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Oct. 11, 1862.

When action not to abate.

6 Or. 31.
16 Or. 214.
19 Or. 65.
3 Saw. 44.

Craighead, 67 N. Y. 432; Eaton v. Alger, 47 Id. 345; Barker v. Cassidy, 16 Barb. 177; Churchill v. Trapp, 3 Abb. Pr. 306. A principal and his guarantor cannot be sued as co-defendants under this section, their obligations being distinct and not arising on the same instrument; and this is true though the guaranty be written on the same paper that it secures: Tyler v. T. of T. A. & P. U., 14 Or. 485; Carman v. Plass, 23 N. Y. 286; Cole v. Merchants' Bank, 60 Ind. 350; Bondurant v. Bladen, 19 Id. 160; Graham v. Ringo, 67 Mo. 324; Phalen v. Dingee, 4 E. D. Smith, 379; Tibbitts v. Percy, 24 Barb. 39; Allen v. Fosgate, 11 How. Pr. 218; Virden v. Ellsworth, 15 Ind. 144; Ridder v. Schermerhorn, 10 Barb. 638; as a lease with a guaranty below it: Tibbitts v. Percy, 24 Id. 39; Phalen v. Dingee, 4 E. D. Smith, 379.

An action cannot be maintained under this section against the maker and guarantor of a note: Barton v. Speis, 5 Hun, 60; Brewster v. Silence, 8 N. Y. 207. If the case was one in which the parties were actually made liable by the same instrument, they might be joined: Pomeroy's Remedies, sec.

410; Carman v. Plass, 23 N. Y. 283; Decker v. Gaylord, 8 Hun, 110. Thus on a note two signers may be sued as makers, though one adds to his name the word "surety": Hoyt v. Mead, 13 Id. 327. A lessor and surety who join in a lease may be sued together: Carman v. Plass, 23 N. Y. 286; Decker v. Gaylord, 8 Hun, 110.

The section applies only to written instruments or obligations: Cridler v. Curry, 44 How. Pr. 345; Field v. Van Cott, 15 Abb. Pr., N. S., 349; and every written agreement or undertaking on which parties may become liable is embraced: Brainard v. Jones, 11 How. Pr. 569. Though several parties have been joined under this section, the plaintiff may go to trial without serving all, and may dismiss as to some, and take judgment as to those served and proceeded against: Powell v. Powell, 48 Cal. 234. The judgment in actions under this section must follow the nature of the liability of each defendant; the effect of the section is not to render their liability joint: Decker v. Trilling, 24 Wis. 610; Kelsey v. Bradbury, 21 Barb. 531; Farmers' Bank v. Blair, 44 Id. 641.

§ 38. [37.] No action shall abate by the death, marriage, or other 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, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successor in interest.

When action does not abate. -This section abrogates the common-law rule that an action abated by the termination or transfer of the plaintiff's interest therein pendente lite: Elliot v. Teal, 5 Saw. 188. This section applies to actions in the United States courts: Barker v. Ladd, 3 Id. 44. The representative may have leave to continue the suit, but he is not compelled to do so: Bain v. Pine, 1 Hill, 615. An administrator may have leave to continue an action if it is of the class that survives, without regard to the merits of the action: Wing v. Ketcham, 3 How. Pr. 385. The objection that the cause does

not survive is available on the trial: Arthur v. Griswold, 60 N. Y. 143. The motion to continue the action is a motion in the action, and the papers should be entitled therein: Davis v. Richards, 2 N. Y. Mo. Law Bull. 97.

The substitution may be made on a suggestion of the death of the former party, and satisfactory proof on an ex parte motion of the appointment and qualification of the administrator; and if the court unguardedly permits a person to prosecute who has not given satisfactory evidence of his right to do so, it possesses the means of preventing any mischief from the inadvertence, and will un

doubtedly employ those means: Wilson v. Cadmon, 3 Cranch, 193; Taylor v. Western Pacific R. R. Co., 45 Cal.

337.

It is regular and proper to suggest the death of a party to an action in any court and at any stage of the proceedings. The death of a party occurring before appeal taken may be shown in the supreme court by affidavit of the fact: Judson v. Love, 35 Id. 463; Shartzer v. Love, 40 Id. 96. A decree reciting that "this action having been continued, in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for the plaintiff, it is now ordered," etc., clearly shows the suggestion of the death of the original plaintiff, and a continuance of the cause or a revival of it in the name of the executor. At all events, any irregularity in this respect cannot be attacked collaterally: Gregory v. Haynes, 13 Cal. 591; S. C., 21 Id. 445.

Unless the motion is made within a year, it is barred: Matter of Bainbridge, 67 Barb. 293. But while the motion must be made within a year, the application is in time if this is done, though the order be not made until after the expiration of the year: Dick v. Kendall, 6 Or. 166. If the action is not continued, it may be dismissed on motion of the other party: Banta v. Marcellus, 2 Barb. 373. An appeal lies from an order refusing to continue the action in the name of the representative: Wood v. Reynolds, 25 Hun, 385; but an order refusing to continue it in the name of an assignee is not appealable: McGown v. Leavenworth, 2 E. D. Smith, 21; but see Beach v. Reynolds, 53 N. Y. 1.

Death of the defendant will dissolve an attachment: Myers v. Mott, 29 Cal. 367; Hensley v. Morgan, 47 Id. 622; Ham v. Cunningham, 50 Id. 365, 367. The appearance of an infant by a guardian ad litem, who is already before the court by his general guardian, is a substitution and not an intervention: Temple v. Alexander, 53 Id. 3. Infant successors of a deceased defendant in an action of partition may be substituted for such defendants on motion without issuance of a summons to bring them in, and they may appear by their general guardian or by a guardian ad litem: Emeric v. Alvarado, 64 Id. 529.

Substituted parties take up the Oct. 11, 1862. controversy in the condition in which they find it: Temple v. Alexander, 53 Cal. 3. If pending an action one of the defendants dies, and on plaintiff's motion his executor is substi

tuted as defendant in his place, and no notice of this fact is served on the executor, and he does not appear or answer, or adopt the answer of his testator as his own, and the testator is named in the judgment, the rights of the executor are not affected by the trial and judgment, and a judgment rendered is a nullity so far as he is concerned: McCreery v. Everding, 44 Id. 284.

Transfer of interest. - Where, pending an action of ejectment against a tenant, his landlord sells and conveys the land to a person, that person is, under this section, entitled to continue the defense of the action in the name of the tenant, or to cause himself to be substituted in the tenant's place as defendant: Mastick v. Thorp, 29 Cal. 446. So, if pending an action in ejectment, the plaintiff parts with the title of the demanded premises, the action may be continued in his name, unless the grantee applies to be substituted as plaintiff: Camarillo v. Fenlon, 49 Id. 203. So far as relates to substitution on transfer of interest under this section, the plaintiff or his vendee is the party to move in the matter; he is, as against the defendant, entitled to stay in court until his case has been tried; and if defendant desires to take advantage of the transfer for any purpose, he must do so by supplemental answer: Moss v. Shear, 30 Cal. 467; Barstow v. Newman, 34 Id. 90; Hestres v. Brennan, 37 Id. 388. Substitution of a different plaintiff will not be allowed where it will result in injury to any right of the defendant: Skewes v. Dunn, 1 West Coast Rep. 628 (Utah).

The bankruptcy of an appellant, though adjudicated before the taking of the appeal, will not prevent its prosecution in his name, nor will the respondent be heard to object on that ground. The appeal may be prosecuted in the name of the bankrupt, or in that of his assignee: O'Neil v. Dougherty, 46 Cal. 575.

A successor in office may be substituted as party to the action on suggestion to the court that the party's term of office has expired: Jordan v. Hubert, 54 Cal. 260; Ex

Oct. 11, 1862.

When action

for wrong does not abate.

Interpleader.

parte Tinkum, 54 Id. 201. And the
change in the incumbency must be
suggested, if judgment against the
successor is desired: Lindsey v. Au-
ditor, 3 Bush, 231; Ex parte Tinkum,
supra. But an action cannot be con-
ducted by or prosecuted against a suc-

cessor in office, if the right accrued or liability attached to the individual and not to the office: Lament v. Haight, 44 How. Pr. 1.

Survival of actions: See post, §§ 369 [365] et seq.

§ 39. [38.] An action for a wrong shall not abate by the death of any party, after the verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives.

See note to preceding section.

§ 40. [39.] In any action for the recovery of specific personal property, if a third person demand of the defendant the same property, the court in its discretion, on motion of the defendant, and notice to such person and the adverse party, may, before answer, make an order discharging the defendant from liability to either party, and substitute such person in his place as defendant. Such order shall not be made but on the condition that the defendant deliver the property or its value to such person as the court may direct, nor unless it appears from the affidavit of the defendant, filed with the clerk by the day he is otherwise required to answer, that such person makes such demand without collusion with the defendant. The affidavit of such third person as to whether he makes such demand of the defendant may be read on the hearing of the motion.

Interpleader. It is held that this is merely a summary means of obtaining relief in cases specified in the section where a bill of interpleader would lie. It introduces no new cases, and except as expressly provided, is governed by the same rules as equitable interpleader: Vosburgh v. Hamil ton, 15 Abb. Pr. 254; Taunton v. Groh, 4 Abb. App. Dec. 358; Johnson v. Maxey, 43 Ala. 521; Nelson v. Goree, 34 Id. 565; Patterson v. Perry, 14 How. Pr. 505; St. Louis Life Ins. Co. v. Alliance Mut. L. Ins. Co., 23 Minn. 7; Delaney v. Murphy, 24 Hun, 503. This statutory remedy of interpleader does not oust courts of equity of their

jurisdiction to proceed by bill of interpleader. The remedy is merely concurrent and cumulative: Oriental Bank Corp. v. Nicholson, 3 Jur., N. S., 857; Beck v. Stephani, 9 How. Pr. 193; Board of Education v. Scoville, 13 Kan. 17.

The application is an appeal to the equitable jurisdiction of the court: Pustel v. Flannelly, 60 How. Pr. 67. It is discretionary with the court to grant or refuse leave to interplead: Barry v. Mut. L. I. Co., 53 N. Y. 536; and the order on the motion is therefore not appealable: Id.

The nature of the allegations necessary are: 1. That two or more persons

have preferred a claim against him; the applicant was not a party thereto: Oct. 11, 1862. 2. That they claim the same thing; 3. Wehle v. Bowery Savings Bank, 40 N.Y. That he has no beneficial interest in Super. Ct. 97. The applicant must the thing claimed; and 4. That he not be a wrong-doer, or in default as cannot determine without hazard to to either defendant: N. Y. & N. H. himself to which of the claimants the R. R. Co. v. Hows, 35 Id. 372; Shaw thing of right belongs: Atkinson v. v. Coster, 8 Paige, 339; S. C., 35 Am. Manks, 1 Cow. 691; Shaw v. Coster, Dec. 690; McGaw v. Adams, 14 How. 8 Paige, 339; S. C., 35 Am. Dec. 690. Pr. 461. He must not by his own act The thing to which adverse claim is have placed himself in the position to made must be one and the same thing: be sued: United States v. Victor, 16 Pister. Wade, 56 Cal. 43. To en- Abb. Pr. 153; and if a liability is title the defendant to relief, the affi- claimed against him, he cannot have davit must show that the whole con- such relief: Patterson v. Perry, 14 troversy can be tried in the suit with How. Pr. 505; nor can he be substithe substituted defendant: Sherman tuted as to part of a claim and defend v. Partridge, 4 Duer, 646; Nelson v. as to the rest: Bender v. Sherwood, 15 Goree, 34 Ala. 565; that he is indiffer- Id. 258. He is not entitled to the reent to the claims of either party: lief if he can be protected in any other Martin v. Elwood, 11 Paige, 365; way: N. Y. & N. H. R. R. Co. v. Oppenheim v. Wolfe, 3 Sand. Ch. 171; Hows, 35 N. Y. Sup. Ct. 372 The Van Buskirk, v. Roy, 8 How. Pr. 325; relief ought not to be granted where Pfister v. Wade, 56 Cal. 43; that he it clearly appears on the face of the claims no beneficial interest in the papers that the claim of the third subject of the controversy: Atkinson party is frivolous and without validV. Manks, 1 Cow. 691; Anderson v. ity: Pustel v. Flannelly, 60 How. Pr. Wilkinson, 10 Smedes & M. 601; that 67; or that it is impossible for one o he is ignorant of the rights of the ad- the claimants to succeed: Wilson v. verse claimants: Bell v. Hunt, 3 Barb. Duncan, 8 Abb. Pr. 354; or if the deCh. 391. He cannot be substituted fendant is not in position to deposit as to part and defend as to the rest: the property in court: Vosburgh v. Bender v. Sherwood, 15 How. Pr. 258. Huntington, 15 Id. 254. The defendHe must deny collusion with either ant is not bound to withdraw, it is party: Shaw v. Coster, 8 Paige, 339; held, after obtaining an order substiS. C., 35 Am. Dec. 690; Marvin v. tuting another person as defendant, Ellwood, 11 Paige, 365; Atkinson v. but may go on and defend the action: Manks, 1 Cow. 691; but collusion with Neill v. Wuest, 17 Id. 319, note. the party to whose rights plaintiff succeeded, and the claimant, is not

As to equitable interpleader, see the extended note to Shaw v. Coster,

ground for refusal of interpleader, if 35 Am. Dec. 695.

§ 41 [40.] The court:

determine any Bringing in

new parties.

between parties before it, when it can be done without ' prejudice to the rights of others, or by saving their 13 Or. 491. rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in. Bringing in new parties. parties to the suit can be determined: The equitable power of protecting McMahon v. Allen, 12 How. Pr. 39.

the

proceedin

g,

but not parties thereto,

determined without them, other par-
ties cannot be brought in: Tichenor
v. Coggins, 8 Or. 270; Albany City

is preserved by this section: Buck v.
Webb, 2 West Coast Rep. (Col.). The
Sentence, "when a complete determin- Savings Bank v. Burdick, 87 N. Y.

ation of

the controversy cannot be

40; and especially is this the case

had without the presence of other where defendants are sought to be

parties,

means when there are per

brought in, and the plaintiff objects:

800s who are not parties whose rights Sawyer v. Chambers, 11 Abb. Pr. 110.

must be

settled before those of the

It is the duty of the court to bring in

Oct. 11, 1862.

other parties when a complete deter-
mination cannot be had, even after ap-
peal: Shaver v. Brainard, 29 Barb.
25; Davis v. Mayor, 2 Duer, 663;
Tonnelle v. Hall, 3 Abb. Pr. 205;
Waring v. Waring, 3 Id. 246; but see
Davis v. Mayor, 14 N. Y. 506, where
it is held that new parties should not
be brought in after trial though with-
out them the controversy cannot be
determined.

When an agreed controversy has
been submitted by some parties, the
court cannot order others to be
brought in: Hobart College v. Fitzhugh,
27 N. Y. 130. It was held that pro-
ceedings could go on in a creditor's
suit, where the judgment debtors
were not made parties, but by stipu-
lation consented to be bound by the
judgment, and released their interest
in the subject of the action: Cowing v.
Greene, 45 Barb. 585. When a hus-
band conveys the bare title to a third
person in trust for his use to prevent
the marital rights of the wife from
attaching thereto, such third person
is a proper party to a divorce pro-

ceeding in which the wife seeks her share of the property: Wetmore v. Wetmore, 5 Or. 469. A claim to the ownership and possession of a wharf cannot be tried in an action between third parties for wharfage: Kelsey v. Murray, 18 Abb. Pr. 294. In an action against stockholders on their statutory liability, it was held that all must be brought in: Strong v. Wheaton, 38 Barb. 616. The court will not compel plaintiff's assignor to be brought in to procure an accounting: Allen v. Smith, 16 N. Y. 415. An assignee for the benefit of creditors is not entitled to interplead in an attachment suit against a debtor: Tichenor v. Coggins, 8 Or. 270; or in a judgment creditor's action, except it be to protect his right to the surplus: N. S. of Mexico v. Duncan, 6 N. Y. Week. Dig. 271.

The statute of limitations is a defense to one thus brought in, if the bar attached after commencement of the suit, but before the time of bringing him in: Newman v. Marvin, 12 Hun, 236.

Venue in actions to recover real property or personal property distrained.

12 Or. 321.

14 Or. 4.3.

TITLE IV.

OF THE PLACE OF TRIAL.

§ 42. What actions to be tried where the subject, or some part, is situated.

§ 43. What actions to be tried where the cause, or some part, arose.

§ 44. What actions to be tried where the defendant resides, or may be found.

§ 45. When court may change place of trial.

§ 46. Same subject.

§ 47. Transcript and papers to be sent to clerk of court to which cause is

transferred.

§ 48. Who to pay costs, same not to be taxed.

§ 49. When, if transcript not transmitted, court may vacate order.

§ 50. When change of venue deemed complete.

§ 42. [41.] Actions for the following causes shall be commenced and tried in the county in which the subject of the action, or some part thereof, is situated:

1. For the recover of real property, or an estate or interest therein, or for injuries to real property;

2. For the recovery of any personal property distrained for any cause.

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