This is the equity rule in respect to parties to actions. It was a general rule at common law, to which, however, there were some exceptions, that in actions ex contractu, the action must be brought in the name of the person in whom the legal interest in the contract is vested, and in action for torts, the action must be brought in the name of the person whose legal right has been affected and who was legally interested in the property at the time the injury thereto was committed.43 The general rule as to parties in suits in equity was, that all persons concerned in the demand or who may be affected by the relief prayed for, ought to be parties, if within the jurisdiction of the court.44 All causes of actions, except those for personal torts, such as assault, libel and the like, which die with the person, are, under the code system, assignable, and the assignee of such assignable causes of action can sue thereon in his own name, subject to any set off or other defense existing at the time of notice of such assignment. A negotiable promissory note or bill of exchange, however, transferred in good faith and upon good consideration therefor, before maturity, is not, in a suit thereon by such transferee, subject to such set off or other defense. If the transfer of a negotiable promissory note or bill of exchange be made after maturity, then the transferee takes subject to such set off or other defense. When cross demands have existed between persons under such circumstances that if one had brought an action against the other, a counter claim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof, by the assignment or death of the other.45 This section was probably intended to meet the case of a counter claim alleged in the answer of a defendant and to which there was a cross demand and there was no opportunity to plead it.46 43. 1 Chitty Pl. 268. 44. Lube Eq. 36. 45. Code of Civil Procedure, Sec. 440. 46. Hart v. Cooper, 47 Cal. 77. Many of the provisons under the code system respecting parties to actions, were intended to prevent delays in the administration of justice, and to prevent the sometimes denial of justice by rules in common law actions respecting the parties to actions. Under the code system, the court should be liberal in permitting amendments to pleadings by adding or striking out the name of any party if in furtherance of justice.47 There are cases in which persons may be proper parties to an action, but who are not necessary parties thereto. When a mortgagor of real estate dies after making the mortgage and there is an administrator of his estate such administrator is the only necessary party defendant in an action to foreclose such mortgage. 48 The heirs of the decedent, however, would have been proper parties to such an action. If there were a homestead on mortgaged property selected and recorded prior to the death of a decedent, the surviving wife of such decedent would be a necessary party defendant in the foreclosure action, and it would have been necessary to have presented for allowance and approval, the mortgage and debt as a claim against the estate of the decedent.49 A person against whom an action is pending upon a contract, or for specific personal property, before answer, upon such affidavit, as is prescribed in section 386 of the Code of Civil Procedure, may, when 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, on notice to such person and to the adverse party, apply to the court, for an order to substitute such person in his place, and to 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 on 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 in 47. Code of Civil Procedure, Sec. 473. 48. Bayly v. Muehe, 65 Cal. 345; Collins v. Scott, 100 Cal. 452. terplead, and litigate their several claims among themselves, and the order of substitution may be made, and the action of interpleader may be maintained, and the application of the plaintiff to be discharged from liability to all or any of the conflicting claimants may be granted, although the title or claims of the conflicting claimants have not a common origin or are not identical, but are adverse to and independent of one another.50 Before that amendment it had been held by the Supreme Court in Pfister v. Wade, 56 Cal. 46, that an action to compel conflicting claimants to interplead could not be maintained, when the claims of the conflicting claimants were not identical in amount or did not relate to the same debt or duty, or if they arose out of separate and independent contracts. Any person who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both may, by permission of the court before trial, intervene in an action or proceeding.51 Such intervention is made by a complaint setting forth the ground on which the intervention rests, a copy of which is to be served on the parties who have not appeared in the action, and upon the attorneys of the parties who have appeared, and who may answer or demur to it as if it were an original complaint.52 The right to intervene under the provision of that section before trial, is not limited to any particular kind or class of actions.53 An intervention cannot be allowed after final judgment,54 and it ought not to be allowed when the action has been long pending, and the application to intervene is made just as the plaintiff is taking judgment.55 When two or more persons are associated in business and transact such business under a common name, the associates can be sued by such common name, and the summons in the action may be served on one or more of such associates and the judg 50. Code of Civil Procedure, Sec. 386 as amended in 1881. 51. Code of Civil Procedure, Sec. 387. 52. Code of Civil Procedure, Sec. 387. 53. Robinson v. Crescent City, etc., Co. 93 Cal. 316. 55. Hocker v. Kelly, 14 Cal. 164. ment in the action will bind the joint property of all such associates.56 This section does not authorize an action to be brought by such associates in such common name." 57 It was held in King v. Randlett, 33 Cal. 321, that a statute authorizing an action against associates transacting business under a common name, by such common name, as defendant, was in derogation of the common law, and that it must be strictly construed. That case was decided in 1867, and the rule now is, that the former rule, that statutes in derogation of the common law are to be strictly construed, has no application to the Code of Civil Procedure.58 The court may determine any controversy between the 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 order them to be brought in.59 One tenant in common is entitled to an injunction against a wrongdoer to prevent an interference with the right of such tenant in common to flowing water, and the court is not required to bring in his co-tenants as parties to the action.60 56. Code of Civil Procedure, Sec. 388. 58. Code of Civil Procedure, Sec. 4. 59. Code of Civil Procedure, Sec. 389. 60. Lytle Creek Water Co. v. Perdew, 65 Cal. 447. CHAPTER VII. OF THE PLACE OF THE COMMENCEMENT AND OF THE TRIAL OF ACTIONS. An action for the recovery of the possession of quieting the title to, or for the enforcement of liens on real estate must be commenced in the county in which such real estate, or some part thereof, is situated, otherwise the judgment rendered in the action unless it be one of dismissal of the action, will be void.1 All other actions, the subject matter of which is within the jurisdiction of a Superior Court, except perhaps the actions mentioned in section 394 of the Code of Civil Procedure relating to actions against a city or county, and an action for a penalty brought under section 393 of that code, may be commenced in any Superior Court of the state, subject to the right of either party to the action, when entitled to such transfer, to have the action transferred to another county for trial. Actions against a municipal corporation for damages for injuries to real or personal property within its corporate limits, done or caused by mobs or riots, must be tried in the county in which the property injured is situated; and must be commenced within one year after the act complained of is committed.2 The provisions of the Code of Civil Procedure, which were the law when the constitution of California of 1879 was adopted, were, that 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, namely actions 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 and for parti 1. California Constitution, Art VI, Sec. 5, Urton v. Woolsey, 87 Cal. 38; Fritts v. Camp, 94 Cal. 398. 2. Political Code, Secs. 4453, 4454. |