joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed. Legislation § 380. 1. Enacted March 11, 1872, and then read: "In an action brought by a person out of possession of real property to determine an adverse claim of an interest or estate therein, the person making such adverse claim and all persons in possession must be joined as defendants." 2. Amended by Code Amdts. 1873-74, p. 295. Citations. Cal. 66/269; 80/465; 83/172; 90/343; 94/466; 118/36. Writ of possession: See post, § 682. Fresh parties, bringing in: See post, § 389. Parties holding title under a common source, when may join. § 381. Any two or more persons claiming any estate or interest in lands under a common source of title, whether holding as tenants in common, joint tenants, coparceners, or in severalty, may unite in an action against any person claiming an adverse estate or interest therein, for the purpose of determining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or of removing a cloud upon the same. Legislation § 381. 1. Enacted March 11, 1872 (based on Stats. 1867-68, p. 158), and then read: "Persons claiming an interest in lands under a common source of title may unite as plaintiffs in an action against any person claiming an adverse interest therein, for the purpose of determining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or for removing a cloud thereon." 2. Amended by Code Amdts. 1873-74, p. 295. Citations. Cal. 58/182; 83/351; 129/61; 137/306; 149/636; 152/644. Ejectment: See § 738, post, and ante, § 379. Quieting title: See post, § 738. Joint tenants: See post, § 384. Parties in interest, when to be joined. When one or more may sue or defend for the whole. § 382. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a 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 numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Legislation § 382. Enacted March 11, 1872; based on Practice Act, § 14 (New York Code, § 119), which had the word "shall" instead of "must" before "be joined." Citations. Cal. 58/183, 184; 60/532; 69/621; 74/442; 77/248, 249; 79/ 872; 94/581; 95/256; 104/7, 8, 10; 110/460; 129/243; 136/614, 635, 639; 144/29; 152/295; 153/464. App. 2/135, 140; 3/22; 5/643, 709. Prac. Act: Cal. (§ 14) 1/174; 3/87; 7/333; 8/516; 18/322. Joinder, misjoinder, non-joinder: Post, § 430. Executors, etc., not qualified need not be joined: Post, § 1587. Plaintiff may sue in one action the different parties to commercial paper or insurance policies. §383. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff; and all or any of them join as plaintiffs in the same action, concerning or affecting the obligation or instrument upon which they are severally liable. Where the same person is insured by two or more insurers separately in respect to the same subject and interest, such person, or the payee under the policies, or the assignee of the cause of action, or other successor in interest of such assured or payee, may join all or any of such insurers in a single action for the recovery of a loss under the several policies, and in case of judgment a several judgment must be rendered against each of such insurers according as his liability shall appear. Legislation § 383. 1. Enacted March 11, 1872, in the exact language of Practice Act, § 15 (New York Code, § 120), and then read: "Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff." 2. Amended by Stats. 1897, p. 19, to read: "Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and pron.issory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff; and all or any of them join as plaintiffs in the same action, concerning or affecting the obligation or instrument upon which they are severally liable." 3. Amended by Stats. 1903, p. 203. Citations. Cal. 48/236; 58/100; 65/387; 73/270; 75/634; 81/653; 93/ 58; 94/93; 101/420; 118/420; 120/690; 123/440; 125/686; 135/648; 136/ 302. App. 1/482; 3/22. Prac. Act: Cal. (§ 15) 1/176; 6/183; 13/86; 24/382; 25/526. Judgment for or against one or more of several parties: See post, §§ 414, 578, 579. Tenants in common, etc., may sever in bringing or defending actions. § 384. All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. Legislation § 384. Enacted March 11, 1872; based on Stats. 1867, p. 62. Citations. Cal. 61/362; 80/630; 91/598; 110/425; 136/635; 137/526, 139/562; 145/480. Co-claimants, united as plaintiffs: Ante, § 381. Action, when not to abate by death, marriage, or other disability. Proceedings in such case. § 385. An action or proceeding does not abate by the death, or any 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 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 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. Legislation § 385. 1. Enacted March 11, 1872; based on Practice Act, § 16 (New York Code, § 16), which read: "An action shall not abate by the death, 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, or other disability of a party, the court, on motion, 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 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." When enacted in 1872, the section read as at present, except that the words "death or any disability" then read "death, marriage, or other disability," in both instances. 2. Amended by Code Amdts. 1873-74, p. 295. Citations. Cal. 46/576; 50/659; 54/203, 387; 58/34; 64/82, 430, 476, 596; 65/388; 66/42, 445; 68/420; 72/266; 76/409; 77/648; 79/334; 80/ 264; 87/27; 93/390, 656; 98/125; 99/510; 111/32; 112/643; 116/276; 117/ 581; 123/253, 254; 124/142, 143, 145, 307; 128/269; 132/454, 456: 133/ 256; 135/224; 138/587, 657; 139/420; 140/179; 142/143; 146/654; 150/581; 150/611; 153/221. Prac. Act: Cal. (§ 16) 5/282; 29/372, 377; 30/475, 476; 81/336; 32/119; 49/208; 50/659; 64/596. If party die, judgment against his representative must be that he pay in due course of administration: Post, § 1504. Necessity for claiming against estate of deceased: Post, §§ 1493, 1502. Another person may be substituted for the defendant. Conflicting claims, how made. § 386. A defendant, against whom an action is pending upon a contract, or for specific personal property, may, at any 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. And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to in terplead and litigate their several claims among themselves. The order of substitution may be made and the action of interpleader may be 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. Legislation § 386. 1. Enacted March 11, 1872; based on Practice Act, § 658, as amended by Stats. 1854, Redding ed. p. 72, Kerr ed. p. 102, § 70, which had the word "due" before "notice to such person," and with this omission the section was enacted in 1872, ending with the words "make the order." 2. Amended by Stats. 1881, p. 19, (1) changing the word "such" before "contract" and before "property" from the words "the same," and (2) adding the rest of the section after the words "make the order." 3. Amendment by Stats. 1901, p. 126; uncon stitutional: See note, § 5, ante. Citations. Cal. 59/273; 65/160; 66/42; 69/153, 155; 72/234, 516; 73/ 303; 74/257; 75/543; 111/376, 393; 123/110; 127/518; 131/325; 133/643; 187/70; 141/102; 142/113. App. 1/481; 2/232; 3/185; 6/586; 7/188, 189. Intervention, when it takes place, and how made. § 387. At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person 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 within ten days from the service thereof, if served within the county wherein said action is pending, or within thirty days if served elsewhere. Legislation § 387. 1. Enacted March 11, 1872; based on Practice Act, §§ 659-661 (Stats. 1854, Redding ed. p. 73, Kerr ed. p. 102, §§ 71-73), which read: “§ 71 [§ 659]. Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties, to the action or an interest against both. An intervention takes place, when a third person is permitted to become a party to an action 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 defendant." "§ 72 [§ 660]. A third person may intervene either before or after issue has been joined in the cause." " 73 [§ 661]. The intervention shall be by petition or complaint, filed in the court in which the action is pending, and it must set forth the grounds on which the intervention rests; a copy of the petitions or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action." When enacted in 1872, the section read the same as when amended by Code Amdts. 1873-74, p. 296, down to the words "action or proceeding," the section ending, after these words, with the clause, "who may answer it as if it were an original complaint." 2. Amended by Code Amdts. 1873-74, p. 296, and then read: "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 person is permitted to become 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." 3. Amendment by Stats. 1901, p. 127; unconstitutional: See note, § 5, ante. 4. Amended by Stats. 1907, p. 703; the code commissioner saying, "The amendment consists in adding the words, 'within ten days from the service thereof, if served within the county wherein said action is pending, or within thirty days if served elsewhere,' thus removing any ambiguity respecting the time within which the complaint in intervention must be answered." Citations. Cal. 52/511; 53/744; 57/77; 58/355; 60/125; 61/556; 63/5, 562; 64/476; 66/73; 93/319; 97/455; 101/331, 332; 104/6, 7, 8; 108/222; 111/392; 112/651; 114/373; 121/261; 123/255; 126/318; 128/635; 130/44; 131/92; 132/290; 137/477; 140/377; 144/728. App. 1/150; 2/135; 5/583, 584. Associates may be sued by name of association. § 388. When two or more persons, associated in any business, transact such business under a common name, 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, and the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability. Legislation § 388. 1. Enacted March 11, 1872; based on Practice Act, § 656 (Stats. 1854, Redding ed. p. 72, Kerr ed. p. 102, § 68), reading as at present down to the words "more of the associates," the section then proceeding, "but the judgment in such case shall bind only the joint property of the associates." When enacted in 1872, the section read the same as now, except for the clause, "and the individual property of the party or parties served with process." 2. Amendment by Stats. 1901, p. 127; unconstitutional: See note, § 5, ante. 3. Amended by Stats. 1907, p. 704; the code commissioner saying, "The words 'and the individual property of the party or parties served with process' have been added, thus avoiding multiplicity of suits." Citations. Cal. 55/367; 67/146, 147, 569; 69/458, 621; 73/391, 893; 94/ 299, 300, 302; 115/508; 123/647; 136/302; 139/177. Partners under fictitious name must file certificate: See Civ. Code, §§ 2466 et seq. Court, when to decide controversy or to order other parties to be brought in. § 389. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or |