Judgment for or against one or more of several parties: See post, secs. 414, 578, 579. § 384. Tenants in common, etc., may sever in bringing or defending actions. 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. En. March 11, 1872. Cal.Rep. Cit. 61, 262; 80, 630; 91, 598; 110, 425; 136, 635; 137, 526. Co-claimants, united as plaintiffs: Sec. 381. § 385. Action, when not to abate by death, marriage, or other disability. Proceedings in such case. An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding. En. March 11, 1872. Am'd. 1873-4, 295. Cal.Rep.Cit. 46, 576; 64, 82; 64, 430; 66, 445; 68, 420; 80, 264; 87, 27; 111, 32; 112, 643; 124, 142; 124, 143; 132, 456; 133, 256; Prac. Act, sec. 16. In Cal.Rep.Cit. 5, 282; 29, 372; 29, 377; 30, 475; 30, 476; 31, 336; 32, 119; 49, 208; 50, 659; 64, 596. If a party die, judgment against his representative must be that he pay in due course of administration: Post, sec. 1504. Necessity for claiming against estate of deceased: Post, secs. 1493, 1502. Death after verdict or decision and before judgment: See post, sec. 669. Survival of actions: See post, secs. 1582 et seq. § 386. Another person may be substituted for the defendant. A defendant against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon such contract, 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 from 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 the court may direct; and the court may, in its discretion, make the order. And whenever conflicting 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 compel them to interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be maintained, and the applicant or plaintiff 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. En. March 11, 1872. Am'd. 1881, 19. Cal.Rep.Cit. 59, 273; 65, 160; 66, 42; 69, 153; 69, 155; 72, 234; 72, 516; 73, 303; 74, 257; 75, 543; 111, 376; 111, 393; 123, 110; 127, 518; 131, 325; 133, 643; 137, 70. § 387. Intervention, when it takes place and how made. Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by 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 to it as if it were an original complaint. En. March 11, 1872. Am'd. 1873-4, 296. 53, 744; 57, 77; Cal.Rep.Cit. 52, 511; 58, 355; 60, 125; 61, 556; 63, 5: 66, 73; 93, 319; 97, 455; 101, 331; 101, 332; 104, 6; 104, 7; 104, 8; 108, 222; 111, 392; 112, 651; 114, 373; 121, 261; 123, 255; 126, 318; 128, 635; 130, 44; 131, 92; 132, 290; 137, 477. Eminent domain-intervention in: Post, sec. 1246. § 388. Associates may be sued by name of association. When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon their joint liability. En. March 11, 1872. Cal Rep.Cit. 55, 367; 67, 146; 69, 621; 73, 391; 73, 393; 115, 508; 123, 647; 136, 302. 67, 147; 67, 569; 69, 458; 94, 299; 94, 300; 94, 302; Sec. 414. Business associates-common name: Partners under fictitious name must file certificate: See Civ. Code, secs. 2466 et seq. § 389. Court, when to decide controversy or to order other parties to be brought in. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and summons thereon to be issued and served. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in, by the proper amendment. En. March 11, 1872. Am'd. 1897, 9. Cal.Rep.Cit. 64, 476; 65, 455; 69, 621; 74, 443; 76, 542; 95, 256; 112, 651; 115, 420; 116, 447; 116, 453; 117, 550; 126, 318; 130, 521; 136, 536: 136, 639; 137, 658. En. April 29, 1851. Prac. Act, sec. 17. 5, 282; 9, 97; 22, 205; 27, 333; § 390. Actions against fire departments. Causes of action upon contract, or for damages arising out of, or pertaining or incident to, the official administration of the fire departments created by acts of the legislature of this state, shall be brought directly by and against the municipality by its corporate name wherein the damage was sustained. And the said boards of fire commissioners shall not be sued as such, except to compel or restrain the performance of acts proper to be compelled or restrained under and not within the discretion intended to be conferred by this act. En. Stats. 1885, 92. § 392. 393. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. Certain actions to be tried where the subject or some part Other actions, where the cause or some part thereof arose. 394. 397. 398. 399. $400. Place of trial may be changed in certain cases. § 392. Certain actions to be tried where the subject or some part thereof is situated. Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof is situated, subject to the power of the court to change the place of trial, as provided in this code: 1. For the recovery 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. 2. For partition of real property. 3. For the foreclosure of all liens and mortgages on real property. Where the real property is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action; provided, that in the case mentioned in this subdivision, if the plaintiff prays in his complaint for an injunction pending the action, or applies pending the action, for an injunction, the proper county for the trial shall be the county in which the defendant resides or a majority of the defendants reside at the commencement of the action. En. March 11, 1872. Am'd. 1875-6, 90; 1889, 352. Cal.Rep.Cit. 51, 567; 54, 187; 56, 175; 60, 410; 61, 78; 63, 500; 73, 184; 86, 97; 86, 105; 86, 200; 88, 575; 88, 576; 88, 577; 101, 461; 102, 335; 105, 141; 106, 58; 108, 222; 113, 610; 115, 250; 129, 278; 133, 59; 133, 60; 136, 636; 138, 70; 138, 581. Subd. 166, 344; 77, 131; 79, 606; 80, 309; 83, 184; 100, 16; 102, 335; 129, 278; 134, 587. Subd. 3-125, 314. Prac. Act, sec. 18. En. April 29, 1851. Am'd. 1861, 494. Cal.Rep.Cit. 15, 221; 16, 433; 26, 187. Riot, actions for damages caused by, must be tried in the county in which the property injured is situated: Pol. Code, sec. 4453. § 393. Other actions, where the cause or some part thereof arose. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed by statute; except that, when it is imposed for an offense committed on a lake, river, or other stream of water, 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; 2. Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office; or against a person who, by his command or in |
