45. 927 § 686 CODE PLEADING AND PRACTICE. [Pt. Ill, § 686. Persons severally bound on same obligation or INSTRUMENT. Under the provisions of the California pro- cedural code persons severally liable upon the same obli- gation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff ; and all or any of them join as plaintiffs in the same action, concerning or affecting the obligation or instru- ment upon which they are severally liable.^ Thus, where the same person is insured by two or more insurers sep- arately in respect to the same subject and interest, such person, or the payee under the policies, or the assignee of the cause of action, or other successor in interest of such assured or payee, may join all or any of such insur- ers in a single action for the recovery of a loss under the several policies, and in case of judgment a several judg- ment must be rendered against each of such insurers according as his liability shall appear.^ This provision of the code applies to written obligations only,^ such as bonds,^ bills of exchange, and promissory notes ;^' and onlj^ to cases of joint and several contracts.® 1 Kerr's Cyc. Cal. Code C i v. against the county involving the Proc, § 383. See Powell v. Pow- validity of such bonds. — Hutchi- ell, 48 Cal. 235; London, Paris & son v. Burr, 12 Cal. 103; Patterson American Bank v. Smith, 101 Cal. v. Yuba County Supervisors, 12 415, 35 Pac. 1027; Webaux v. Cal. 106. Grinnell Live-Stock Co., 9 Mont. In Oregon sureties on executor's 154, 29 Pac. 492. bond are not to be sued until de- 2 Kerr's Cyc. Cal. Code C i v. fault in probate court. — Hamlin v. Proc, § 383. Kennedy, 2 Ore. 91. ■'! Tibbets v. Percy, 24 B a r b. In Dakota the same rule has (N. Y.) 39; Spencer v. Wheelock, been declared. — Territory ex rel. 11 N. Y. Leg. Obs. 329. Hall v. Bramble, 189, 202, 5 N. W. 4 People V. Hartley, 21 Cal. 585, 945. 82 Am. Dec. 758; People v. Love, 5 Brainard v. Jones, 11 How. Pr. 25 Cal. 530. (N. Y.) 569. Holders of county bonds should 6 Humphreys v. Crane, 5 Cal. be made parties defendant in suit 173; Stearns v, Auirre, 6 Cal. 176. 928 ch. v.] JOINTLY AND SEVERALLY LIABLE. § 686 Persons jointly and severally liable may be sued to- gether or separately, at the option of the plaintiff.' In actions on joint and several obligations, an administrator can be joined with the sur\ivor.^ To create a several liability, express words are necessary.^ In New York, it seems the plaintiff may sue one or all of the obligors of a joint and several bond ; but in strictness of law, he can not sue an intermediate number.^^ The practice is, how- ever, different in California, where one or all of any intermediate number may be made defendants, at the option of the plaintiff.^^ So, also, in cases of a promis- sory note, endorsers thereon and a mortgage securing the same;^- only one action lies for the recovery of tlie debt and the enforcement of the right secured by mort- gaged^ Although the several parties to a bill or note may be sued in one action, yet their being so sued does not make them jointly liable,^^ or joint debtors.^"* The common-law rule, that where defendants are sued on a joint contract, recovery must be had against all or none is modified by the Calif ornia^^ and other procedural 7 See 1 Chitty's Pleading (16th 12 Eastman v. Truman, 24 Cal. Am. ed.), pp. 49-50. 379, 382. 8 See, ante, § 654. 13 Eastman v. Truman, 24 Cal. Brady v. Reynolds, 13 Cal. 31. 379, 382. See Cederholra v. Loof- loCarman V. Plass, 23N. Y. 286; borrow, 2 Idaho 176, 178, 9 Pac. Loomis V Brown, 16 Barb. (N. Y.) 641; Bacon v. Reynould, 4 Utah 325; Allen v. Fosgate, 11 How. Pr. 357. 360, 10 Pac. 481, 11 Pac. 510. (N. Y.) 218; Brainard v. Jones, 14 Alfred v. Watkins, 1 N. Y. 11 How. Pr. (N. Y.) 569; Phalen Code Rep. (N. S.) 343, 1 Edm. Sel. V. Dingee, 4 E. D. Smith (N. Y.) Cas. 369. 379; Leroy v. Shaw, 9 N. Y. Super. isKelsey v. Bradbury, 21 Barb. Ct. Rep. (2 Duer) 626; Minor v. (N. Y.) 351; Farmers" Bank v. Mechanics' Bank, 26 U. S. (1 Pet.) Blair, 44 Barb. (N. Y.) 642. See 46, 7 L. Ed. 47; Hines v. Smith, Nelson v. Webster, 72 Neb. ?.?,2. 41 U. S. (16 Pet.) 303, 10 L. Ed. 117 Am. St. Rep. 799, 68 L. R. A. 973. 513, 100 N. W. 411. 11 See footnote 1 and text, this See, also, note 68 L. R. A. 513. section; Lewis v. Clark, 18 Cal. 10 See Kerr's Cyc. Cal. Code Civ. 400; People v. Love, 25 Cal. 520. Proc, §989. 1 Code PI. and Pr.— 59 029 ^687 CODE PLEADING -AND PRACTICE. [Pt. Ilf, codes. ^^ But one of two joint debtors, not served with process, is not a proper party defendant in an action upon the judgment against the party on whom service of process was made;^^ and where alleged partners are sued and only one served the judgment is binding only upon the partner served and his interest in the partner- ship property.^** So, where joint debtors reside in dif- ferent states, they may be sued separately.-*^ It seems that different parties, liable for the same sum, but under different contracts, can not be joined in the same ac- tion,-^ — so held in New York, as to a guaranty w^ritten under a promissory note,-- and that the guarantor can not be sued in the same action with the maker.-^ It was there held, also, that the liability of a purchaser and his guarantor,--' and of a lessee and his surety,-^ is several. § 687. Persons not bound. In an action for the breach of a contract, where the evidence justifies, a recovery may be had against one, or the other, or both of the parties made defendant; hence one defendant, who is bound, can not be heard to complain that his codef endant 17 See People v. Frisbie, 18 Cal. 298; Allen v. Fosgate, 11 How. Pr. 42; Lewis v. Clarkin, 18 Cal. 399. (N. Y.) 218. isTay V. Hawley, 39 Cal. 93. 22 Brewster v. Silence, 8 N. Y. .- „ 207, affirming 11 Barb. 144; Draper V. Snow, 20 N. Y. 331, 75 Am. Dec. 19 Stewart v. Spalding, 72 Cal. ^^g. ^j^^.^^ ^ Watkins, 1 N. Y. 264, 267, 13 Pac. 661; Kleinschmidt ^^^^ ^^^ ^ S 343^ ^ ^^^^ S^l V. Freeman, 4 Mont. 400, 407, 2 ^^^ ^^^. ^^^^^^ ^ Bradbury, 21 Pac. 275; Knatz v. Wise, 16 Mont. ^^^^ ^^ Y.) 531; Church v. 555, 599, 41 Pac. 710; Noyes v. Bar- j.^^^^_ ^9 Barb. (N. Y.) 4S6. nard, 63 Fed. 786. ^.3 ^^^^^ ^ Fosgate, 11 How. Pr. 20 Brown v. Birdsall, 29 Barb. (N. Y.) 213. (N. Y.) 549. 24 Leroy v. Shaw, 9 N. Y. Super. 21 See Brown v. Curtis, 2 N. Y. Ct. Rep. (2 Duer) 626; Spencer v. 207, affirming 2 Barb. 51; White Wheelock, 11 N. Y. Leg. Obs. 329. V. Low, 7 Barb. (N. Y.) 704; De California rule different under Ridder v. Schennerhorn, 10 Barb. the code provision. See footnote (N. Y.) 638; Barker v. Cassidy, 16 1 and text, this section. Barb. (N. Y.) 177; Glen Cove Mut. 2.^. Phalen ' v. Dingee, 4 E. D. Ins. Co. v. Harold, 20 Barb. (N. Y.) Smith (N. Y.) 379. 930 •h. v.] PRINCIPAL AND AGENT. § 688 is not bound by the contract sued on. Thus, where a min- ing company and its manager are both sued as principal for damages for breach of contract, the company has no ground to complain because the manager, who is not bound, is made a party to the suit, if in fact the company is bound by the contract.^ § 688. Principal and agent. The general rule of law is that a principal, although himself innocent, is liable for any fraud or misconduct, to the injury of a third party, of his agent acting within the scope of his au- thority;^ but not for acts and representations of the agent 1 Buffati V. Soci6t§ Anonyme des Mines de Lexington, 10 Utah 386, 37 Pac. 591. 1 Wolfe V. Paugh, 101 Ind. 293; Du Souchet v. Dutcher, 113 Ind. 249, 15 N. E. 459. IOWA— Hol- lingsworth v. Holbrook, 80 Iowa 151, 20 Am. St. Rep. 411, 45 N. W. 561; John Gund Brewing Co. v. Peterson, 130 Iowa 301, 106 N. W. 741. NEB.— Fitzgerald v. Fitzger- ald & M. Constr. Co., 44 Neb. 463, 62 N. W. 899. N. Y.— Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Thompson v. Supreme Tent K. M., 189 N. Y. 301, 121 Am. St. Rep. 879, 12 Ann. Gas. 552, 13 L. R. A. (N. S.) 318, 82 N. E. 141; Hunter v. Hudson River Iron & Machine Co., 20 Barb. 493; Adams V. Cole, 1 Daly 147; Smith v. Reynolds, 8 Hun 128; Trankla v. McLean, 18 Misc. 221, 41 N. Y. Supp. 385. OKLA.— Fidelity Fund- ing Co. V. Vaughn, 18 Okla. 13, 10 L. R. A. (N. S.) 1123, 90 Pac. 34. S. C— Reynolds v. Witte, 13 S. C. 5, 36 Am. Rep. 678; Cobb v. Colum- bia & G. R. Co., 37 S. C. 194. 15 S. E. 878; Rucker v. Smoke, 37 S. C. 377, 34 Am. St. Rep. 758, 16 S. E. 40; Whaley v. Duncan, 47 S. C. 139, 25 S. E. 54; Hutchinson V. Rock Hill Real Estate & Loan Co., 65 S. C. 45, 43 S. E. 295; Mitchell V. Leech, 69 S. C. 413, 104 Am. St, Rep. 811, 66 L. R. A. 723, 48 S. E. 290; Williams v. Tolbert, 76 S. C. 217, 56 S. E. 908; Williams V. Tolbert. 76 S. C. 211. 56 S. E. 908; Fields v. Lancaster Cotton Mills, 77 S. C. 549, 122 Am. St. Rep. 593, 11 L. R. A. (N. S.) 821, 58 S. E. 608; Stevenson Co., J. C, V. Eethea, 79 S. C. 492, 61 S. E. 99; Brown v. American Tel. «S: Tel. Co., 82 S. C. 173, 63 S. E. 744; Green v. People's Warehouse Co., 85 S. C. 44, 67 S. E. 14, sub nom. Green v. Ervin, 27 L. R. A. (N. S.) 1015. TEX. — Thompson v. Grand Inter- national Brotherhood L. E., 41 Tex. Civ. App. 189, 91 S. W. 834. UTAH — Lewis V. Mammoth Min. Co., 33 Utah 273, 15 L. R. A. (N. S.) 439, 93 Pac. 732. WIS.— Matteson v. Rice, 116 Wis. 328, 92 N. W. 1109. FED.— Mclntire v. Pryor, 173 U. S. 38, 43 L. Ed. 006, 19 Sup. Ct. Rep. 352; Pacific Postal Tel. Cable Co., 2 Bank of Palo Alto. 48 C. C. A. 413, 109 Fed. 369, affirming 103 Fed. 841. As to liability of principal for 931 s^688 CODE PLEADING AND PRACTICE. [Pt. Ill, while acting in matters beyond the scope of his authority. - Thus, where an agent, to induce a third person to enter into a contract, makes a promise which he has no inten- tion of performing, and the principal accepts the benefits of the contract without knowledge of the false promise, the third person having no knowledge or notice of the falsity of the promise, the principal will not be entitled, on discovering the fraud of his agent, to a rescission of the contract.^ Wliere the principal is known, he alone is liable ;* but an agent may render himself personally liable by not disclosing the name of his principal,^ or by signing his ovra name and merely adding a descriptive word.® If on the face of an instrument not under seal, executed by an agent with competent authority, by signing his own name simply, it appears that the agent executed it in torts and fraud of agent, see note 88 Am. St. Rep. 795. As to liability of officers of cor- poration for misfeasance or non- feasance of agent, etc., of corpora- tion, see note 48 Am. St. Rep. 913- 928. Alteration of chattel mortgage by agent authorized to take secur- ity for debt, avoids the mortgage in the hands of the principal. — Rollings worth v. Holbrook, 8 Iowa 151, 20 Am. St. Rep. 411, 45 N. W. 561. But an alteration of a note by an agent not authorized to take notes or make settlements, does not invalidate the note in the hands of the principal. — Kingan v. Silvers, 13 Md. App. SO, 37 N. E. 413. 2 Marsh v. South Carolina R. Co., 56 Ga. 274; Kingan v. Silvers, 13 Ind. App. 80, 37 N. E. 413; New York Life Ins. & Trust Co. v. Beebe, 7 N. Y. 364; Mechanics' Bank v. New York & N. H. R. Co., 13 N. Y. 599, affirming 11 N. Y. Super. Ct. Rep. (4 Duer) 480, 570; Societe des Mines D' Argent et Fonderies de Bingham v. Mackin- tosh, 5 Utah 5C8, 18 Pac. 363. 3 Schultz V. McLean, 93 Cal. 329, 28 Pac. 1053, 1060. 4 Conro V. Fort Henry Iron Co., 12 Barb. (N. Y.). As to liability of principal on negotiable paper executed by agent, see note 21 L. R. A. (N. S.) 1046-1087. 5 New York Life Ins. Co. v. Mar- tindale, 75 Kan. 142, 121 Am. St. Rep. 362, 21 L. R. A. (N. S.) 1045. 88 Pac. 559; Cobre v. Sturgess, 1 Hilt. (N. Y.) 160; Bakeman v. Mackay, 1 Hilt. (N. Y.) 266; Nason v. Cockroft, 10 N. Y. Super. Ct. Rep. (3 Duer) 366. 6 Melone v. RufBn, 129 Cal. 514, 523, 79 Am. St. Rep. 127, 134, 62 Pac. 93; Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. App. 535, 60 Am. St. Rep. 178, 47 N. i:. 227; Taylor v. Reger, 18 Ind. App. 932 ell. v.] JOINT LIABILITY' PULVCIPAL, ETC. §688 behalf of the principal, the principal and not the agent is bound/ Where a party makes a purchase from an inno- cent agent, who afterwards parts with the money of liis principal, and the purchase avails the purchaser nothing, no legal right of complaint will lie against the agent. ^ Principal and agent are jointly liable for an injury caused by negligence of the agent. ^^ An agent is liable 470, 63 Am. St. Rep. 352, 48 N. E. 262; Matthews v. Dubuque Mat- tress Co., 87 Iowa 246, 19 L. R. A. 676, 54 Pac. 225; Day v. Ramsdell, 90 Iowa 733, 57 N. W. 630; Bank of Stratton v. Dixon, 105 Iowa 151, 74 N. W. 919; Gavazza v. Plum- mer, 53 Wash. 14, 42 L. R. A. (N. S.) 1, 101 Pac. 370; Nunne- macher v. Poss, 116 Wis. 449, 92 N. W. 377. Agent personally bound by a contract reciting that "I (giving his name) treasurer" of a desig- nated corporation, "do hereby agree" signed by his own name, to which he affixes the descriptive word "Treas." — Gavazza v. Plum- mer, 53 Wash. 14, 42 L. R. A. (,N. S.) 1, 101 Pac. 370. See authorities fully collected in note 42 L. R. A. (N. S.) 1-63. But an officer of a corporation does not make himself personally liable by signing its name, adding his individual name and descrip- tive word or abbreviation of the office he holds. — Pease v. Globe Realty Co., 141 Iowa 482, 42 L. R. A, (N. S.) 6, 119 N. W. 975. 7 CAL.— Haskell v. Cornish, 13 Cal. 45; Shover v. Ocean Min. Co., 21 Cal. 45; Hall v. Crandall, 29 Cal. 571, 89 Am. Dec. 666; Love v. Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 654, 91 Am. Dec. 602; Lander v. Castro, 43 Cal. 501; Blanchard v. Kaull, 44 Cal. 450. 452; Farmers' & Mechanics' Bank of Sav. v. Colby, 64 Cal. 352, 354, 28 Pac. 118; Bean v. Pioneer Min. Co., 66 Cal. 451, 455, 56 Am. Rep. 108, 6 Pac. 86; Senter v. Monroe, 77 Cal. 347, 350, 351, 19 Pac. 580. IOWA— Capital Sav. Bank & T. Co. V. Swan, 100 Iowa 722, 69 N. W. 1065. NEB.— Cole v. O'Brien, 34 Neb. 68, 33 Am. St. Rep. 616, 51 N. W. 316. NEV.— Gillig v. Lake Bizler Road Co., 2 Nev. 214, 223; Schaeffer v. Bedwell, 9 Nev. 209, 211. PA.— Williams v. Hippie, 17 Pa. Super. Ct. Rep. 85; Williams v. Hippie, 8 Del. Co. Rep. 200. WIS.— Germania Nat. Bank v. Mariner, 129 Wis. 547, 109 N. W. 575. See notes 19 L. R. A. 676; 21 L. R. A. (N. S.) 1064. sEngels v. Heatly, 5 Cal. 135: Simmonds v. Long, 80 Kan. 155, 23 L. R. A. (N. S.) 553, 101 Pac. 1070. As to right to recover from agent money paid to him for his principal, see note 23 L. R. A. (N. S.) 553. Kerr's Cyc. Cal. Civ. Code. § 2338. 10 See Berghoff v. McDonald. 87 Ind. 549; Malone v. Morton, 84 Mo. 436; Martin v. Benoist, 20 Mo. App. 262; Phelps v. Waite, 30 N. Y. 78. As to liability of agents and officers of corporation for negli- gence, see note 48 Am. St. Rep. 913. 933 § 689 CODE PLEADING AND PRACTICE. [Pt. Ill, to a third person for personal injuries caused by mis- feasance of the agent,^^ but not for those caused by his nonfeasance/^ although the contrary is held.^^ § 689. Quo WARRANTO P ARTIES PLAINTIFF AND DEFEN- DANT. At common law, a proceeding by writ of quo war- ranto was a civil remedy available to the state or sov- ereign only; and a proceeding by information in the nature of a quo warranto was a criminal proceeding to punish for usurpation of a public office or a franchise, and could be maintained by the state only. In the various jurisdictions in this country, in the absence of a statute conferring upon individuals the power to sue out a writ of quo warranto or an information in the nature of a quo warranto, the state alone can be the moving party in such a proceeding.^ It is the function of the attorney- general, or other law officer under statute, as the legal representative of the state, to determine (1) whether a public office or franchise has been usurped, and (2) whether the public welfare will be promoted by an action to oust the usurper;- and an information in the name of the state on the relation of the attorney-general, founded upon and supported by the affidavit of the person seeking the benefit of the remedy, is sufficient in form, 11 Mayer V. Thompson-Hutchison Am. St. Rep. 913, 28 L. R. A. 43.'). Bldg. Co., 104 Ala. 611, 53 Am, St Rep. 88, 28 L. R. A. 433, 16 So 620; Greenberg v. Whitcomb Lum her Co., 90 Wis. 225, 48 Am. St Rep, 911, 28 L, R. A. 439, 63 N. W 93. 12 Greenberg v. Whitcomb Lum ber Co., 90 Wis. 225, 48 Am. St Rep. 911, 28 L. R. A. 439, 63 N. W 1 See discussion in note Ann. Cas. 1918D, 215. Attorney-general, as the law of- ficer of the state, can not, by con- sent, confer upon a private person jurisdiction to maintain the pro- ceeding, in the absence of statu- tory provisions conferring such a right. — See State Railroad Com- 93. mission v. People ex rel. Denver & 13 Mayer V. Thompson-Hutchison R. G. R. Co., 44 Colo. 345, 22 Bldg. Co., 104 Ala. 611, 53 Am. St. L. R. A. (N. S.) 810, 98 Pac. 7. Rep. 88, 28 L. R. A. 433, 16 So. 620. 2 State Railroad Commission v. As to liability of agents to third People ex rel. Denver & R. G. R. persons for injuries received Co., 44 Colo. 345, 22 L. R. A. (N. S.) through their negligence, see 48 810, 98 Pac. 7, 03d- eh. v.] QUO WARRANTO — PARTIES. §681) without joining such person formally as a party to the information and proceeding.'' The writ of quo warranto, or an information in the nature of a quo warranto, is a writ of grace and not of right, and can be obtained only by the permission of the attorney-general, a private per- son having no right to the writ to adjudicate his right to an office,^ and the like, in the absence of statutory pro- vision granting that right, — as discussed below. Private persons may prosecute information in the nature of quo warranto, under statutory provision, in the name of the attorney-general, w^ith the consent of the court,^ when the attorney-general neglects or refuses to act, to determine the right to hold a public office and receive the emoluments thereof; and in some jurisdic- tions to determine the right to exercise a franchise. Under some of the statutes any citizen may prosecute the proceeding without being himself a claimant to the 3 state V. Brooks (Del.), 74 Atl. Union Investment Co., 7 S. D. 51, 37; State ex rel. Mitchell v. Horan. 22 Wash. 197, 60 Pac. 135; State ex rel. Nelson v. Mott, 111 Wis. 19, 86 N. W. 569. As to requirements under statu- tory provision, see note Ann. Cas. 1918D, 215. Claimant to the office need not Ijring the suit. — State ex rel. Mit- chell V. Horan, 22 Wash. 197, 60 Pac. 135. Usurpation of franchise charged it is immaterial whether the pros- ecution be stj'led as in the name of the state, alone, or in the name of the state upon the relation of a designated officer or private citi- zen. — State ex rel. Fullerton v. Des Moines City R. Co., 135 Iowa 694, 109 N. W. 867. — In South Dakota the proceed- ing must be in the name of the state alone as the real party in interest. — State ex rel. Gilbert v. 63 N. W. 232. 4 De Vigil V. Stroup, 15 N. M. 544, 110 Pac. 830; Lamoreaux v. Ellis, 89 Mich. 146, 50 N. W. 812 (candidate receiving next to high- est number of votes can not, on his own behalf, maintain the pro- ceeding). Application by private citizen to supreme court not granted. — See State ex rel. Frish v. Noble, 16 N. D. 168, 125 Am. St. Rep. 628, 112 N. W. 141. 5 Claimant entitled to maintain proceedings when public law of- ficer refuses to prosecute proceed- ings to try title to office. — State ex rel. Kellogg v. Barr, 90 Neb. 766, 134 N. W. 52.5. Discretion of court to allow tbe prosecution by private individual is a sound discretion, and the or- der granting the leave is not open to dispute on the trial. — State ex 935 § 089 CODE PLEADING AND PKACTICE. [Pt. Ill, office," or entitled to hold sueli office, as against an incum- bent not entitled to hold the office,' provided he is a free- holder, elector,^ and a resident of the territory or district in which the office is exercised f althougli there are some statutes under which such a relator must have an in- terest^" personal and peculiar to himself^ ^ before ho is entitled to exercise the right, and he must have no other remedy.^- But under no statute is a private person au- thorized to maintain such proceeding for the purpose of protecting his private interests rather than safeguard the public welfare,^^ except in the class of cases already referred to.^^ Defendants — In proceedings to try title to office, public or private, may be joined in those cases in which the rights involved, and the proofs to sustain such rights, are substantially the same,^^ — e. g., where the proceedings rel. Heffelfinger v. Brown, 144 Iowa 739, 123 N. W. 779. In exceptional cases may be granted without consent of attor- ney-general. — State ex rel. Ruess- wig V. McDonald, 101 Minn. 349, 112 N. W. 278. r. Bonynge v. Frank, 89 N. J. L. 239, Ann. Cas. 1918D, 211, 98 Atl. 456. T People ex rel. Bledsoe v. Camp- bell, 138 Cal. 11, 70 Pac. 918; Lon- doner V. People ex rel. Barton, 15 Colo. 557, 26 Pac. 135. >< E 1 e c t o r whose property as- sessed by trustees of village after termination of existence of village. — State ex rel. Banta v. Greer, 86 Neb. 88, 124 N. W. 905. Owner of agricultural lands in- cluded within city limits, may maintain quo warranto to deter- mine the validity of such inclu- sion, although not a voter in the city. — State ex rel. Hammond v. Dimond, 44 Neb. 154, 62 N. W. 498; State ex rel. Loy v. Mote, 48 Neb. 683, 67 N. W. 810. 9 People ex rel. Barton v. Lon- doner, 13 Colo. 444, 22 Pac. 764. 10 In lov/a any citizen having an interest. — State ex rel. Fullerton V. Des Moines City R. Co., 135 Iowa 694, 109 Pac. 867. 11 Hudson V. Conklin, 77 Kan. 764, 93 Pac. 585; State ex rel. Glenn v. Stein, 13 Neb. 529, 14 N. W. 481. 12 State ex rel. McMillan v. Sad- ler, 25 Nev. 131, 83 Am. St. Rep. 573, 58 Pac. 284. 13 State Railroad Commission v. People ex rel. Denver & R. G. R. Co., 44 Colo. 345, 22 L. R. A. (N. S.) 810, 98 Pac. 7. As to protection of private inter- ests by quo warranto, see note 22 L. R. A. (N. S.) 810. 1-1 See cases in footnote 8, this section. 15 People ex rel. Lawson v. Stod- dard, 34 Colo. 200, 86 Pac. 251; 936 ch. v.] QUO WARRANTO — DEFENDANTS. §689 are against a body or board, as the several members of the board of trustees of a cemetery association/*' — but not in those cases in which the interests are different, and the evidence to support the respective interests is not tlie same.^''^ In proceedings to decree void the organization of a towTiship^^ or other territorial unit of the government, or the incorporation of a city or town or \dllage;^^ and to enjoin the defendants from acting as officers thereof, and discharging the duties and functions of officers, is proj3- erly brought against the persons named as acting as officers, without joining the township or municipality as defendant; but it has been said that where the munici- pality is made a defendant by name, an omission to join the persons assuming to act as trustees or other admin- istrative officers, does not constitute a defect of parties defendant.-*' state ex rel. Dunlap v. Stewart, 6 Houst. (Del.) 359, 373; State v. Simkins, 77 Iowa 676, 42 N. W. 516; Dunham v. Bright, 85 N. J. L. 391, 90 Atl. 255; Bonynge v. Frank, 89 N. J. L. 237, Ann. Cas. 1918D, 211, 98 Atl. 456; Armstrong v. State ex rel. Fain, 29 Okla. 161, Ann. Cas. 1913A, 565, 116 Pac. 770; State V. Kearn, 17 R. I. 391, 22 Atl. 322; Preshow v. Dee, 6 Utah 360, 23 Pac. 763; State ex rel. Peck v. Riordan, 24 Wis. 484. As to parties defendant in quo warranto, or in proceedings by in- formation in the nature of quo warranto, see Ann. Cas. 1913A, 570; Ann. Cas. 1918D, 216, 228. 16 Bonynge v. Frank, 89 N. J. L.. 239, Ann. Cas. 1918D, 211, 98 Atl. 456. See, also, authorities footnote 8, this section. 17 People ex rel. Lankford v. Long, 32 Colo. 486, 77 Pac. 251. 18 Territory ex rel. State's At- torney V. Armstrong, 6 Dak. 226. 50 N. W. 832. 19 People ex rel. Saunier v. Stratton, 33 Colo. 464. 81 Pac. 245; Frisch v. Ard, 34 Colo. 66, 81 Pac. 247. See, also, authorities cited in footnote 8, this section. Municipality proceded against in its name, admits its legal exis- tence. — People ex rel. Prosecuting Attorney v. South Park, City of, 34 Wash. 162, 101 Am. St. Rep. 998, 75 Pac. 636. See People ex rel. Attorney-General v. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693. :.;o People ex rel. Beltner v. Riverside, City of, 66 Cal. 288, 5 Pac. 350. 937 §689 CODE PLEADING AND PRACTICE. [Pt. Ill, In proceedings to vacate charter corporation once lawfully possessed but which has expired or been for- feited, — as by failure to comply with the requirements of the statute, or for non-user,-' — the corporation is a neces- sary^^ and, some of the cases hold, the only proper party^^ defendant, the officers of such corporation need not be made parties and served with process f^ and the individ- ual members or stockholders thereof are not proper par- ties defendant.^^ Where the charge is the usurpation of corporate functions and franchise by a body not incorpo- rated, the proceedings must be against the individuals guilty of the usurpation,-*' as the only proper parties de- fendant, because if the corporation is made a party by the name under which the acts complained of are committed, its legal existence is admitted ;-" although there is author- 21 People ex rel. Attorney-Gen- eral V. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. G93. Complaint must specifically al- lege existence of corporation. — People ex rel. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693. 22 People V. Montecito Water Co., 97 Cal. 276, 33 Am. St. Rep. 172, 32 Pac. 236; State ex rel. Cald- well V. Lincoln St. R. Co., 80 Neb. 333, 352, 14 L. R. A. (N. S.) 336, 114 N. W. 422, 118 N. W. 326; State ex rel. Tyrrell v. Lincoln Traction Co., 90 Neb. 535, 134 N. W. 278. 23 Armstrong v. State ex rel. Fain, 29 Olua. 161, 116 Pac. 770; State ex rel. Gilbert v. Union In- vestment Co., 7 S. D. 51, 63 N. W. 232. Railroad company transferring right of way after expiration of time in which it could build its road is properly joined as a defen- dant wath the railroad corporation to which right of way transferred. — People ex rel. Golconda North- ern R. Co. V. Toledo, St. L. & N. O. R. Co., 280 111. 495, Ann. Gas. 1918D, 224, 117 N. E. 701. 24 State ex rel. Coleman v. Inner Belt R. Co., 74 Kan. 413, 87 Pac. 696. 25 State ex rel. Leese v. Atchison & N. R. Co., 24 Neb. 143, 8 Am. St. Rep. 164, 38 N. W. 43. 26 People ex rel. Attorney-Gen- eral V. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693; State ex rel. Caldwell v. Lincoln St. R. Co., 80 Neb. 333, 352, 14 L. R. A. (N. S.) 336, 114 N. W. 422, 118 N. W. 326; State ex rel. Tyrrell v. Lincoln Traction Co., 90 Neb. 535, 134 N. W. 278; Arm- strong V. State ex rel. Fain, 29 Okla. 161, Ann. Cas. 1913A, 565. 116 Pac. 770. 27 People ex rel. Attorney-Gen- eral V. Stanford, 77 Cal. 360, 2 L. R. A. 92, ]8 Pac. 85, 19 Pac. 693. See People ex rel. Prosecuting At- torney V. South Park, City of, 34 Wash. 162, 101 Am. St. Rep. 998, 75 Pac. 636. 938 eh. v.] RECEIVERS — SPECIFIC PERFORMANCE. §§690,691 ity to the effect that the proceedings may be against either tlie persons who officially undertake to exercise the powers and functions, or against the organization by the name under which it assumes to act.-^ § 690. Receivers. As receivers stand in the phice of the person or corporation for whom they are appointed and for whom they are acting under appointment in the receivership proceedings, in respect to the liability of such person or corporation,^ such receiver is the proper party defendant in all actions touching all property the subject of the receivership or the management of such property. Thus, a receiver of a railway corporation, operating its railroad, is the proper party defendant in an action against the corporation to recover damages upon a cause of action arising prior to the receivership.^ § 691. Specific performance — Constructive trust. In a suit for specific performance of a contract, or to have declared a constructive or resulting trust in prop- erty, the rule as to parties defendant, requiring all who have an interest in the subject-matter of the controversy, or whose interests may be adversely affected by any judgment that may be pronounced or decree rendered, to be parties defendant, applies. ^ We have already seen that in a suit for the specific performance of a testator's contract to convey lands, the executor is a necessary party ;2 and that when the suit is against the heirs, de- manding damages in the alternative, the executor or administrator is a necessary defendant.^ On a suit for specific performance of a contract whereby the defen- ds Gardner v. State ex rel. Busch, u International & G. N. R. Co. v. 77 Kan. 742, 95 Pac. 588; Deng v. Ormond, 57 Tex. Civ. App. 79, 121 Lamb, 77 Kan. 863, 95 Pac. 592. s. W. 899. 1 International & G. N. R. Co. v. ^ g^^_ ^^^^ gg QZ7-GZ9. Ormond, 57 Tex. Civ. App. 79, 121 S. W. 899; McNulta v. Lochridge. '^ See, ante, § 657. footnote 8. 141 U. S. 327, 35 L. Ed. 79G, 12 3 Id., footnote 9. Sup. Ct. Rep. 11. 939 § 691 CODE PLEADING AND PRACTICE. [Ft. Ill, dant agreed not to sell or permit the selling at his place of business of any goods except those of the plaintiff, a rival of the plaintiff, whose goods it is sought to prohibit the defendant from selling, is not a necessary or a proper I^arty defendant.'* On a suit seeking the specific perform- ance of a contract to transfer shares of stock of a cor- poration, where it is not alleged in the complaint (1) that the defendant is insolvent, or (2) that he is about to dispose of the stock, no cause of action is stated against the corporation, and it is not a necessary party defen- dant.'^ In an action upon a joint and several contract executed by ten sigiiers, upon which contract six of the signers had paid their obligations to the plaintiff, a com- plaint is not demurrable upon the ground that there is a non-joinder of parties where suit is brought only against the defendants who are in default.® A constructive or resultant trust sought to be estab- lished and enforced, we have already seen that where the subject-matter is shares of stock of a corporation, and it appears that a person not a party to the action has or claims an interest in the shares of stock, he is a necessary party defendant, and that the court's failure to order him l)rought in is error. "^ Where it is sought to have the grantor of land declared to have been a trustee for the plaintiff, and to have his deed set aside, such grantor is not an indispensable party defendant to the action.'^ Under a complaint in a suit in equity praying specific per- formance, as against one of the defendants, or a contract to convey a mine and to pay one-eighth of the net price thereof, alleging a sale and conveyance to the defendant corporation, and as against the other defendants, to have it adjudged that their ownership of the shares of stock 4 Buttrick Pub. Co. v. Fisher, 203 6 Champlin Bros. v. Sperling, 84 Mass. 122, 133 Am. St. Rep. 283, 89 Neb. 633, 121 N. W. 976, 977. N. E. 189. 7 See, ante, § 648, footnotes 9 5 Lucas V. Milliken, 139 Fed. 816. and 10. s Mackay v. Gobel, 117 Fed. 873, 910 ell. V.J STRIKING OUT DEFENDANTS. § 692 issued to them was subject to a constructive trust in favor of the plaintiff, where it appears that all such stock is involved in the transaction, and that the stock held by the alleged constructive trustees is charged wdth the claim of the plaintiff and with notice of such claim, the cor- poration and all its stockholders are necessary party defendants.^ § 692. Striking out defendants — In general. The common-law rule that a plaintiff, having sued several defendants in an action ex contractu, must, as a general rule, recover against all, or be nonsuited at the trial, has been changed by the procedural codes. ^ The trial court is invested with a judicial discretion to order names of plain- tiffs or of defendants stricken from the complaint, and in the absence of a showing of an abuse of discretion, the ruling will not be disturbed.- Thus, where an action is brought in the name of two persons as copartners,"' and it is sho"svn that they are not partners, and that but one of them is the real party in interest, the court may allow the complaint to be amended by striking out the name of the other plaintiff'.^ AVliere the plaintiff impi-operly joins as parties defendant persons having no interest in the subject-matter of the controversy, and who will not be ad- versely affected by any judgment that may be entered, on the discovery of that fact, the names of such persons may be ordered stricken out,^even though the other defendants, 9 Kinard v. Jordan, 10 Cal. App. 3 As to copartners, see, ante, 219, 101 Pac. 696. § 652. 1 See Kerr's Cyc. Cal. Code Civ. ^ HamiU v. Ashley, 11 Colo. 180, Proc, § 473; Morrissey v. Schind- ^^ p^^ 5^3 ; Wiesner v. Young. 50 ler.l8Neb.672,76N.W.476. Minn. 21. 52 Pac. 390. !• Tonney v. Pierce, 49 Cal. 306; Hudson V. Feige. 58 Mich. 148, 24 ^ Fisk v. Henarie, 14 Ore. 29. 13 N. W. 863; Neher v. Armijo, 9 Pac. 193; Liggett v. Ladd, 23 Ore. N. M. 325, 54 Pac. 236; York v. 26, 31 Pac. 26; Brown v. Packard. Nash. 42 Ore. 321, 71 Pac. 59; 4 Utah 292, 9 Pac. 573, 11 Pac. Dean v. Oregon R. & Nav. Co., 38 512; Ohvell v. Skobis, 126 Wis. Wash. 565, 80 Pac. 842. 'JOS, 105 N. W. 777. 941 §§ 693, 694 CODE PLEADING AND PRACTICE. [Pt. Ill, in their answer, may liave raised a plea in abatement for misjoinder of parties defendant.^ But a failure to amend the complaint by striking out of the names of the persons having no interest in the subject-matter of the con- troversy as defendants, is not prejudicial error,^ because, under the procedural codes, the plaintiff may have judg- ment against one, or any, or all of the defendants, as the proof warrants.^ ^ 693, Persons who may not be dismissed. The grounds for omitting or dispensing with parties to a suit has already been sufficiently discussed;^ and we have already seen that in those cases in which there is virtual representation,- especially where the parties are numer- ous and it is difficult to bring them all before the court,=^ they may be omitted. But in all those cases in which a party sued is bound on the obligation,-^ or is a necessary party to enable the court to fully determine the con- troversy before it,^ he can not be dismissed ; the plaintiff has a right that he remain in court until his case is tried.^ § 694. Substitution of parties — In general. The sub- stitution of parties in an action is to be distinguished from an amendment of the pleadings by striking out the names of parties plaintiffs or defendants,^ or by bringing cMorrissey V. Schindler, ISNeb. ^ See, ante, §646; Gillespie v. 672 26 N W 476 Gouly, 152 Cal. 643, 93 Pac. 856. As to misjoinder generally, see, Party without interest improp- „ poA eiiy joined as plaintiff snoula be ante, § 680. ■' .■' ^ ^, .■ ^ „. ^ 1 onn dismissed from the action, and 7 Belser v. Allman, 134 Cal. 399. .^^^^^^^ rendered in favor of the 66 Pac. 492. remaining plaintiff. — Gillespie v. 8 See Morrissey v. Schindler, 18 Qouiy^ 152 Cal. 643, 93 Pac. 856. Neb. 672; Fisk v. Henarie, 14 Ore. g^^' Kerr's Cyc. Cal. Code Civ. 29, 13 Pac. 193. Proc, § 578. See Kerr's Cyc. Cal. Code Civ. .-, See, ante, §§637-639; Rowe v. Proc, § 578. Simmons, 113 Cal. 688, 45 Pac. 983. 1 See, ante, § 640. • c See Hester v. Brennan, 37 Cal. 2 See, ante, §§ 656, 684. 385. 3 See, ante, § 644. 1 See, ante, §§ 692, 693. 942 t'^'- ^'-J SUBSTITUTION OF DEFENDANTS. § G!)5 in new parties- to the action.^ Amendments are made hv the plaintiff, on leave of the court ; substitution of pai-ties is by order of the court.^ The California procedural code provides that a defendant, against whom an action is p(3nding upon a contract, or for specific personal prop- erty, may, at any time before answer, upon affidavit tliat a person not a party to the action makes against him, and without any collusion with him, a demand upon such con- tract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him Trom liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as tlie court may direct; and the court may, in its discretion, make tlie order.^ The order of substitution may be made and the action of interpleader may be maintained, and the appli- cant or defendant be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another.^ § 695. Persons entitled to be substituted. Among the persons entitled to be substituted in an action under the provisions of the California procedural code as set out in the preceding section, and the further pro- vision as to amendments,^ are: Assignees;- distributees of the estate of a decedent;-^ grantees of land which is the subject-matter of the controversy;"* transferee of cause of action under the code provision^ may be, but this is a -'See, ante, §§647-650. 2 Loughborough v. McNevin. 74 ••■. Kittle V. Bellegarde, 86 Cal. Cal. 250, 257, 5 Am. St. Rep. 435, 556, 563, 25 Pac. 55. 14 Pac. 369. 15 Pac. 773. ^ ^^- :' Cockrill v. Clyma, 98 Cal. 123, J"' Kerr's Cyc. Cal. Code Civ. 32 Pac. 888. Proc, § 386. 4 Plummer v. Brown, 6 1 Cal. 429, •■■ Id. 1 Pac. 703. 1 See Kerr's Cyc. Cal. Code Civ. r. See Kerr's Cyc. Cal. Code Civ. Proc, § 473. Proc, § 385. 943 § 696 CODE PLEADING AND PRACTICE. [Pt. Ill, permissive riglit by the grace of the court, not by lejal demand,*' — thus, an attorney taking an assignment to him- self after recovery of a judgment for his client, on the suggestion of the death of his client, may be substituted in his place." A trustee under a mortgage securing the bonds of a water company, may be substituted for the bondholders who have brought a suit to enjoin the en- forcement of a city ordinance on the ground that the price of water fixed thereby is so low as to amount to a taking of property without compensation.^ § 696. Grounds for substitution. The grounds for asking a substitution must be substantial for the protection of an interest and the furtherance of justice. Thus, the court will not permit the substitution of a party as plaintiif on the ground that he was the real party in interest at the time of the commencement of the action ;^ or permit the assignee of the successful party on pur- chase after judgment, to be substituted for such party on appeal, where it appears that the same attorney repre- sented the unsuccessful party and is the attorney rep- resenting the assignee moving for a substitution.^ A corporation which has forfeited its franchise for non- pajanent of its license-tax, and thereafter commenced an action in its corporate name, is entitled to have the names of its directors, as trustees, substituted for its own name as party plaintiff; and whenever in the course of the 6 Fav V. Steubenrauch, 138 Cal. —Hester v. Brennan, 37 Cal. 386, 388. 656, 72 Pac. 156. See Hestres v. Brennan, 37 Cal. 386, 388; Cam- arillo V. Fenlon, 49 Cal. 202; Miller V. Luco, 80 Cal. 257, 264, 22 Pac. 7 Potts V. Paxton, 171 Cal. 493, 153 Pac. 957. 8 Benson v. San Diego, City of, 100 Fed. 158. 195; Emerson v. McWhlrter, 128 i Dubbus v. Goax, 51 Cal. 153; Cal. 268, 60 Pac. 774. Hallett v. Larcom, 5 Idaho 492, 51 Transferee of cause of ejectment Pac. 108. may continue action in original 2 Emerson v. McWbirter, 128 plaintiff's name, or be substituted. Cal. 268, 60 Pac. 774. 944 eh. v.] APPLICATION FOR SUBSTITUTION. § 697 action the facts are brought to the attention of the court, either by the pleadings and proof of the defendant, or by the suggestion of the plaintiff, it is the duty of the trial court to order the substitution, and to fail to do so will be error on the part of the court.^ (^ 697, . Application for substitution : Proceeding THEREON. In tliose cases in which there has been a trans^ fer of the property or interest by the plaintiff pendente lite, the substitution of the person acquiring the interest, under the provisions of the statute, is a matter that rests solely with the plaintiff and the person to whom the trans- fer was made. The change of parties can be set in motion only by the plaintiff or his transferee, and the plaintiff is not authorized to act in opposition to the rights of the transferee, who may continue the action in the name of the plaintiff or be substituted in his place as he may desire;^ the defendant can not have such substitution made.2 But while the defendant can not move the sub- stitution of the transferee, he may raise the question by supplemental answer.^ On an application for the sub- stitution of parties, the person whom it is desired to have substituted is entitled to an opportunity to question the right of the person applying for the substitution to make such application ;* hence the application must always be made upon notice and an opportunity to be heard,^ be- cause in any proceedings of a judicial character, one 8 Kehrlein-Swinerton Constr. Co. 166, 177, 46 L. R. A. 839, 51 N. E. V Ropken, 30 Cal. App. 11, 156 997; Packard v. Wood, 17 Abb. Pr. pg^^ 9Y2 (N- Y-^ ^1^' ^^^' Smith v. Har- ',' ^ , . ^ , ^., ^„ rington, 3 Wyo. 503, 27 Pac. 803; 1 Knobloch V. Associated Oil Co.. ^^ ^ p.^^^ ^^ ^^^ ^^^ ^^3 170 Cal. 144, 148 Pac. 938. 3 j.^^^^^^^ ^ Brennan. 37 Cal. 386. See, also, cases in next footnote. 4 Higgins v. Kay, 168 Cal. 468, 2 Hestres v. Brennan, 37 Cal. 143 pac. 710. See Altpeter v. Pos- 386, 388; Higgins v. Kay, 168 Cal. tal Telegraph-Cable Co., 26 Cal. 468, 143 Pac. 710; Chisholm v. App. 705, 148 Pac. 241. Clitherall, 12 Minn. 375, 379; n Higgins v. Kay, 168 Cal. 468, Hirshfpld v. Fitzgerald, 157 N. Y. 143 Pac. 710. I Code PI. and Pr.— CO 945 § 698 CODE PLEADING AND PRACTICE. [Pt. Ill, whose rights or interests may be alTected by the action therein is entitled to a notice and an opportunity to be heard.^ In an action against a bank to recover a sum of money, to the right to receive which adverse claims are made, on payment by the bank of the money into court under an attachment levied by the sheriff in the action, the sheriff may be substituted as defendant in the place of the bank, notwithstanding the bank has filed an answer in the action, where the notice of motion for substitution was serv^ed before the answer was filed J But where there is no joint interest or privity of interest, another defen- dant can not be substituted for the person originally sued.^ Thus, in a case where there was a California cor- poration and a New York corporation having identically the same name, and the plaintiff in the title to his cause gave the common name, and in the body of the complaint described the defendant as a corporation organized under the laws of New York, he can not thereafter amend his complaint by substituting, in the body thereof, ''Cali- fornia" for ''New York," thereby substituting a new defendant.^ Where an order is made in the Supreme Court substituting a party on account of the death of the original party to the action, correct practice requires a like order to be entered in the trial court, or other lower court from which the appeal was taken, on proper showing.^" § 698. Mode of substitution of pahties. The method by which a substitution of parties is made is governed by the provisions of the statute and the prac- tice in the particular jurisdiction ; but in no jurisdiction can a new plaintiff and a new cause of action be substi- tuted under the guise of an amendment of the complaint.^ ^ Id. 9 Id. 7 Cassidy v. Norton, 25 Cal. App. lo Reay v. Heazelton, 128 Cal. 433, 143 Pac. 1057. 335, 60 Pac. 977. s Altpeter v. Postal Telegraph- i Hallett v. Larcom, 5 Idaho 492, Cable Co., 26 App. Dec. 705, 148 51 Pac. 108. Pac. 241. 946 eh. v.] PROCEEDING AFTER SUBSTITUTION. § 699 A substitution of parties may be made by an entry in the minutes of the court,^ and a personal representative may be substituted by ex parte motion.^ Other persons may be substituted, under statute and local practice : By motion ;^ or by motion supported by affidavit;^ or by motion and supplementary pleading.^ (^ 699. Pkoceedings after substitution. As a gen- eral rule, the substituted party takes up the prosecution or defense at the point where the original party left it, assuming the burden as well as receiving the benefits.^ In California, we have already seen, a person acquiring an interest in the subject-matter of the litigation pendente lite, may prosecute or defend the action in the name of the original party or may be substituted in his place;- where he elects the former alternative, the court may give judg- ment according to the conditions existing at the time the case was begim;^ but Avhere one is substituted on the ground of an assignment of the subject-matter of the cause of action, the assignment must be alleged in a sup- plemental complaint, and, where denied, must be proved.-* 2 Kittle V. Bellegrade, 86 Cal. 590, 109 N. W. 452; Finnan v. Bate- 556, 563, 25 Pac. 55; Cockrill v. man, 2 Utah 268. Clyman, 98 Cal. 123, 32 Pac. 888. 5 Smith v. Harrington, 3 Wyo. Order should be entered on min- 503, 27 Pac. 803; Smith v. Chey- utes of the court as a distinct or- enne, City of, 3 Wyo. 513, 27 Pac. der made before judgment, but the §07. fact that it is prefixed to the judg- ^ Powell v. Nolan, 27 Wash. 318, ment, recorded in the judgment- g^ p^^ rj-jg book, and made a part of the judg- ' „ ^ / „ ^ .^ „ ,, , 1 Fannon v. Robmson, 10 Iowa ment-roU does no affect its val d- ^ ^^ ^^^^^ ^^^ ity.-Cocknll V. Clyma, 98 Cal. 123, ^ ^' ^ ^^^_ ^^^^^ ^ ^^^^^^^ ^^^ Iowa 105, 107, 119 Ann. St. Rep. 549, 105 N. W. 590, 109 N. W. 542. 32 Pac. 8 Ford V. Bushard, 116 Cal. 273, 276 48 Pac 119 4'Lindsey V. Lindsey, 28 Ga. 169; - See. ante. § 697, footnote 1. Chicago Legal News Co. v. Browne, 3 Knobloch v. Associated Oil Co., 103 111. 317; Ferry v. Page, 8 Iowa 170 Cal. 144, 148 Pac. 938. 455; Crary v. Kurtz, 132 Iowa 105, 4 Ford v. Bushard, 116 Cal. 273, 119 Am. St. Rep. 549, 105 N. W. 48 Pac. 119. 947 §§ 700, 701 CODE PLEADING AND PRACTICE. [Ft. Til, § 700. Tenants in common. The rules of law as to joining as defendants tenants in common are the same as govern in the case of joint tenants, already discussed.^ And we have already seen- that the children, after the death of their mother, being tenants in common with their father of the community property, are necessary parties defendant to a suit to foreclose a mortgage thereon executed by the father to secure a comjnunity debt.^ § 701. Tort actions. We have already discussed to a limited extent the parties defendant in tort actions in so I far as relates to frauds,^ and the necessity of joining the J husband as a defendant in an action for the tort of the wife.- We have also seen that, according to the general rule of law, a person injured by the negligent or wrongful act of two or more persons, has a right of action against each and all of the joint tort-feasors contributing to his injury, or may sue any one of them, at his election f and it matters not that some of the tort-feasors are natural persons and some of them are artificial persons, or cor- porations, where the concurrent negligent or wilful act of each contributed to the injury complained of,^ because the liability of corporations for the negligent or wrongful acts of its servants or agents, whereby a third person suffers injuries, depends upon the same principles and rules of law as the liability of a master for such acts of his servants, where such acts of the corporation servants or agents are in the course of their employment, express or implied,^ although in the particular act the authority of J. See, ante, §573. 5 Id.; Bissell v. Michigan So. & "i: See, ante, § 638, footnote 2 and n. J. R. Co., 22 N. Y. 258; New text. York & N. H. R. Co. v. Schuyler, 3 Johnson V. San Francisco Sav. 3^ ^ ^ 3^^ 49. Philadelphia & Union, 63 Cal. 554._ Reading R. Co. v. Derby, 55 U. S. (14 How.) 486, 14 L. Ed. 502; Phil- 1 See. ante, § 659. 2 See, ante. § 678, 3 See ante, § 674 adelphia, W. & B. R. Co. v. Quig- 4Brokaw v. New Jersey R. & ^eJ'' ^2 U. S. (21 How.) 202, 16 Transp. Co., 32 N. J. L. (3 Vr.) L- Ed. 73; Roe v. Birkenhead, L. & 328, 90 Am. Dec. G59. C. R. Co., 7 Ex. 40; Bayley v. Man- 948 ,-li. v.] TORT ACTIONS — TRESPASS. §702 the servant or agent was abused;* but if the act of the agent or servant was not within the line of his duty, unk^ss especially authorized, the corporation will not be liable." Thus, it is not within the line of the duty of the manager of a bank to arrest and prosecute criminally, and for such an act on the part of the manager, the bank corporation will not be liable in damages for malicious prosecution.* Where the offending servant is the joint servant or agent or two or more corporations they will all be liable;^ and where railroad corporations are united in business, they may be united as defendants in an action for a tort growing out of the negligent conducting of that business. ^^^ <§ 702. Trespass. The general rule of law is that a trespass committed by several persons acting together creates a several liability ; but if the trespass is joint, all the trespassers may be joined.^ A justice of the peace Chester, S. & L. R. Co., L. R. 8 C. P. 148, 25 Eng. Rul. Cas. 115. See, also, notes 25 Eng. Rul. Cas. 138-144.