sue in one action obligation or instrument, including the parties to bills of Plaintiff may exchange and promissory notes, and sureties on the same or the different separate instruments, may all, or any of them, be included mercial paper. in the same action, at the option of the plaintiff. parties to com sever, in bring SEC. 241. All persons holding as tenants in com- Tenants in common, joint tenants, or coparceners, or any number less than mon, etc., may all, may jointly or severally commence or defend any civil ing or detending action or proceeding for the enforcement or protection of the rights of such party. actions. SEC. 242. An action or proceeding does not abate by Action, when the death or any disability of a party, or by the transfer of not to abate. any interest therein, if the cause of action or proceeding survive or continue. In case of the death, or any disability, of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In the case of any other transfer of interest, the action or proceeding may 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 or proceeding. Substitution. Another person tuted for the SEC. 243. A defendant against whom an action to recover upon a contract, or an action of ejectment, or an may be substi action for specific personal property is pending, may, at any defendant. time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon such contract, or for such property, upon 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 claimed on the contract, 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. Actions against SEC. 244. Whenever conflicting claims are or may be made upon a person for or relating to personal property, conflicting or the performance of an obligation, or any portion thereof, claimants. such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be Substitution maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another. Intervention, when and how. Associates may be sued by ation. SEC. 245. Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third party is permitted to become a party to an action or proceeding between other persons either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court, and served upon the parties to the action or proceeding, who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint. SEC. 246. When two or more persons associated in any business, transact such business under a common name, name of associ- whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon their joint liability. Court when to decide contro versy or to order other parties to be brought in. SEC. 247. The court may determine any controversy between parties 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 cannot be had without the presence of other parties, the court must then order them to be brought in, and thereupon the party directed by the court must serve a copy of the summons in the action, and the order aforesaid in like manner of service of the original summons, upon each of the parties ordered to be brought in, who shall have ten days, or such time as the court may order, after service in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the court may cause his default to be entered, and proceed as in other cases of default, or may make such other order as the condition of the action and justice shall require. 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. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTION. to be tried where SEC. 250. Actions for the following causes must be tried in the judicial district in which the subject of the Certain actions action, or some part thereof, is situated, subject to the the subject or power of the court to change the place of trial, as provided thereof is situ in this Code. 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. Where the real property is situated partly in one judicial district and partly in another, the plaintiff may select either of the judicial districts, and the district so selected is the proper district for the trial of such action. SEC. 251. Actions for the following causes shall be tried in the judicial district where the cause, or some part thereof, arose, subject' to the like power of the court 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 districts, the action may be brought in any district bordering on such lake, river or stream, and opposite to the place where the offense was committed. 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, does anything touching the duties of such officer. some part ated. Other actions where the cause thereof arose. or some part Place of trial of counties. SEC. 252. An action against a county, or between counties, may be commenced and tried in the judicial dis- action against trict where such county or counties are situated; unless such action is between counties situated in different judicial districts, in which case it may be commenced and tried in either district in which one of the counties is situated. Other actions parties. SEC. 253. In all other cases the action must be tried according to the in the judicial district in which the defendants, or some of residence of the them, reside at the commencement of the action; or, if none of the defendants reside in the Territory, or, if residing in this Territory, the judicial district in which they reside is unknown to the plaintiff, the same may be tried in any judicial district the plaintiff may designate in his complaint; and if the defendant is about to depart from the Territory, such action may be tried in any judicial district 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. Action may be dicial district, unless, when. SEC. 254. If the judicial district in which the action tried in any ju- is commenced is not the proper judicial district 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 demands, in writing, that the trial be had in the proper judicial district. Place of trial SEC. 255. The court may, on motion, change the may be changed place of trial in the following cases: certain cases. When judge is disqualified. Cause to be transferred. Papers to be transmitted, costs, etc. 1. When the judicial district designated in the complaint is not the proper district; 2. When there is reason to believe that an impartial trial cannot be had therein; . 3. When the convenience of witnesses and the ends of justice would be promoted by the change; 4. When from any cause the judge is disqualified from acting. SEC. 256. If an action or proceeding is commenced or pending in a court, and the judge or justice thereof is disqualified from acting as such, or if for any cause the court orders the place of trial to be changed, it must be transferred for trial to a court the parties may agree upon by stipulation in writing, or made in open court and entered in the minutes; or if they do not so agree, then to the nearest court, where the like objection or cause for making the order does not exist, as follows: 1. If in the district court, to another district court; 2. If in the probate court, to the probate court of an adjoining county; 3. If in a justice's court, to another justice's court in the same county. SEC. 257. When an order is made transferring an action or proceeding for trial, the clerk of the court, or justice of the peace, must transmit the pleadings and papers therein to the clerk or justice of the court to which it is transferred. The costs and fees thereof, and of filing the papers anew, must be paid by the party at whose instance the order was made. The court to which an action or proceeding is transferred has and exercises over the same Jurisdiction of. the like jurisdiction as if it had been originally commenced therein. in certain cases SEC. 258. When an action or proceeding affecting Proceedings the title to, or possession of real estate has been brought after judgment in or transferred to any district court, other than the dis- transferred. trict in which the real estate, or some portion of it is situated, the clerk of such court must, after final judgment therein, certify, under his seal of office, and transmit to the district court of the district in which the real estate affected by the action is situated, a copy of the judgment. The clerk receiving such copy must file, docket, and record the judgment in the records of the court, briefly designating it as a judgment transferred from court (naming the proper court). TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS, SEC. 262. Civil actions in the courts of this Territory are commenced by filing a complaint. Action, how commenced. Summons. SEC. 263. The clerk must indorse on the complaint Indorsement of the day, month and year that it is filed, and at any time complaint. within one year thereafter, the plaintiff may have a summons issued; and if the action be brought against two or more defendants, who reside in different judicial districts or in different counties within the same or different judicial districts within the Territory, the plaintiff may have a summons issued for each of such counties at the same time. But at any time within one year after the complaint is filed, the defendant may, in writing, or by appearing and answering or demurring, waive the issuing of summons; Waiver of sumor, if the action be brought upon a joint contract of two mons. |