Oct. 11, 1862. When action not to abate. 6 Or. 31. 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. Din gee, 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 aз 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 administra tor; 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 substituted 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 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 equitaLle 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; 2. That they claim the same thing; 3. That he has no beneficial interest in the thing claimed; and 4. That he cannot determine without hazard to himself to which of the claimants the thing of right belongs: Atkinson v. Manks, 1 Cow. 691; Shaw v. Coster, 8 Paige, 339; S. C., 35 Am. Dec. 690. The thing to which adverse claim is made must be one and the same thing: Pfister v. Wade, 56 Cal. 43. To entitle the defendant to relief, the affidavit must show that the whole controversy can be tried in the suit with the substituted defendant: Sherman v. Partridge, 4 Duer, 646; Nelson v. Goree, 34 Ala. 565; that he is indifferent to the claims of either party: Marvin v. Elwood, 11 Paige, 365; Oppenheim v. Wolfe, 3 Sand. Ch. 171; Van Buskirk, v. Roy, 8 How. Pr. 325; Pfister v. Wade, 56 Cal. 43; that he claims no beneficial interest in the subject of the controversy: Atkinson v. Manks, 1 Cow. 691; Anderson v. Wilkinson, 10 Sinedes & M. 601; that he is ignorant of the rights of the adverse claimants: Bell v. Hunt, 3 Barb. Ch. 391. He cannot be substituted as to part and defend as to the rest: Bender v. Sherwood, 15 How. Pr. 258. He must deny collusion with either party: Shaw v. Coster, 8 Paige, 339; S. C., 35 Am. Dec. 690; Marvin v. Ellirood, 11 Paige, 365; Atkinson v. Manks, 1 Cow. 691; but collusion with the party to whose rights plaintiff succeeded, and the claimant, is not ground for refusal of interpleader, if the applicant was not a party thereto: Oct. 11, 1862. Wehle v. Bowery Savings Bank, 40 N. Y. Super. Ct. 97. The applicant must not be a wrong-doer, or in default as to either defendant: N. Y. & N. H. R. R. Co. v. Hows, 35 Id. 372; Shaw v. Coster, 8 Paige, 339; S. C., 35 Am. Dec. 690; McGaw v. Adams, 14 How. Pr. 461. He must not by his own act have placed himself in the position to be sued: United States v. Victor, 16 Abb. Pr. 153; and if a liability is claimed against him, he cannot have such relief: Patterson v. Perry, 14 How. Pr. 505; nor can he be substituted as to part of a claim and defend as to the rest: Bender v. Sherwood, 15 Id. 258. He is not entitled to the relief if he can be protected in any other way: N. Y. & N. H. R. R. Co. v. Hows, 35 N. Y. Sup. Ct. 372 relief ought not to be granted where it clearly appears on the face of the papers that the claim of the third party is frivolous and without validity: Pustel v. Flannelly, 60 How. Pr. 67; or that it is impossible for one o the claimants to succeed: Wilson v. Duncan, 8 Abb. Pr. 354; or if the defendant is not in position to deposit the property in court: Vosburgh v. Huntington, 15 Id. 254. The defendant is not bound to withdraw, it is held, after obtaining an order substituting another person as defendant, but may go on and defend the action: Neill v. Wuest, 17 Id. 319, note. The As to equitable interpleader, see the extended note to Shaw v. Coster, 35 Am. Dec. 695. § 41 [40.] The court may determine any controversy Bringing in between parties before it, when it can be done without new parties. 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. parties to the suit can be determined: McMahon v. Allen, 12 How. Pr. 39. If the action or proceeding can be determined without them, other parties cannot be brought in: Tichenor v. Coggins, 8 Or. 270; Albany City Savings Bank v. Burdick, 87 N. Y. 40; and especially is this the case where defendants are sought to be brought in, and the plaintiff objects: Sawyer v. Chambers, 11 Abb. Pr. 110. It is the duty of the court to bring in Oct. 11, 1862. other parties when a complete deter- When an agreed controversy has 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 bring ing 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. |