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when to be

to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

$ 119. [Sec. 99.] Of the parties to the action, those who Parties are united in interest must be joined as plaintiffs or defend-interest ants; but if the consent of any one, who should have been joined. joined as plaintiff, cannot be obtained, he may be made a Amended defendant, the reason thereof being stated in the complaint, and when the question is one of a common or general interest of many persons; or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend defend for

the whole. for the benefit of the whole.

When one or more

may sue in

$ 120. [Sec. 100.] Persons severally liable upon the same Plaintiff obligation or instrument, including the parties to bills of one action exchange and promissory notes may, all or any of them, be parninseto included in the same action, at the option of the plaintiff.


cial paper.

As to what facts should be stated in the complaint. Spelman and others agt. Weider and others, 5 How. 5.

See Session Laws, 1832, p. 489; Session Laws, 1835, p. 248; Miller vs. McCagg et al. 4 Hill, 35; Paine vs. Chase et al. id. 563; Platner vs. John. son et al. 3 id. 476; The Bank of Genesee vs. Field, 19 Wen. 643; Walace et al. agt. Eaton et al. 5 How. 99.

when not

death, mar

other disa

§ 121. [Sec. 101.] No action shall abate by the death, Action marriage or other disability of a party, or by the transfer to abate by of any interest therein, if the cause of action survive or con-vinge , or

bility. tinue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year Proceedthereafter, or afterwards on a supplemental complaint may allow the action to be continued by or against his repre- Amended sentative 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.

such case.


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to order

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An administrator of a deceased plaintiff may have leave to continue the action if the cause survive. Wing vs. Ketcham, 3 How. 385; S. C. Code Rep. 7.

So far as this section is made applicable to suits, commenced before the code took effect and to transfers of interest made before that time is uncon. stitutional. Vrooman agt. Jones, 5 How. 369.

§ 122. [Sec. 102.] The court may determine any controversy when to decioversy, or between the parties before it, when it can be done without prejuother par- dice to the rights of others, or by saving their rights, but when a brought in. complete determination of the controversy cannot be had without Amended the presence of other parties, the court must cause them to be 1849, 1851.

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 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, may at any time before answer, upon affidavit, that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order.

There is no part of the code which permits a plaintiff to change the parties in the cause without leave of the court. Russell agt. Spear and Butler, 5 How. 142; Wallace and another agt. Eaton and others, id. 99.

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Amended 1849.

Of the place of trial of Civil Actions.
Section 123. Certain actions to be tried where the subject or some part

thereof is situated.
124. Other actions, where the cause or some part thereof arose.
125. Other actions, according to the residence of the parties.
126. Action may be tried in any county unless defendant demand

trial in proper county. § 123. (Sec. 103.) Actions for the following causes, Certain acmust be tried in the county in which the subject of the tried where

or action or some part thereof is situated, subject to the pow- thereof is er of the court to change the place of trial, in the cases provided by statute.

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, distrained for any cause.

For forms in partition suits, see 2 Barb. Chanc. Prac. 698.

The proper county is where the mortgaged premises are situated, although the money may have been loaned and the mortgage papers executed in another county. Miller agt. Hull and wife, 3 How. 325; see Mairs vs. Remsen and others, 3 Code Rep. 138.

$ 124. [Sec. 103.] Actions for the following causes, Other acmust be tried in the county where the cause or some where part thereof arose, subject to the like power of the court, some part to change the place of trial in the cases provided by statute :

1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence 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 offence was committed : [NOTES.]



eause or

thereof arose. Amendod 1849.



Other actions, ac


of the par

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2. «Against a public officer or person specially 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, shall do any thing touching the duties of such officer.

a This applies only to affirmative acts, and not to mere omissions or neglect of official duty. Elliot vs. Cronk's administrators, 13 Wend. 35; Hopkins vs. Haywood, id. 265.

§ 125. (Sec. 104.] In all other cases, the action shall be cording to tried in the county in which the parties or any of them shall

reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute.

Motion to change cannot be made before the issues in the cause are settled. Hartman and others agt. Spencer, 5 How. 135; Mixer vs. Kuhn, 4 How. 409; Lynch and wife agt. Mosher, id. 86; Contra, Myers vs. Feeter, 4 How. 240; Schenck agt. McKie, 4 How. 246.

As to what the moving papers should contain, see Lynch and wife agt. Mosher, 4 How. 86. See also, Beardsley vs. Dickerson, 4 How. 81.

Where the place of trial is changed for the convenience of witnesses, it should be to the county where the witnesses reside, although the court house in a neighboring county is nearer their residence. The People &c. agt. Wright, 5 How. 23.

An order to change the place of trial does not change the venue under the code of 1848 and 1849. Gould and others agt. Chapin and others, 4 How. 185.

See Supreme Court Rules 47, 48. Action may

$ 126. [Sec. 105. If the county designated for that purbe tried in any county, pose in the complaint, be not the proper county, the action

may, notwithstanding, be tried therein, unless the defendant,

before the time for answering expire, demand, in writing, Amended 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, as is provided in this section.

The court may change the place of trial in the following

unless desendant demand trial in

proper county.



1. When the county designated for that purpose in the complaint is not the proper county :

2. When there is reason to believe that an impartial trial can not be had therein :

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

When the place of trial is changed, 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 order of the court, and the papers shall be filed or transferred accordingly.

The venue is to be fixed irrespective of convenience of witnesses. A change of the place of trial for the convenience of witnesses is properly made when the venue has been fixed in the proper county. Moore agt. Gardner, 5 How. 243.

To change the place of trial, application must be made to the court; a de. mand in writing, that the trial be had in the proper county, does not change it. Hasbrouck vs. McAdam, 4 How. 342.

The court could not order an issue of law to be tried out of the county specified in the complaint, previous to amended code of 1851. Gould and others agt. Chapin and others, 4 How. 185.

of the manner of commencing Civil Actions.
SECTION 127. Actions how commenced.

128. Summons, requisites.of.
129. Notice to be inserted in certain actions.
130. Complaint need not be served with summons. In such case

what to be stated in summons and proceedings thereon.
131. Defendant unreasonably defending, when to pay costs-
132. Notice of pendency of action affecting title to real property.
133. Summons, by whom served.
134. Summons, how served and returned.
135. Publication when defendant cannot be found.
136. Proceedings when there are several defendants, and part

only served.
137. When service deemed made in case of publication.
138. Service of summons how proved.

139. When jurisdiction of action acquired. § 127. [Sec. 106.] Civil actions in the courts of record of Actons, this state, shall be commenced by the service of a sum-menced. mons.

how com

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