ing, deteriorating, or destroying it, is an injury, for which he is entitled to redress.

For a wrong with respect to any of these rights, there is a remedy against the wrongdoer; the person injured has a remedy by due course of law. Due course of law requires that the party or parties entitled to the remedy shall apply for it to a competent court, in an action or proceeding against the proper parties in the form and manner prescribed. And if there be an admitted wrong, the courts will look far to apply the remedy.

§ 2. Remedies. While, under the code system of procedure, all distinctions between forms of action to secure redress for wrongs are abolished, in all or nearly all of the code states there has been a division of judicial remedies into-1. Actions; 2. Special proceedings; 3. Provisional remedies. In California the division has been made into actions and special proceedings;" but provisional remedies are recognized and enforced as incidents. to actions.

§ 3. Actions.-Broadly speaking, an action is any proceeding in a court of justice in which a person pursues his remedy to recover a right or claim; any proceeding in which a right is litigated between parties and the decision of a court is sought. It is clear that these definitions are sufficiently comprehensive to cover any conceivable proceeding before a court. But the scope of the term is narrowed by the definition in the codes, which make the division of judicial remedies above mentioned. For the purposes

of this division, an action is defined to be "an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."s

To come within the meaning of the term "action" as thus used, the proceeding must be an ordinary proceeding. All other than ordinary proceedings are declared to be special proceedings.9

§ 4. Of the division of actions.-Actions are of two kinds: civil and criminal. Of the two classes, we are concerned only Iwith civil actions.

Estee's Pl. & Pr., § 1.

De Lima v. Bidwell, 182 U. S. 176, 21 Sup. Ct. 743, 45 L. Ed. 1041. 7 Cal. Code Civ. Proc., § 21.

8 Cal. Code Civ. Proc., § 22; N. Y. Code Civ. Proc., § 2.

9 Cal. Code Civ. Proc., § 23; N. Y. Code Civ. Proc., § 4.

A civil action arises out of an obligation or an injury. The obligation giving rise to the action may itself result from contract or operation of law. An injury may be to person or to property.

In this connection it is to be observed that there is a distinction between the term "action" and the suit in which the action is enforced. "The action springs from the obligation, and hence the cause of action is simply the obligation. . . . The obligation may be either ex contractu or ex delicto. . . . The cause of action is to be distinguished, also, from the remedy, which is simply the means by which the obligation or the corresponding action is effectuated."10 Under the Oregon code, the term "civil actions" includes actions at law and suits in equity, and all other judicial controversies in which rights of property are involved, and is employed in contradistinction to "criminal actions." In Colorado, proceedings for the violation of town or city ordinances are civil actions.12

While habeas corpus cannot be said to be an action under the narrow code definition of "action," it is to be noted that in a general division of proceedings into civil and criminal, habeas corpus should be classed as a civil proceeding, although instituted to secure freedom from custody under a criminal proceeding.13

§ 5. Special proceedings.-The code definition of a special proceeding as any remedy other than an action is not so vague as may at first appear. As was said by the New York supreme court, "An action is defined to be an ordinary proceeding, and this definition can hardly be said to embrace a proceeding which is purely statutory and new, and which is conducted in no respect according to the ordinary forms of the common law; the whole proceeding is peculiar, and is unknown to our courts, except by statutory provision."14 The distinction is even more clearly brought out in a Montana case, where the court says: "A civil action is an action wherein an issue is presented for trial, formed by the averments

10 Frost v. Witter, 132 Cal. 426, 84 Am. St. Rep. 53, 64 Pac. 705.

11 In re Fenstermacher v. State, 19 Or. 504, 25 Pac. 142.

12 Walton v. Cañon City, 13 Colo. App. 77, 56 Pac. 671; City of Durango v. Reinsberg, 16 Colo. 327, 26 Pac. 820.

13 Ex parte Tom Tong, 108 U. S. 560, 2 Sup. Ct. 871, 27 L. Ed. 826; In re Borrego, 8 N. Mex. 657, 46 Pac. 211. In the California code, habeas corpus is placed under the general head of "Special Proceedings of a Criminal Nature." See Pen. Code, § 1473.

14 Hallahan v. Herbert, 57 N. Y. 414.

...

of the complaint and the denials of the answer, or the replication to new matter, and the trial takes place by the introduction of legal evidence to support the allegations of the pleadings. . . . But an action, the issues to which are made up in a summary way, without pleadings, without formal issue, without any definite means of knowing what is to be tried, cannot be dignified by the name of a civil action." 15

17

Besides this distinction, it has been pointed out that, under the practice of some states, civil actions must be commenced by the service of a summons, and that this would seem necessarily to imply that no proceeding not so commenced can properly be deemed a civil action.16 This reasoning would seem at first to apply as well where the law provides that a civil action shall be commenced by filing an initial instrument denominated a complaint. But, while it may be true, in general, that where a code makes the division of judicial remedies we have been considering, a subsequent statute which provides that civil actions are commenced by filing a complaint would seem to contemplate actions as distinguished from special proceedings, such a test cannot be applied with certainty. In most cases special proceedings are instituted by the filing of a writing not properly a complaint; but a proceeding to take property by eminent domain, which has been held to be a special proceeding,18 must be commenced by filing a complaint and issuing a summons thereon.19

Special proceedings, being purely statutory, must conform strictly to the requirements of the statutes authorizing them, or they will fail, and the courts, in exercising jurisdiction in such cases, are limited to the terms and conditions expressed.20 These special proceedings, the nature of the remedy in each case, and the right thereto, will be treated at length in another part of the present work.

§ 6. Provisional remedies.-Provisional remedies are applied, pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject-matter.

15 Deer Lodge County v. Kohrs, 2 Mont. 66.

16 Hyatt v. Seeley, 11 N. Y. 54. 17 Cal. Code Civ. Proc., § 405; Or. B. & C. Codes, § 51.

18 Santa Rosa v. Fountain Water Co., 138 Cal. 580, 71 Pac. 1123, 1136. 19 Cal. Code Civ. Proc., § 1213.

20 Porter v. Purdy, 29 N. Y. 106, 86 Am. Dec. 283; Smith v. Westerfield, 88 Cal. 379, 26 Pac. 206.

Proceedings before judgment or decree, in courts exercising equity powers, to provide for the safety and preservation of property in the possession of an adverse party, or to preserve it during the pendency of an appeal, by the appointment of a receiver or other like officer, and also restraining orders or injunctions, have always existed, independently of statute, as incidents to actions. These proceedings, so far as they are now defined or regulated by statute, as well as others created by statute, are commonly known as "provisional remedies," under the code practice, whether technically so designated or not.21

It is not our purpose to treat of these provisional remedies in detail in this place. The most familiar examples of these remedies are arrest and bail, attachment, injunction, receivers, and replevin, or claim and delivery. All of these, as well as others less commonly known, will be considered elsewhere.

21 See Estee's Pl. & Pr., § 26.

CHAPTER II.

PARTIES TO CIVIL ACTIONS.

§ 7. Who are parties.-To every civil action there are, necessarily, two or more parties: the person who seeks to establish a right in himself, known as the plaintiff, and the person upon whom the corresponding duty or liability is sought to be imposed, known as the defendant. In suits in equity, these parties are frequently designated as complainant and respondent, respectively. In appellate courts, the parties are known as appellant and appellec, or respondent, and in courts of error, as plaintiff in error and defendant in error.

The term "parties," when used in connection with the subject-matter of the issue, is understood to include all who are directly interested, and who, therefore, have a right to make a defense, control the proceedings, or appeal from the judgment. Persons not having these rights are regarded as strangers to the action. The general rules as to parties to civil actions are established, of course, for the convenient administration of justice, and are subject to exceptions; they are more or less a matter of discretion in the court, and ought to be restricted to parties whose interests are involved in the issue and to be affected by the de

cree.

A person cannot be both plaintiff and defendant in the same action. He cannot have a cause of action against himself as debtor or tort-feasor, in whatever different capacities he may act.2

§ 8. Of formal and necessary parties.-Parties to actions are either formal parties, proper but not necessary, or those who are necessary parties, if within the jurisdiction of the court, or those whose interests are so bound up with the interests of other parties before the court that it cannot proceed without them. These latter are commonly known as indispensable parties.

Necessary parties are those who have an interest in the controversy, and who ought to be made parties to the action so that the court may act according to the rule which requires it to hear.

1 Estee's Pl. & Pr., § 124.

2 Byrne v. Byrne, 94 Cal. 579, 29 Pac. 1115, 30 Pac. 196.