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of the controversy, may determine any controversy 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 can not be had without the presence of other parties, the court must cause them to be brought in. And when in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject matter thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property, upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property without collusion with him, may at any time before answer apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property or its value to such person as the court shall direct. The court, in its discretion, may make such an order.

Code, s. 189; C. C. P., s. 65.

Note. For intervention in claim and delivery, see s. 800.

For intervention in attachment, see s. 789.

415. Abatement of actions. 1. 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 death, except in suits for penalties, and for damages merely vindictive, marriage or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued, by,. or against, his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be substituted in the action.

2. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of a party.

3. At any time after the death, marriage, or other disability of the party plaintiff, the court in which an action is pending, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discretion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months, nor exceeding one year from the granting of the order.

4. No action against a receiver of a corporation shall abate by reason of his death, but, upon suggestion of the facts on the record,

shall be continued against his successor, or against the corporation in case no new receiver be appointed.

Code, s. 188; 1901, c. 2, s. 85; C. C. P., s. 64; R. C., c. 1, s. 4; c. 46, s. 43.

416. Death of party suggested before clerk. Whenever any party to any action in the superior court shall die pending the action, the death of such party may be suggested before the clerk of the superior court where the action is pending during vacation. 1887, c. 389.

417. Clerk to summon party succeeding to rights or liabilities; answer. When the suggestion of the death of a party has been made before any clerk, it shall be the duty of such clerk to issue a summons to the party who succeeds to the rights or liabilities of the defendant commanding him to appear before him on a day to be named in said summons, which shall be at least twenty days after the service thereof, and answer the complaint, and the issue joined by the filing of the said answer shall stand for trial at the term of the superior court next following.

1887, c. 389, s. 2.

418. Clerk to notify party succeeding to rights of deceased plaintiff. When the plaintiff shall die and the suggestion of the death of a party is made, it shall be the duty of the clerk before whom the suggestion is made to issue a notice to the party succeeding to the rights of party deceased who will be necessary to the prosecution of the action to final judgment to appear and become party plaintiff, and in the event the party made plaintiff shall file an amended complaint, then the defendant shall have twenty days after notice of the amended complaint being filed in which to file an answer thereto, and the issue thus made up shall stand for trial at the succeeding

term.

1887, c. 389, s. 3. Note.

For substitution of administrator d. b. n., see s. 154.

NOTE. State is plaintiff in actions on official bonds and securities, see SS. 280, 281.

VII. VENUE.

419. Place of subject of action. 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, in the cases provided by law:

1. 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.

2. For the partition of real property.

3. For the foreclosure of a mortgage of real property. 4. For the recovery of personal property.

Code, s. 190; 1889, c. 219; C. C. P., s. 66.

Note.

For venue in partition proceedings, see s. 2486.

420. Where cause of action arose. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial, in the cases provided by law:

1. For the recovery of a penalty or forfeiture, imposed by statute; except that, when it is imposed for an offense committed on a sound, bay, river, or other body of water, situated in two or more counties, the action may be brought in any county bordering on such sound, bay, river, or other body of water, and opposite to the place where the offense was committed.

2. Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid, shall do anything touching the duties of such officer.

Code, s. 191; C. C. P., s. 67.

421. Official bonds, executors and administrators. All actions upon official bonds or against executors and administrators in their official capacity shall be instituted in the county where the bonds shall have been given, if the principal or any of the sureties on the bond is in the county; if not, then in the plaintiff's county.

Code, s. 193; 1868-9, c. 258.

422. Domestic corporations. For the purpose of suing and being sued the principal place of business of a domestic corporation shall be its residence.

1903, c. 806.

423. Foreign corporations. An action against a corporation created by or under the laws of any other state, government, or country, may be brought in the superior court of any county in which the cause of action arose, or in which it usually did business, or in which it has property, or in which the plaintiffs, or either of them, shall reside, in the following cases:

1. By a resident of this state, for any cause of action.

2. By a plaintiff, not a resident of this state, when the cause of action shall have arisen, or the subject of the action shall be situated within this state.

Code, s. 194; C. C. P., s. 361; 1876-7, c. 170.

424. Where plaintiff or defendant resides; where neither is resident. In all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action; or if none of the defendants shall reside in the state, then in the county in which the plaintiffs, or any of them, shall reside; and if none of the parties shall reside within the state, then the same may be tried in any county which the plaintiff shall designate in his summons and complaint, subject, however, to the power of the court to change the place of trial, in the cases provided by statute: Provided, that in all actions against railroads the action shall be tried either in the county where the cause. of action arose or in the county where the plaintiff resided at the time the cause of action arose, or in some county adjoining the county in which the cause of action arose, subject, however, to the power of the court to change the place of trial in the cases provided by statute. Code, s. 192; C. C. P., s. 68; 1868-9, cc. 59, 277; 1905, c. 367.

425. Change of. If the county designated for that purpose in the summons and complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before. the time of answering expires, demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court.

The court may change the place of trial in the following cases: 1. When the county designated for that purpose is not the proper county.

2. When the convenience of witnesses and the ends of justice would be promoted by the change.

3. When the judge shall have been, at any time, interested as party or counsel.

Code, s. 195; C. C. P., s. 69; R. C., c. 31, ss. 115, 118; 1870-1, c. 20.

426. Removal for fair trial. In all civil and criminal actions in the superior and criminal courts, in which it shall be suggested on oath, or by affirmation, on behalf of the state, or the traverser of the bill of indictment, or of the plaintiff or defendant, that there are probable grounds to believe that a fair and impartial trial can not be obtained in the county in which the action shall be pending, the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial, if he shall be of the opinion that a fair trial can not be had in said county, after hearing all the testimony which may be offered on either side by affidavits.

Code, s. 196; 1879, c. 45; 1899, cc. 104, 508; 1806, c. 693, s. 12.

427. Affidavits and counter affidavits; shall remove, when. No action, whether civil or criminal, shall be so removed, unless the affidavit shall set forth particularly and in detail the ground of the application. And it shall be competent for the other side to controvert the allegations of fact in said application, and to offer counter affidavits to that end. And the judge shall order the removal of any such action, if he shall be satisfied after thorough examination of the evidence as aforesaid that the ends of justice demand it. Code, s. 197; 1879, c. 45; 1899, c. 104, s. 2.

428. Transcript on removal; subsequent proceedings. When a cause shall be directed to be removed, the clerk shall transmit to the court to which the same is removed a transcript of the record of the case, with the prosecution bond, bail bond, and the depositions, and all other written evidences filed therein; and all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed, or by order of court.

Code, ss. 195, 198; R. C., c. 31, s. 118; 1806, c. 694, s. 12; 1810, c. 787; C. C. P., s. 69.

VIII. SUMMONS.

429. Civil actions commenced by. Civil actions shall be commenced by issuing a summons; but no summons need issue in controversies submitted without action, and in confessions of judgment without action.

Code, s. 199; C. C. P., s. 70.

Note. See ss. 580, 803, and Hervey v. Edmunds, 68 N. C., 243.

430. What to contain; where returnable. The summons shall run in the name of the state, be signed by the clerk of the superior court having jurisdiction to try the action, and shall be directed to the sheriff or other proper officer of the county in which any defendant resides or may be found. It shall be returnable to the regular term of the superior court of the county from which it issued; and shall command the sheriff, or other proper officer, to summon the defendant to appear at the next ensuing term of the superior court and answer the complaint of the plaintiff; and shall contain a notice stating in substance that if the defendant shall fail to answer the complaint within the time specified, the plaintiff will apply to the court for the relief demanded in the complaint; and shall be dated on the day of its issue.

Code, ss. 200, 213; C. C. P., 74; 1876-7, cc. 85, 241.
Note. See s. 106.

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