2.

An action by a minority stockholder of a corporation which had forfeited its charter for failure to pay its license tax to enjoin the directors from carrying on the business and to compel a winding up of the affairs and a distribution of the proceeds is not one for the determination of an interest in real property under section 5 of article VI of the constitution, requiring it to be tried in the county where the property is located.-Rossi v. Caire, 174 Cal. 74, 161 Pac. 1161.

3. An action to rescind a contract for the purchase and sale of real property on the ground of fraud, and to recover the money paid thereunder, is not an action for the determination of some right or interest in real estate within the meaning of section 392 of the Code of Civil Procedure, and is properly transferred to the county of the residence of the defendant upon motion therefor.-Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476.

4. To constitute a real action it must appear that title or interest in real property is involved.-Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476.

1.

Construction—Amendment of 1911.The amendment provides that the action may be tried, either in the county where the defendant resides at the time it is begun or in the county where the injury occurred. No preference is given to one over the other. Either county is therefore the proper county. The superior court can not change the place of trial except in the cases and for the causes provided by express law. -Gridley v. Fellows, 166 Cal. 765, 138 Pac. 355.

2. While the provision of the amendment to this section applies only to specified classes of cases, it applies alike in every

part of the state to all actions embraced in the classes described. It can not therefore be a special law forbidden by the constitution if it is addressed to a class or classes based on some natural, intrinsic, or constitutional distinction or difference, reasonable and substantial, between these actions and others not included and sufficient in some reasonable degree to account for or justify the making of the different rule. -Gridley v. Fellows, 166 Cal. 765, 138 Pac. 355.

3. This section as amended in 1911 has no application to actions against non-residents of the state. The change in the law was designed to enlarge the rights of plaintiffs by giving them a choice of two counties, where before the defendant had the right to a trial in the county of his residence.-Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239. 4. Under any construction that may be given to section 395, the place of trial may still be changed when the "convenience of witnesses and the ends of justice" would be promoted by the change.-Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239.

5.

-Association and individuals composing it sued.-Where plaintiff sues associates under their common name but also makes the individual members parties, the individual defendants are entitled to have the place of trial changed to the county of their residence.-Nelson v. East Side Grocery Co., 26 Cal. App. 344, 146 Pac. 1055. 6.

-Corporation governed by same rules as individuals.-A corporation, like an individual, has a legal residence somewhere, and under this section a private corporation must be held to reside at the place "where its principal office or place of business is established."-Gallup v. Sacramento & San Joaquin Drainage Dist., 171 Cal. 71, 151 Pac. 1142.

7. Amendment of 1911 constitutional.— The amendment of 1911 to section 395 of the Code of Civil Procedure, changing the previous requirement that certain kinds of personal actions must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, so as to authorize actions for injury to person or property, or for death from wrongful act, or negligence, to be tried either in the county where the injury occurred or in the county in which the defendants, or some of them, reside at the commencement of the action, is a valid exercise V. Diamond of legislative power.-Rains Match Co., 171 Cal. 326, 153 Pac. 239.

8. Action to cancel contract to purchase land. Where an action for the cancellation of a contract to purchase land seeks, as against one of the defendants, simply a money judgment for misrepresentations, he is entitled to have the place of trial changed to the county of his residence, notwithstanding the title to real estate is involved. -Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476.

9.

Action for injuries to person.-Under this clause the proper place for the trial

of an action for injuries to person is either the county where the injury occurred or that in which the defendant resides.-Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239.

10. Where an alien sustains personal injuries on a vessel owned by a corporation of a foreign country while at a wharf within this state, a state court has jurisdiction of an action to recover for such injury.Faras v. Lower Cal. Development Co., 27 Cal. App. 688, 151 Pac. 35.

11. Uniting real and personal action.—A plaintiff can not deprive a defendant of his right to a trial of a personal action in the county of his residence, by uniting in his complaint a cause of action for the recovery of or the determination of an interest in real property.-Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476.

12. When a real and personal action are joined, the case may be transferred to the residence of the defendant.-Terry v. Rivergarden Farms Co., 29 Cal. App. 59, 154 Pac. 476.

§ 396.

1.

Affidavit of merits-Who may make. An affidavit of merits may be made by any person on behalf of the defendant who is sufficiently familiar with the facts in the case to make it. An affidavit of merits made by the defendant's wife is a compliance with the statute.--Gardner v. Steadman, 31 Cal. App. 447, 160 Pac. 834.

2. -Filing of.-The filing of a new affidavit of merits by another affiant is a sufficient compliance with an order of the court permitting an amended affidavit to be filed, and where this corrects errors or mistakes of the original and is in itself sufficient, there is no error in granting the motion for a change of the place of trial of the action. -Gardner v. Steadman, 31 Cal. App. 447, 160 Pac. 834.

9. Order of transfer necessary. 10. Transfer to another county not necessary, when.

1. As to construction of section.-This section is to be construed in connection with subdivision 5 of section 170.-Sacramento & San Joaquin Drainage Dist. V. Rector, 172 Cal. 385, 156 Pac. 506.

2. As to power of court to change.-The superior court can not change the place of trial except in the cases and for the causes provided for by law, and the only authority is that given by this section.-Gridley v. Fellows, 166 Cal. 765, 138 Pac. 355.

3. Convenience of witnesses-Discretion of court.-Motions for a change of venue upon the ground of convenience of witnesses are addressed to the discretion of the court, and rulings thereon will not be reversed un

less there has been a clear abuse of that discretion. Tait v. Midway Field Oil Co., 28 Cal. App. 107, 151 Pac. 378.

4. A motion for a change of venue, grounded upon the convenience of witnesses, rests in the discretion of the trial court, the exercise of which will not be disturbed in the absence of a showing of its abuse.Blossom v. Waller, 30 Cal. App. 439, 158 Pac. 509.

5. A mere preponderance in the number of the witnesses claimed to be necessary to the moving party does not entirely control the exercise of the court's discretion. -Blossom v. Waller, 30 Cal. App. 439, 158 Pac. 509.

6.

Stipulations admitting as true certain facts stated in the pleadings may be received in opposition to a motion for a change of venue made upon the ground of convenience of witnesses.-Blossom v. Waller, 30 Cal. App. 439, 158 Pac. 509.

7. Where, upon such a motion, the issues raised by the cross-complaint filed in the action are eliminated by the stipulation of the defendant, and it appears that the determination of the issues raised by the complaint and answer depends largely upon the testimony of the plaintiff and defendant, the motion is properly denied.-Blossom v. Waller, 30 Cal. App. 439, 158 Pac. 509.

8. As between the parties to an action, the inconvenience to witnesses of attending the trial is not a factor in determining a motion of change of venue.-Blossom Waller, 30 Cal. App. 439, 158 Pac. 509.

V.

a judge himself to pass upon his question, but it is a duty the performance of which our law imposes on him, It is both expected and presumed that he can and will perform that duty with impartiality. It is as much his duty to retain a case in which he is not disqualified as to transfer a case in which he is disqualified. Wherever an honest doubt may be thought to exist we believe the profession need have no fear but that the trial judge will with alacrity resolve that doubt in favor of the moving party. No judge desires to sit in a cause where his fairness is questioned. Where it is seriously questioned he more than any, will desire that the transfer be made, because he, better than any, knows that while it is of first importance that the source of justice be fair and impartial, it is of secondary importance only that by the litigants before him it should be believed to be fair and impartial. -Estate of Friedman, 171 Cal. 431, 153 Pac. 919.

3. Judge disqualified may select qualified judge. A judge of the superior court disqualified because of a financial interest from trying an action in eminent domain may select a qualified judge from another county to act for him; a writ of prohibition will not lie to restrain the acting judge from proceeding with the cause or denying a motion for a transfer of the action to the nearest and most accessible court for trial.Yolo Water & Power Co. v. Superior Court, 28 Cal. App. 589, 153 Pac. 394.

V.

case of "a foreign corporation having no managing or business agent, cashier, or secretary within the state."-McKendrick Western Zinc Min. Co., 165 Cal. 24, 130 Pac. $65. 2.

A domestic corporation will be deemed to have departed from the state when all of its agents and officers upon whom personal service can be made have left the state, even though it is still a legal resident and constructively present.-McKendrick v. Western Zinc Co., 165 Cal. 24, 130 Pac. 865.

3. Affidavit for-What must contain and what show.-In order to authorize the making of an order of publication such facts as are relied upon must be established to the satisfaction of the court. If the affldavit presents facts sufficient to establish either of the conditions specified herein and the court acting thereon grants the order, it is sufficient notwithstanding that the court might in its discretion have required further proof to be made. If the allegations of the affidavit were sufficient to warrant the conclusion that the defendant resided outside the state at the time of the application the order for publication is fully authorized.-Porter v. Superior Court, 30 Cal. App. 608, 159 Pac. 222.

4.

Order for publication—Sufficiency of.An order for publication of summons is not defective because it does not include the proof upon which the court found the existence of the jurisdictional facts necessary to the making of the order. It will be presumed that such facts were duly established. -William Wilson Co. v. Trainor, 27 Cal. App. 43, 148 Pac. 954.

5. -Vacation of order.-A judge may vacate an order for publication of summons where upon examination of the affidavit, he finds a total lack of a statement of facts sufficient to authorize the order to be made in the first instance, and such right may exist where it appears that the affidavit was fraudulent. It makes no difference that another judge acted in the attempt to set aside the order, the second judge would have exactly the same authority as the one who had first examined and passed upon the sufficiency.-Porter v. Superior Court, 30 Cal. App. 608, 159 Pac. 222.

words, held paramount to substance under that system of pleading, procedure and practice so much so, indeed, that that notion finally became responsible for the development of the more liberal ideas which directly forced the invention of the more elastic legal actions of case and assumpsit and, indeed, the body of equitable remedies which now adorn the jurisprudence of all civilized countries.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134.

§ 425.

1. Complaint.-Under our simplified system of procedure, where plaintiff's pleadings on the facts begin and end with the complaint, there is by law afforded him an opportunity, without pleading, to interpose evidence overcoming any affirmative matter of defense set up in the answer, and he may, thus, establish a fraud or an estoppel.Llewellyn Iron Works v. Abbott Kinney Co., 172 Cal. 210, 155 Pac. 986.

§ 426.

COMPLAINT, WHAT TO CONTAIN.
1-3. As to form of complaint.
4-6. Conclusions of law.

7. Evidence need not be pleaded.
8. Inconsistency in complaint.
9. Inconsistent allegations.

10, 11. Pleading items of damages, effect of. 1. As to form of complaint.-A pleading in the form of the common counts is sufficient. Pike v. Zadig, 171 Cal. 273, 152 Pac. 923.

2. There must be an allegation in the complaint showing the value of the demanded property. A complaint in an action to recover the possession of mortgaged personal property which contains no other allegation of value than that contained in a copy of the mortgage attached thereto purporting to give the value of some of the articles, is insufficient as an allegation of value at the time of the filing of the complaint.-Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.

3. Recitals in a contract incorporated in a complaint in claim and delivery will not supply the want of averments in the pleading. Keiser v. Levering, 29 Cal. App. 41, 154 Pac. 281.

As to sufficiency of common counts under this section of the Code of Civil Procedure, see post, C. C. P. pt., § 454, note pars. 1-4.

4. Conclusions of law. In an action to annul or cancel a reclamation district assessment, allegations in the complaint that the lands of the plaintiffs were not charged in the present assessment "with their just proportion of the former assessment," nor the "proper proportion of the cost of said reclamation," involved legal conclusions which have no proper place in the pleading. -Spurrier v. Reclamation District No. 17, 172 Cal. 157, 155 Pac. 840.

5. A pleading of the ultimate fact of ownership is sufficient, but where the plaintiff sets forth his chain of title, and upon that chain pleads ownership, the allegation

of ownership becomes a conclusion of law. -Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025.

6. Where, in an action to recover the balance due on a promissory note, the answer admits the execution of the note and that the principal and interest have not been paid, but denies that the same are due and owing, the ultimate fact of nonpayment is admitted, and the denial is but a conclusion of law which should be disregarded.-Pacific Coast Mail Order House, 29 Cal. App. 613, 157 Pac. 539.

7. Evidence need not be pleaded.-In an action to recover a sum of money alleged to have been paid by the plaintiff upon the purchase price of a lot upon which there was at the time a building in course of construction on the ground that the defendant violated his agreement to construct and complete the building in a workmanlike manner, it is not necessary that the complaint set forth all of the evidence showing that the building was not completed in a workmanlike manner, but it is sufficient to call attention to the chief objections to the work. Levi v. Sockolov, 32 Cal. App. 298, 162 Pac. 902.

8.

Inconsistency in complaint.-In an action brought to avoid a deed made by the former husband of the plaintiff to their minor sons, upon the ground that the deed did violence to her rights in the community property and that it was conceived and executed in fraud of her rights, and also to avoid a deed on the ground of fraud subsequently made by her to one of such sons of her undivided interest in the property as heir at law of the other son, whose death occurred subsequent to the first deed, there is no error in allowing the plaintiff on the trial to abandon her contention touching her right to the community property and in resting her action upon a demand for relief against the deed which had been fraudulently obtained from her by her son, based upon the validity of the first deed.-Turner v. Turner, 173 Cal. 782, 161 Pac. 980.

9. Inconsistent allegations. In an action for damages for injuries causing death sustained while preparing to alight from a street-car, the plaintiffs have the right to allege in one count that the car, after stopping, suddenly started, and in a separate count that after the car had slowed down and arrived near or at the place where it usually stopped to allow passengers to alight, and while the deceased was alighting therefrom, the defendant's agents and servants negligently caused the car to be suddenly and violently jerked and started forward.-Froeming v. Stockton Elec. R. R. Co., 171 Cal. 401, 153 Pac. 712.

10. Pleading items of damages, effect of. -The fact that several of the items entering into the damage are formally alleged in the complaint does not preclude the plaintiff from praying for judgment for the total damages suffered, of which such items are a part.-Tucker v. Cooper, 172 Cal. 663, 158 Pac. 181.

11. In an action to recover damages it is not necessary that the amount claimed to

have been sustained be alleged in the complaint, if it contains a prayer in a specified amount.-Tucker v. Cooper, 172 Cal. 663, 158 Pac. 181.

8 427.

1. Joinder of causes of action.-While a is authorized to unite different plaintiff causes of action in a single complaint he is not required to do so. The right of joinder is one that may be exercised at his option and a defendant can not complain if the plaintiff brings a separate action as to each cause of action.-Realty Const. & Mtg. Co. v. Superior Court, 165 Cal. 543, 132 Pac. 1048.

2. A cause of action by a foreign corporation upon a rejected contingent claim based upon a covenant of warranty against the estate of the deceased warrantor can not be united with a cause of action against the devisee of the land affected by the warranty to recover to the extent devised. This would be a misjoinder of parties defendant because of the absence of unity of interest of the parties.-Tropico Land & Imp. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206.

sus

3. An action to recover damages tained in consequence of personal injuries to the wife due to expenditures made for the services of nurses, medical treatment and increased household expenses, can not be joined with an action to recover damages for her personal injuries, as the right to recover such consequential damages constitutes a cause of action in favor of the husband alone, while the wife is a necessary party plaintiff to an action for damages for her injuries, and where the two causes of action are joined in the one complaint in an action by the husband and wife, a special demurrer thereto on the grounds of misjoinder of causes of action and misjoinder of parties plaintiff should be sustained, but where such misjoinder has not prevented a full, fair and complete trial of the issues presented, the error is technical and falls within the provisions of section 41⁄2 of article VI of the state constitution.-Meier v. Wagner, 27 Cal. App. 579, 150 Pac. 797.

4. -Election.-In case of an improper joinder of two causes of action in one count, which could have been stated in separate counts and be submitted to the jury, the plaintiff can not be required to elect at the trial as to which he will rely upon.-Balaklala Consol. Copper Co. v. Whitsett, 221 Fed. 421.

2.

Where it appears on the face of a complaint that the action, brought by a nonresident against a foreign corporation, has not arisen from the business done by the corporation in the state, the objection to the complaint may be taken advantage of by demurrer.-Fry v. Denver & R. G. R. Co., 226 Fed. 893.

3. A want of legal capacity to sue.-An objection to the legal capacity of the plaintiffs to maintain the action or sue upon the obligation pleaded can not be raised by a general demurrer.-Moore v. Lauff, 30 Cal. App. 452, 158 Pac. 557.

an

a

4. For misjoinder of causes of action.-A fisherman action by complaint in against certain deputy fish and game wardens for damages, which charges the defendants with "unlawfully" arresting the plaintiff and compelling him to abandon his launch upon which he lived and slept, without first giving him an opportunity to secure its safety from the dangers of the elements or the sea, as a consequence of which the launch was destroyed, states a cause of action for negligence, and not for false imprisonment, and is not subject to demurrer for misjoinder of causes of action.-Argyropolus v. Barnes, 28 Cal. App. 254, 151 Pac. 1156.

5. For misjoinder of parties.-There is no misjoinder of parties defendant where the employee of a gas company sues a railroad company and the owner of a team, alleging that the railroad company negligently operated a welding machine and thereby frightened the horses so that one of them fell into the trench where the plaintiff was working.-Fallon V. United Railroads, 28

Cal. App. 60, 151 Pac. 290.

6. Laches may be taken advantage of by can be demurrer.-The defense of laches taken advantage of by demurrer; such a defense is, in substance, that the complaint does not show equity, or fails to state facts sufficient to constitute a cause of action.Superior California Fruit Land Co. v. Grossman, 32 Cal. App. 357, 162 Pac. 1046.

7. Variance between allegation and exhibit. A variance between the direct allegations of a complaint and a copy of an instrument set forth therein, or an exhibit attached thereto, can be successfully attacked only by special demurrer and can not be taken advantage of by general demurrer.Linz v. McIver & Becker, 29 Cal. App. 470, 156 Pac. 1000.