Feb. 25, 1889,01. of an agreement in relation thereto. In all other cases, the suit shall be commenced and tried in the county in Venue of suits. which the defendants, or either of them, reside, or may be found at the commencement of the suit; provided, that if none of the defendants reside in this state, the suit may be tried in any county in the state which the plaintiff may designate in his or her complaint; and provided further, that in any suit for the dissolution of the marriage contract the same may be commenced and tried in any county of this state in which either party to the suit resides. See § 42 [41], ante, et seq., as to the venue of actions at law." § 388. [384.] The court may change the place of Dec. 20, 1865, $9. trial on the motion of either party to the suit, where it change of appears from the affidavit of such party, either,— venue. 18 Or. 66. 1. That the suit has not been commenced in the 8 Or. 527. proper county; or, 2. That the judge is a party to, directly interested in, the event of the suit, or connected by consanguinity or affinity, within the third degree, with the adverse party or those for whom he prosecutes or defends; and, 3. That the motion is not made for the purpose of delay. Such change may be taken at any time before answer, and not otherwise, and in the manner and with like effect as in an action. For provision respecting change of venue in actions at law, see §§ 45 [44] and 46 [45], ante. $385. Titles V. to XIII. of chaption to equity ter I., applica suits. $389. [385.] The provisions of chapter I., from and Oct. 11, 1862, inclusive of title V., of such chapter, to and inclusive of title XIII. thereof, shall apply to and govern the mode of proceeding in suits, except as otherwise or specially provided in this chapter. § 390. [386.] When there is more than one defendant Nov. 25, 1885, in the suit, service of the summons may be made by Laws of special serving only one copy of the complaint, the same to be p. 25. served on the defendant designated by the plaintiff or Service of his attorney by a direction indorsed on such summons. 1. session of 1885, summons. Oct. 11, 1862, $387. Service of summons by publication. Oct. 11, 1862, 388. Objections § 391. [387.] In addition to the cases enumerated in the subdivisions of section 56 [55], service of the summons may be made by publication in the following cases: 1. When the subject of the suit is real or personal property in this state, and the defendant has or claims a lien or interest actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein; 2. When the suit is for divorce, in cases provided for in title VII. of this chapter. § 392. [388.] The objection to the jurisdiction of the court, or that the complaint does not state facts sufficient which may be to constitute a cause of suit, if not taken by demurrer or answer, may be made on the trial. made on trial. Oct. 11, 1862, $389. Counterclaim See § 71 [70], ante. fendant has by answer put himself on the merits, the pleadings suggesting no defense of this nature: Kitcherside v. Myers, 10 Or. 21. § 393. [389.] The counterclaim of the defendant shall be one upon which a suit might be maintained by of defendant. the defendant against the plaintiff in the suit; and in addition to the cases specified in the subdivisions of section 73 [72], it is sufficient if it be connected with the subject of the suit. Sections 90 [88], 91 [89], 92 [90], and 93 [91] shall not apply to suits in equity. 5 Or. 501. 12 Or. 173. 14 Or. 340. Counterclaim generally: See But there must be some legal or Washburn v. Roberts, 72 Id. 213 Standley v. Mut. Life Ins. Co., 95 Id 254, 263. And although the defendant may have a right of action, if it does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or is not connected with the subject of the action, or is not a cause of action on contract, it cannot be the subject of a counterclaim: Edgerton v. Page, 20 N. Y. 281; Boreel v. Lawton, 90 Id. 293, 297; Lyon v. Petty, 65 Cal. 322. The words "subject of the action" are construed to mean the subject-matter in dispute, or the facts constituting the plaintiff's cause of action: Chamboret v. Cagney, 41 How. Pr. 125; S. C., 10 Abb. Pr., N. S., 31; S. C., 2 Sweeny, 378; Leh mair v. Griswold, 8 Jones & S. 100. See Simkins v. Columbia etc. R. R. Co., 20 S. C. 269. The subject of an action is either property or a violated right: Glen etc. Manuf. Co. v. Hall, 61 N. Y. Oct. 11, 1862, 226. And see Cornelius v. Kessel, 58 § 889. Wis. 237. $390. § 394. [390.] The plaintiff in a suit may unite several Oct. 11, 1862, causes of suit in the same complaint, when they all arise out of, 1. The same transaction, or transactions connected with the same subject of suit; 2. Contract express or implied; or, 3. Injuries with or without force to property, 4. Claims to real property, or any interest therein, with or without an account for the rents and profits thereof; 5. Claims to personal property, or any interest therein, with or without an account for the use thereof; 6. Claims against a trustee by virtue of a contract, or by operation of law. What causes of suit may be united. But the causes of suit so united must all belong to 13 Or. 446. one of these classes, and must affect all the parties to the suit, and not require different places of trial, and shall be separately stated. See § 93 [91], ante, as to what causes may be united in actions at law. $ 391. Arrest and bail § 395. [391.] The writ of ne exeat is abolished, and Oct. 11, 1862, instead thereof the plaintiff in a suit may have the defendant arrested and held to bail in like manner and in suits. with like effect as provided in title XIII. of chapter I. of this code. A cause of arrest in a suit shall be the same as those specified in section 108 [106], so far as the same may exist, and not otherwise. § 396. § 397. § 398. § 399. TITLE I. OF ISSUES, THEIR TRIAL, AND THE MODE THEREOF. Title I. of chapter II. shall apply to suits; when jury may be formed. Conduct of the trial. Objections to depositions when and how made. § 400. Same subject. § 401. Titles VI. and X. of chapter II. shall apply to suits. § 404. Titles XII., XIII., and XIV. of chapter II. shall apply to suits. When decree may be given in vacation; the entry, roll, and final record thereof. Oct. 11, 1862, § 392. Title I., chap tion of to suits. § 396. [392.] The provisions of title I. of chapter II. of this code shall apply to suits, except as in this ter II., applica- title otherwise or specially provided. Both issues of law and fact shall be tried by the court, unless referred. Whenever it becomes necessary or proper to inquire of any fact by the verdict of a jury, the court may direct a statement thereof, and that a jury be formed to inquire of the same. The statement shall be tried as an issue of fact in an action, and the verdict may be read as evidence, on the trial of the suit. Feb. 25, 1889, § 1. testimony taken. 15 Or. 515. 16 Or. 211. See De Lashmutt v. Everson, 7 Or. 217; Swegle v. Wells, 7 Id. 222; De Lashmutt v. Tillotson, 7 Id. 212; § 397. [393.] As soon as the pleadings are com How and when pleted, if the suit be at issue on a question of fact, the court shall refer the case to a referee, pursuant to provisions of section eight hundred and fifteen of the Code of Civil Procedure, as compiled and annotated by William St. 1889, p. 140. Lair Hill; provided, that the testimony of any or all of the witnesses in a suit in equity may, by the consent of the parties and of the court, be taken orally at the hearing; and in suits for a dissolution of the marriage contract, the court shall have power in all cases, by special order or standing rule, to order the testimony to be taken orally in open court; provided further, that when any testimony is taken orally in open court in an equity suit upon any issue of fact therein, arising from the filing of an answer or reply, the said testimony shall be reduced to writing by the judge of the court or by a person under his direc tion; or, in the event there be an acting official reporter of such court, said testimony may be taken in short-hand by such official reporter, and said testimony, when so reduced to writing, or when transcribed by such official reporter from his stenographic notes thereof, and duly certified, shall be filed with the papers in the suit and be Feb. 25, 1889, § 1. regarded as a deposition or depositions and testimony in How and when the case on appeal to an appellate court. Laws of 1885, p. 69. testimony taken. $394. § 398. [394.] When the suit is called for trial, the Oct. 11, 1862, trial shall proceed in the order prescribed in subdivisions 1, 2, 3, 4, and 5 of section 196 [194], unless the court for trial. special reasons otherwise directs. Conduct of $395. Objections to § 399. [395.] Upon the trial either party may object Oct, 11, 1862, to the reading of a deposition or any part thereof, when offered by the other, because the witness is incompetent, depositions. or the testimony is so, or irrelevant, and not otherwise. All other objections to depositions shall be taken by written exceptions filed with the clerk within ten days from the closing of the testimony, and before the first day of the term next following thereto, and may be heard and decided by the court or judge thereof at any time thereafter before the trial of the suit. 396. Same. § 400. [396.] When it appears from the deposition Oct. 11, 1862, that a party was present at the examination of a witness, such party shall not be heard to object to anything in or concerning such deposition not excepted to at the time of taking the same, except the objections allowed to be taken on the trial as provided in section 397 [393]. When any part of the examination of a witness is excluded for any reason, so much of the cross-examination as relates to the same matter is excluded also. $ 397. Titles VI. and § 401. [397.] The provisions of title VI. and X. of Oct. 11, 1862, chapter II. of this code shall apply to suits, but the final determination of the rights of the parties thereto is called a decree, and any intermediate determination is called suits. an order. x. of chapter II. apply to 11 Or. 225. $398. Decree of dis § 402. [398.] A decree dismissing a suit may be Oct. 11, 1862, given against the plaintiff in any of the cases specified in subdivisions 1, 2, and 3 of section 246 [243], except missal after the last clause of such subdivision 3. Such decree is a determination of the suit, but shall not have the effect to 5 Or. 500. bar another suit for the same cause or any part thereof. trial. |