No. 1 to Sec. 385, ante; and note No. 1 to Sec. 387, ante. 2. CLAUSE ADDITIONAL TO THE SECTION AS IT STOOD BEFORE THE ADOPTION OF THE CODE OF CIVIL PROCEDURE.—The last sentence, commencing, "And when in an action for the recovery of real or personal property," etc., is a new provision. 3. ALL RIGHTS DETERMINED IN ONE ACTION.-A Court of equity will not permit litigation by peacemeal. The whole subject matter, and all the parties, should be before it, and their respective claims determined once and forever.-Wilson vs. Lassen, 5 Cal., p. 116. The rights of all should be adjusted, and nothing left open for future litigation, if it can be helped.— Ord vs. McKee, 5 Cal., p. 516. 4. ORDER TO BRING IN OTHER PARTIES.-Where it turns out upon the trial that a complete determination of the controversy cannot be had without the presence of other parties, the Court should, of its own motion, order them to be brought in before a final disposition of the case.-Settembre vs. Putnam, 30 Cal., p. 497. 5. COURT MAY BRING IN OTHER PARTIES WITHOUT WAITING FOR DEMURRER.-The omission of the defendant to demur for want of parties, does not affect the power of the Court, under this section of the Code, from directing other parties to be brought in if it finds that it cannot completely determine the case in their absence.-Grain vs. Aldrich, 38 Cal., p. 514. But the right of demurrer was given to enable the Court to bring in necessary parties.-Warner vs. Uncle Sam, 9 Cal., p. 697. 6. WHAT MAY BE TRIED IN PARTITION.-Any question affecting the right of the plaintiff to a partition, or the rights of each and all of the parties in the land, may be put in issue, tried, and determined in such action.-DeUprey vs. DeUprey, 27 Cal., p. 330. 7. PARTIES TO SUIT FOR PARTITION.-A married woman whose husband is sued in partition is a necessary party if she claims a homestead right to or an interest in the property in dispute.-De Uprey vs. De Uprey, 27 Cal., p. 329. 8. DISCLAIMER IN PARTITION.-In an action of partition, a defendant cannot claim that the action be dismissed as to him, on the ground that his answer disclaims any interest in the land, unless he has made the disclaimer in absolute and unconditional terms.-De Uprey vs. De Uprey, 27 Cal., p. 329. 9. WIFE MUST BE BROUGHT IN IN ACTION TO FORECLOSE MORTGAGE ON HOMESTEAD.-In an action to foreclose a mortgage against a husband where the defendant sets up the right of homestead, the Court should order the wife of defendant to be brought in as a party, as no decision upon the question of homestead can be conclusive, either upon the husband or the wife, unless both are parties.-Marks vs. Marks, 9 Cal., p. 96. 10. EVEN ACCOMMODATION GRANTEES AND FICTITIOUS DEPOSITARIES OF TITLE MAY BE BROUGHT IN.Although some of the parties may be mere accommodation grantees and fictitious depositaries of title, still they have a right to be heard at law in their own defense, before Courts of chancery can pronounce definitely on their claims.-Knowles vs. Inches, 12 Cal., p. 213. 11. WHO ARE UNNECESSARY PARTIES AND NEED NOT BE BROUGHT IN.-See Peralta vs. Simon, 5 Cal., p. 313. 12. IF PERSONS ARE NOT MADE PARTIES THEY ARE UNAFFECTED BY JUDGMENT.-Persons not parties to a suit in ejectment and in possession before and at the time it is brought, or those claiming under them, cannot be ousted by the writ of restitution issued upon a judgment therein in favor of the plaintiff.-See, also, for other particulars, Sampson vs. Ohleyer, 22 Cal., p. 200. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. SECTION 392. Certain actions to be tried where the subject or some part thereof is situated. 393. Other actions, where the cause or some part thereof arose. 394. Place of trial of actions against counties. 395. Other actions, according to the residence of the parties. 397. Place of trial may be changed in certain cases. 392. (§ 18.) Actions for the following causes must be tried in the county in which the subject of Amended 1875-6. CODE OF CIVIL PROCEDUre. the action, or some part thereof, is situated, subject to the power of the Court to change the place of trial, as provided in this Code: 257 Certain be tried actions to where the 1. For the recovery of real property, or of an es- situated. tate 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. Where the real property is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action. NOTE.-1. ACTIONS TO FORECLOSE MORTGAGES- 2. RESIDENCE OF PARTIES IN ACTIONS CONCERNING 3. MINING CLAIMS ARE WITHIN THE PROVISIONS OF THIS SECTION.-See Hughes vs. Devlin, 23 Cal., p. 506, affirming Watts vs. White, 13 Cal., p. 324. 4. NOT APPLICABLE TO PROBATE PROCEEDINGS.— This section does not apply to probate proceedings.Estate of Chas. G. Scott, 15 Cal., p. 220. 5. COURT IS NOT BOUND, ON ITS OWN MOTION, TO CHANGE THE VENUE-IT IS A MATTER OF RIGHT AS TO THE PARTIES, HOWEVER.-For convenience, parties have a right to a trial of particular cases in particular counties. There is a mere privilege, which may be waived by those entitled to it. It must be claimed at the proper time and in the proper way. It is not, by our statute, matter in abatement of the writ, but a mere privilege of trial of the suit in the given county. 33-VOL. I. Other actions, where the cause or The party desiring a change of venue should move the Court to change the place of trial, and then the Court, in the proper case, has no discretion to refuse the motion. It seems to be a matter of peremptory right. We think the Court is not bound, of its own motion, to change the venue, and overrule so far the case of Vallejo vs. Randall, 5 Cal., p. 461, if that case is to be so construed.-Watts vs. White, 13 Cal., p. 324. 393. (§ 19.) Actions for the following causes must be tried in the county where the cause, or some part some part thereof, arose, subject to the like power of the Court thereof arose. Place of trial of actions against counties. to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, 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 in virtue of his office; or against a person who, by his command or in his aid, does anything touching the duties of such officer. 394. NOTE. The second subdivision of this section, which provides that actions against a public officer for acts done by him in virtue of his office, shall be tried in the county where the cause, or some part thereof, arose, applies only to affirmative acts of the officer, by which, in the execution of process, or otherwise, he interferes with the property or rights of a third person, and not to mere omissions or neglect of official duty.— Elliott vs. Cronks, Adm., 13 Wend., p. 35; Hopkins vs. Heywood, id., p. 265; McMillan vs. Richards, 9 Cal., p. 420. Actions against counties may be commenced and tried in any county in the Judicial District in which such county is situated, unless such actions are between counties, in which case they may be commenced and tried in any county not a party thereto. NOTE.-Stats. 1854, p. 194. actions, to the residence of the parties. 395. (§ 20.) In all other cases the action must Other be tried in the county in which the defendants, or according some of them, reside at the commencement of the action; or, if none of the defendants reside in the State, or, if residing in this State, the county in which they reside is unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if the defendant is about to depart from the State, such action may be tried in any county where either of the parties reside or service is had; subject, however, to the power of the Court to change the place of trial as provided in this Code. NOTE.-1. CORPORATION HAS A RESIDENCE where its principal office or place of business is established, and is included within the provisions of this section.Jenkins vs. Cal. Stage Co., 22 Cal., p. 538; see, also, Louisville R. R. Co. vs. Letson, 2 How. U. S., p. 497; Ang. & Ames on Corp., pp. 6, 265, 404-407, 440. 2. ACTION TRIED WHERE DEFENDANT RESIDES.Defendant has a right to have the case tried in the county where he resides, except in the cases otherwise provided by this Code.-Lochr vs. Latham, 15 Cal., p. 418. 3. WHEN A PUBLIC OFFICER IS DEFENDANT.See Sec. 393, ante, and note. 4. NOT APPLICABLE TO PROBATE PROCEEDINGS.This section does not apply to probate proceedings.See Estate of Charles G. Scott, 15 Cal., p. 220. 5. HABEAS CORPUS NOT TO RUN OUT OF COUNTY.The writ of habeas corpus should not issue to run out of the county, unless for good cause shown-as the absence, disability, or refusal to act of the local Judgeor other reason showing that the object and reason of the law requires its issuance.-Ex Parte Ellis, 11 Cal., p. 225. 396. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and |