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& Supply Co. v. Lennig-Rapple Eng. Co., 26 part of the state to all actions embraced Cal. App. 177, 146 Pac. 188.

in the classes described. It can not there

fore be a special law forbidden by the con§ 392.

stitution if it is addressed to a class or 1. Venne-Construction.-An action for

classes based on some natural, intrinsic, or the recovery of compensation from a drain

constitutional distinction or difference, reasage district under an act giving such com

onable and substantial, between these acpensation to a person who has provided or

tions and others not included and sufficient left land for a by-pass or waterway and the

in some reasonable degree to account for district has accepted and gone into posses

or justify the making of the different rule. sion is not one for injury to real property,

-Gridley v. Fellows, 166 Cal. 765, 138 Pac. and is in no sense a local action. Such an

355. action must be tried as provided for in sec

3. This section as amended in 1911 has tion 395.—Gallup v. Sacramento & San Joa

no application to actions against non-resiquin Drainage Dist., 171 Cal. 71, 151 Pac.

dents of the state. The change in the law 1142.

was designed to enlarge the rights of plain2. An action by a minority stockholder

tiffs by giving them a choice of two counof a corporation which had forfeited its

ties, where before the defendant had the charter for failure to pay its license tax to

right to a trial in the county of his resi. enjoin the directors from carrying on the

dence.—Rains v. Diamond Match Co., 171 business and to compel a winding up of the

Cal. 326, 153 Pac. 239. affairs and a distribution of the proceeds is

4. Under any construction that may be not one for the determination of an inter

given to section 395, the place of trial may est in real property under section 5 of ar

still be changed when the "convenience of ticle VI of the constitution, requiring it to

witnesses and the ends of justice" would be be tried in the county where the property

promoted by the change.-Rains v. Diamond is located.--Rossi v. Caire, 174 Cal. 74, 161

Match Co., 171 Cal. 326, 153 Pac. 239. Pac. 1161.

5. -Association and individuals compos3. An action to rescind a contract for the ing it sued.—Where plaintiff sues associates purchase and sale of real property on the under their common name but also makes ground of fraud, and to recover the money the individual members parties, the indipaid thereunder, is not an action for the vidual defendants are entitled to have the determination of some right or interest in place of trial changed to the county of their real estate within the meaning of section residence.--Nelson v. East Side Grocery Co., 392 of the Code of Civil Procedure, and is 26 Cal. App. 344, 146 Pac. 1055. properly transferred to the county of the

--Corporation governed by same rules residence of the defendant upon motion as individuals.--A corporation, like an intherefor.—Terry v. Rivergarden Farms Co., dividual, has a legal residence somewhere, 29 Cal. App. 59, 154 Pac. 476.

and under this section a private corporation 4. To constitute a real action it must ap- must be held to reside at the place "where pear that title or interest in real property its principal office or place of business is is involved.-Terry v. Rivergarden Farms established.”—Gallup V. Sacramento & San Co., 29 Cal. App. 59, 154 Pac. 476.

Joaquin Drainage Dist., 171 Cal. 71, 151

Pac. 1142. 8 395.

7. Amendment of 1911 constitutional. VENUE RESIDENCE OF DEFENDANT.

The amendment of 1911 to section 395 of the

Code of Civil Procedure, changing the pre1-4. Construction-Amendment of 1911.

vious requirement that certain kinds of per5. —Association and individuals com

sonal actions must be tried in the county in posing it sued. 6. —Corporation

which the defendants, or some of them, regoverned by same

side at the time of the commencement of the rules as individuals. 7. Amendment of 1911 constitutional.

action, so as to authorize actions for injury 8. Action to cancel contract to purchase

to person or property, or for death from

wrongful act, or negligence, to be tried land. 9, 10. Action for injuries to person.

either in the county where the injury oc11, 12. Uniting real and personal action.

curred or in the county in which the defend

ants, or some of them, reside at the com1. Construction-Amendment of 1911.- mencement of the action, is a valid exercise The amendment provides that the action of legislative power.-Rains V. Diamond may be tried, either in the county where Match Co., 171 Cal. 326, 153 Pac. 239. the defendant resides at the time it is be- 8. Aetion to cancel contract to purchase gun or in the county where the injury oc- land.-Where an action for the cancellation curred. No preference is given to one over of a contract to purchase land seeks, as the other. Either county is therefore the against one of the defendants, simply a proper county. The superior court can not money judgment for misrepresentations, he change the place of trial except in the cases is entitled to have the place of trial changed and for the causes provided by express law. to the county of his residence, notwith--Gridley v. Fellows, 166 Cal. 765, 138 Pac. standing the title to real estate is involved. 355.

-Terry V. Rivergarden Farms Co., 29 Cal. 2. While the provision of the amend- App. 59, 154 Pac. 476. ment to this section applies only to specified

Action for injuries to person.—Under classes of cases, it applies alike in every this clause the proper place for the trial of an action for injuries to person is either less there has been a clear abuse of that disthe county where the injury occurred or cretion.—Tait v. Midway Field Oil Co., 28 that in which the defendant resides.-Rains Cal. App. 107, 151 Pac. 378. v. Diamond Match Co., 171 Cal. 326, 153 4. A motion for a change of venue, Pac. 239.

grounded upon the convenience of witnesses, 10. Where an alien sustains personal in- rests in the discretion of the trial court, the juries on a vessel owned by a corporation exercise of which will not be disturbed in of a foreign country while at a wharf with- the absence of a showing of its abuse,in this state, a state court has jurisdiction Blossom v. Waller, 30 Cal. App. 439, 158 of an action to recover for such injury.- Pac. 509. Faras v. Lower Cal. Development Co., 27 5. A mere preponderance in the number Cal. App. 688, 151 Pac. 35.

of the witnesses claimed to be necessary 11. Uniting real and personal action.-A to the moving party does not entirely conplaintiff can not deprive a defendant of his trol the exercise of the court's discretion. right to a trial of a personal action in the -Blossom v. Waller, 30 Cal. App. 439, 158 county of his residence, by uniting in his Pac. 509. complaint a cause of action for the recov- 6. Stipulations admitting as true certain ery of or the determination of an interest facts stated in the pleadings may be rein real property.-Terry v. Rivergarden ceived in opposition to a motion for a change Farms Co., 29 Cal. App. 59, 154 Pac. 476. of venue made upon the ground of conveni

12. When a real and personal action are ence of witnesses.-Blossom v. Waller, 30 joined, the case may be transferred to the

Cal. App. 439, 158 Pac, 509. residence of the defendant.-Terry v. River- 7. Where, upon such a motion, the issues garden Farms Co., 29 Cal. App. 59, 154 Pac. raised by the cross-complaint filed in the 476.

action are eliminated by the stipulation of

the defendant, and it appears that the de$ 396.

termination of the issues raised by the com1. Affidavit of merits-Who may make.- plaint and answer depends largely upon the An affidavit of merits may be made by any testimony of the plaintiff and defendant, the person on behalf of the defendant who is motion is properly denied.-Blossom v. Walsufficiently familiar with the facts in the ler, 30 Cal. App. 439, 158 Pac. 509. case to make it. An affidavit of merits made 8. As between the parties to an action, by the defendant's wife is a compliance with

the inconvenience to witnesses of attending the statute.-Gardner v. Steadman, 31 Cal.

the trial is not a factor in determining a App. 447, 160 Pac. 834.

motion of change of venue.-Blossom v. 2. -Filing of. The filing of a new affi- Waller, 30 Cal. App. 439, 158 Pac. 509. davit of merits by another affiant is a suffi- 9. Order of transfer necessary. A change cient compliance with an order of the court in the place of trial can only be effected permitting an amended aifidavit to be filed, through an order of the court after its juand where this corrects errors or mistakes dicial action has been invoked, by bringing of the original and is in itself sufficient, the matter on for a hearing, where the there is no error in granting the motion for right to transfer can be contested. The a change of the place of trial of the action. court must be applied to for an order of -Gardner v. Steadman, 31 Cal. App. 447, 360 transfer.-Keeley v. Superior Court, 26 Cal. Pac. 834.

App. 213, 146 Pac. 526.

10. Transfer to another county not nec8 397.

essary, when.-One who makes motion CHANGING PLACE OF TRIAL.

under subdivision 4 of this section and finds

a qualified judge presiding, he is not preju1 As to construction of section.

diced by the refusal of that judge to trans2. As to power of court to change.

fer the action or proceeding to another 3-8. Convenience of witnesses --Discretion

county, even though the judge who assumes of court. 9. Order of transfer necessary.

the duty of trying the action or hearing 10. Transfer to another county not neces

the proceeding had been called in from an

other county by the disqualified judge.sary, when.

Matter of Application of Burch, 168 Cal. 18, As to construction of section. This 141 Pac. 813. section is to be construed in connection with subdivision 5 of section 170.--Sacra- § 398. mento & San Joaquin Drainage Dist. V.

JUDGE DISQUALIFIED-CAUSE TRANSRector, 172 Cal. 385, 156 Pac. 506.

FERRED, 2. As to power of court to change.-The

1. Construction of section. superior court can not change the place of trial except in the cases and for the causes

2. Duty of judge to pass on disqualification. provided for by law, and the only authority

3. Judge disqualified may select qualified

judge. is that given by this section.-Gridley v. Fellows, 166 Cal. 765, 138 Pac. 355.

1. Construction of section.--This section 3. Convenience of witnesses-Discretion is applicable to eminent domain proceedings. of court.-Motions for a change of venue -Yolo Water & Power Co. v. Superior Court, upon the ground of convenience of witnesses 28 Cal. App. 589, 153 Pac. 394. are addressed to the discretion of the court,

Duty of judge to pass on disqualificaand rulings thereon will not be reversed un- tion.-It can never be an agreeable duty for

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a judge himself to pass upon his question, case of "a foreign corporation having no but it is a duty the performance of which managing or business agent, cashier, or secour law imposes on him, It is both expected retary within the state."-McKendrick V. and presumed that he can and will perform Western Zinc Min. Co., 165 Cal. 24, 130 Pac. that duty with impartiality. It is as much 865. his duty to retain a case in which he is not 2. A domestic corporation will be deemed disqualified as to transfer a case in which to have departed from the state when all of he is disqualified. Wherever an honest doubt its agents and officers upon whom personal may be thought to exist we believe the pro- service can be made have left the state, even fession need have no fear but that the trial though it is still a legal resident and conjudge will with alacrity resolve that doubt structively present.--McKendrick v. Westin favor of the moving party. No judge ern Zinc Co., 165 Cal. 24, 130 Pac. 865. desires to sit in a cause where his fairness 3. Affidavit for-What must contain and is questioned. Where it is seriously ques- what show.-In order to authorize the maktioned he more than any, will desire that ing of an order of publication such facts the transfer be made, because he, better as are relied upon must be established to than any, knows that while it is of first the satisfaction of the court. If the affimportance that the source of justice be fair davit presents facts sufficient to establish and impartial, it is of secondary importance either of the conditions specified herein and only that by the litigants before him it the court acting thereon grants the order, should be helieved to be fair and impartial. it is sufficient notwithstanding that the -Estate of Friedman, 171 Cal. 431, 153 Pac. court might in its discretion have required 919.

further proof to be made. If the allegations 3. Judge disqualified niny select qualified of the affidavit were sufficient to warrant judge.-A judge of the superior court dis- the conclusion that the defendant resided qualified because of a financial interest from outside the state at the time of the applicatrying an action in eminent domain may se- tion the order for publication is fully authlect a qualified judge from another county orized.---Porter v. Superior Court, 30 Cal. to act for him; a writ of prohibition will App. 608, 159 Pac. 222. not lie to restrain the acting judge from

Order for publication-Sufflciency of.proceeding with the cause or denying a mo- An order for publication of summons is not tion for a transfer of the action to the near- defective because it does not include the est and most accessible court for trial.- proof upon which the court found the existYolo Water & Power Co. v. Superior Court, ence of the jurisdictional facts necessary to 28 Cal. App. 589, 153 Pac. 394.

the making of the order, It will be pre

sumed that such facts were duly established. 8 409.

--William Wilson Co. v. Trainor, 27 Cal. Lis pendens, effect of.-A notice of lis

App. 43, 148 Pac. 954.

5. pendens filed prior to a sale on execution

-Vacation of order.-A judge may vagives notice to all intending purchasers

cate an order for publication of summons that the person filing it claims to be the

where upon examination of the affidavit, he owner of the real property which it is pro

finds a total lack of a statement of facts posed to sell on execution.-Koch v. Wil

sufficient to authorize the order to be made coxon, 30 Cal. App. 517, 158 Pac. 1048.

in the first instance, and such right may exist where it appears that the affidavit was

fraudulent. It makes no difference that $ 411.

another judge acted in the attempt to set 1. Service of process — Construction of

aside the order, the second judge would (subd. 3).-The mother of an infant defend

have exactly the same authority as the one ant need not be served with summons where

who had first examined and passed upon the she is the plaintiff in the action.-Fresno

sufficiency.--Porter v. Superior Court, 30 Cal. Estate Co. v. Fiske, 172 Cal. 583, 157 Pac.

App. 608, 159 Pac. 222. 1127.

$ 420. 3 412.

1. Pleading-Formal words not necesSERVICE BY PUBLICATION.

sary.-No particular form of words is re1, 2. Construction of section.

quired under our procedure; it is sufficient 3. Affidavit for-What must contain and if the fact is alleged in such form that it what show.

may be readily understood.-Marshall v. 4. Order for publication-Sufficiency of. Wentz, 28 Cal. App. 540, 153 Pac. 244. 5. -Vacation of order. 1. Construction of section.-The word

§ 421. "person" as used herein authorizing service 1. Pleading Code rules govern. The of a summons by publication where the per- common-law system of pleading and proceson resides outside of the state, or has de- dure, however, required a literal observance parted, or can not be found, or conceals him- of its rules and the slightest technical deparself, must be given its generic meaning ture therefrom, either as to the form of the and construed to authorize service on all action or the pleading of facts essential to corporations, including domestic corpora- the statement of a cause of action in a partions. This is proper notwithstanding the ticular form, would leave the party without clause specially providing for service in the a standing in court. Form was, in other words, held paramount to substance under of ownership becomes a conclusion of law. that system of pleading, procedure and prac- -Cheda v. Bodkin, 173 Cal. 7, 158 Pac. 1025. tice-so much so, indeed, that that notion 6. Where, in an action to recover the finally became responsible for the develop- balance due on a promissory note, the anment of the more liberal ideas which di- swer admits the execution of the note and rectly forced the invention of the more elas- that the principal and interest have not been tic legal actions of case and assumpsit and, paid, but denies that the same are due and indeed, the body of equitable remedies which owing, the ultimate fact of nonpayment is now adorn the jurisprudence of all civilized admitted, and the denial is but a conclusion countries.-Johnson v. Dixon Farms Co., 29 of law which should be disregarded.—PaciCal. App. 52, 155 Pac. 134.

fic Coast Mail Order House, 29 Cal. App. 613,

157 Pac. 539. 8 425.

7. Evidence need not be pleaded.-In an 1. Complaint.-Under our simplified sys- action to recover a sum of money alleged tem of procedure, where plaintiff's plea dings

to have been paid by the plaintiff upon the on the facts begin and end with the com- purchase price of a lot upon which there plaint, there is by law afforded him an op- was at the time a building in course of conportunity, without pleading to interpose struction on the ground that the defendant evidence overcoming any affirmative matter violated his agreement to construct and of defense set up in the answer, and he may, complete the building in a workmanlike thus, establish a fraud or an estoppel.- manner, it is not necessary that the comLlewellyn Iron Works v. Abbott Kinney Co., plaint set forth all of the evidence showing 172 Cal. 210, 155 Pac. 986.

that the building was not completed in a

workmanlike manner, but it is sufficient to $ 426.

call attention to the chief objections to the COMPLAINT, WHAT TO CONTAIN.

work.-Levi v. Sockolov, 32 Cal. App. 298,

162 Pac. 902. 1-3. As to form of complaint.

8. Inconsistency in complaint.-In an ac4-6. Conclusions of law.

tion brought to avoid a deed made by the 7. Evidence need not be pleaded.

former husband of the plaintiff to their 8. Inconsistency in complaint.

minor sons, upon the ground that the deed 9. Inconsistent allegations.

did violence to her rights in the community 10, 11, Pleading items of damages, effect of.

property and that it was conceived and ex1. As to form of complaint.-A pleading ecuted in fraud of her rights, and also to in the form of the common counts is suffi- avoid a deed on the ground of fraud subcient.--Pike v. Zadig, 171 Cal. 273, 152 Pac. sequently made by her to one of such sons 923.

of her undivided interest in the property as 2. There must be an allegation in the heir at law of the other son, whose death complaint showing the value of the de- occurred subsequent to the first deed, there manded property. A complaint in an action is no error in allowing the plaintiff on the to recover the possession of mortgaged per- trial to abandon her contention touching sonal property which contains no other her right to the community property and in allegation of value than that contained in a resting her action upon a demand for relief copy of the mortgage attached thereto pur- against the deed which had been frauduporting to give the value of some of the lently obtained from her by her son, based articles, is insufficient as an allegation of upon the validity of the first deed.-Turner value at the time of the filing of the com- v. Turner, 173 Cal. 782, 161 Pac. 980. plaint.-Keiser v. Levering, 29 Cal. App. 41, 9. Inconsistent allegations.-In an action 154 Pac. 281.

for damages for injuries causing death sus3. Recitals in a contract incorporated in tained while preparing to alight from a complaint in claim and delivery will not street-car, the plaintiffs have the right to supply the want of averments in the plead- allege in one count that the car, after stoping.-Keiser v. Levering, 29 Cal. App. 41, ping, suddenly started, and in a separate 154 Pac. 281.

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count that after the car had slowed down As to sufficiency of common counts under and arrived near or at the place where it this section of the Code of Civil Procedure, usually stopped to allow passengers to see post, C. C. P. pt., $ 454, note pars. 1-4. alight, and while the deceased was alighting

Conclusions of law.-In an action to therefrom, the defendant's agents and serannul or cancel a reclamation district as- vants negligently caused the car to be sudsessment, allegations in the complaint that denly and violently jerked and started forthe lands of the plaintiffs were not charged ward.-Froeming v. Stockton Elec. R. R. Co., in the present assessment "with their just 171 Cal. 401, 153 Pac. 712. proportion of the former assessment," nor 10. Pleading items of damages, effect of. the "proper proportion of the cost of said -The fact that several of the items enterreclamation," involved legal conclusions ing into the damage are formally alleged in which have no proper place in the pleading. the complaint does not preclude the plaintiff -Spurrier v. Reclamation District No. 17, from praying for judgment for the total 172 Cal. 157, 155 Pac. 840.

damages suffered, of which such items are a 5. A pleading of the ultimate fact of part.- Tucker v. Cooper 172 Cal. 663, 158 ownership is sufficient, but where the plain- Pac. 181. tiff sets forth his chain of title, and upon 11. In an action to recover damages it is that chain pleads ownership, the allegation not necessary that the amount claimed to

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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.

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427. 1. Joinder of causes of action.-While a plaintiff is authorized to unite different 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 it 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.

3. An action to recover damages sustained 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 442 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.

a fraud committed more than three years before the commencement of the action, a demurrer based upon the statute of limitations will lie.-Earhart v. Churchill, 169 Cal. 728, 147 Pac. 942.

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.

For misjoinder of causes of action.—A complaint in an action by fisherman 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.

Laches may be taken advantage of by demurrer.-The defense of laches

be 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.

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.

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§ 430.

WHEN DEFENDANT MAY DEMUR. 1, 2. As to generally.

3. A want of legal capacity to sue. 4. For misjoinder of causes of action. 5. For misjoinder of parties. 6. Laches may be taken advantage of by

demurrer. 7. Variance between allegation and ex

hibit. 1. As to generally-When complaint fails to state the time of the discovery of

§ 431.

Demurrer to specify grounds-Construction.—The code does not contemplate dividing up grounds of demurrer piecemeal, but the several grounds relied upon must all be stated in the same pleading.-Fry v. Denver & R. G. R. Co., 226 Fed. 893.

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