debts.1 187 In an action by a number of stockholders against the officers of a corporation for an accounting, the corporation is a necessary party plaintiff, since any judgment against defendants must be in favor of the corporation, and a judgment cannot be rendered in favor of one not a party to the action.188

An unauthorized levy of an assessment and threat to sell stock for delinquency therein is sufficient cause for action against the directors, but if attempt is made to have corporate notes executed by the directors to and in favor of a bank set aside for fraud, the bank itself is a necessary party.189

187 Waller v. Hamer, 65 Kan. 168, 69 Pac. 185.

188 Peck v. Peck, 33 Colo. 421, 80 Pac. 1063.

189 McConnell v. Comb. Min. & Mill. Co., 31 Mont. 563, 79 Pac. 248.

CHAPTER VII.

SUBSTITUTION OF PARTIES AND PLEADINGS.

§ 58. In general.—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 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. It has been the uniform practice in California to permit the substitution to be made, on the suggestion of the death of the former party and satisfactory proof, on an ex parte motion, of the appointment and qualification of the administrator.2 In ejectment, if plaintiff parts with the title pending the action, it may be continued in his name unless the grantee applies to be substituted. In an action of replevin, where the defendant pleaded title and right of possession to the property, the court properly allowed the action upon the defendant's death to be continued by his personal representative. And if one purchases from the lessor of a defendant in ejectment, the purchaser is entitled to continue the defense either in the name of the tenant, or to be substituted in his place. In ejectment, the cause of action survives on the death of a party.

1 Cal. Code Civ. Proc., § 385; Alaska Codes, pt. 4, c. 3, §§ 3, 7; Ariz. Civ. Code, pars. 1296-1313; Idaho Rev. Codes, § 4108; Mont. Rev. Codes, §§ 6494, 6495; Nev. Comp. Laws, § 3111; N. Mex. Comp. Laws, § 2685; Or. B. & C. Codes, §§ 38-41; Utah Rev. Stats., §§ 2920-1; Wash. Bal. Codes, 4837; Wyo. Rev. Stats., § 3465.

2 Taylor v. Western Pacific R. R. Co., 45 Cal. 337. See, also, Johnson v. Superior Court, 60 Cal. 578; Strong v. Eldridge, 8 Wash. 595, 36 Pac. 696;

Campbell v. West, 93 Cal. 653, 29 Pac. 219.

3 Camarillo v. Fenlon, 49 Cal. 202; Barstow v. Newman, 34 Cal. 90; Moss v. Shear, 30 Cal. 467. See Smith v. Harrington, 3 Wyo. 503, 27 Pac. 803. Substitution of execution creditor as defendant in replevin. France v. First Nat. Bank, 3 Wyo. 187, 18 Pac. 748.

4 O'Neill v. Murry, 6 Dak. 107, 50 N. W. 619.

5 Mastick v. Thorp, 29 Cal. 446. • Barrett v. Birge, 50 Cal. 655.

Where all the parties are before the court, in an action that should be prosecuted by the heirs of a decedent, it is proper to permit them to be substituted to prosecute such action, in lieu of the administrator, who has no right to maintain it."

§ 59. Bankruptcy.-The bankruptcy of a party against whom a judgment has been rendered, though adjudicated before appeal taken, will not prevent the prosecution of the appeal in his name. The appeal may be prosecuted either in the name of the bankrupt or of his assignee.

§ 60. Transfer of interest.—The California statute authorizing the substitution of parties upon transfer of interests, is permissive and appeals to the discretion of the court. That claus of section 121 of the New York code, which provides that 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, contemplates a transfer other than by death-contemplates an existing, pending action, and the substitution of one person in the place of another.10 Under the Oklahoma statute (Stats. 1893, § 3912) authorizing the continuance of an action in the name of the real party in interest, the court may order the substitution of a person to whom the interests of an original party have been transferred.11 After the issues in a cause are all made up, a person claiming to be assignee of a cause of action may be substituted as plaintiff, and if so substituted, need not file a supplemental complaint; he takes the place of the original plaintiff, who ceases to be a party to the suit.12 It is otherwise, however, under the Washington statutes.18 Where a person claiming to be assignee of a cause of action is substituted as plaintiff, and the cause proceeds and a judgment is rendered in his name, it is too late to

7 Farrell v. Puthoff, 13 Okla. 159, 74 Pac. 96.

8 O'Neil v. Dougherty, 46 Cal. 575. Substitution of receiver for defendant. See Jackson v. Dines, 13 Colo. 90, 21 Pac. 918.

Code Civ. Proc., § 385; Fay v. Steubenrauch, 138 Cal. 656, 72 Pac.

156.

10 Kissam v. Hamilton, 20 How. Pr.

369. But see Cal. Code Civ. Proc., § 385.

11 Anderson v. Ferguson, 12 Okla. 307, 71 Pac. 225.

12 Virgin v. Brubaker, 4 Nev. 31; Warren v. Robison, 25 Utah, 205, 70 Pac. 989.

13 §§ 4824, 4837; Powell v. Nolan, 27 Wash. 318, 67 Pac. 612, 68 Pac. 389.

object in the appellate court that he did not file a supplemental complaint showing his interest.14

In the practice, where the names of the parties to an action have to be changed, it is usually done by suggestion or stipulation only; for in the case of the death of one of the parties, or marriage of one of them, the labor of drawing up formal affidavits and petitions is by our practice generally dispensed with.15

§ 61. Death, effect of.—If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is not a lien on real estate, but must be paid in due course of administration.16 In such case, however, it is error to move for new trial or to take appeal, without suggesting the death and bringing in the representative of the deceased, of which such representative must be notified." If such representative is substituted on motion of the adverse party but no notice is given to him, and he does not appear, and the deceased is named in the judgment, the executor is not affected by it, and the judgment as to him is a nullity.18 The death of the wife without issue after suit brought by herself and husband for the homestead defeats a recovery by the husband, though the right to recover existed at the commencement of the suit.1

19

§ 62. Partition. In a suit in chancery for partition, one of the defendants died after the bill had been taken as confessed as against him. The suit was prosecuted to judgment without bringing in his heirs (who were not parties to the suit), and after sale under the judgment and delivery of the master's deed, an order was made reviving the suit against his heirs, who thereafter made application to the court in relation to the disposition of the proceeds; it was held that the heirs were not bound by the decree. By the death of their ancestor the action became defective, and the title which he had at the time of his death could not be

1. Virgin v. Brubaker, 4 Nev. 31; Substitution of transferee of interest. See Smith v. Harrington, 3 Wyo. 505, 27 Pac. 803; Malone v. Big Flat etc. Mining Co., 93 Cal. 384, 28 Pac. 1063.

5 But see Cal. Code Civ. Proc., §§ 370, 385.

16 Cal. Code Civ. Proc., § 669.

17 Judson v. Love, 35 Cal. 463; Shartzer v. Love, 40 Cal. 93.

18 McCreery v. Everding, 44 Cal. 284; Symes v. Charpiot, 17 Colo. App. 463, 69 Pac. 312.

19 Gee v. Moore, 14 Cal. 472.

affected without bringing in those who succeeded to his interests.20

§ 63. Practice. The death of a party pendente lite should be made known by suggestion of that fact to the court, and the action continued by order of the court against the representative of the party deceased, of which he must be duly notified before he can be affected by further proceedings in the action. Where, in an action by J. against L. and others, L. died after verdict rendered for defendants, and thereafter J. moved for a new trial, without suggestion made of the death of L., or substitution of his successor in interest, and appealed from the judgment rendered on the verdict and an order denying a new trial, it is held that all said proceedings, except the rendition of judgment upon said verdict, were void, and that the appeal as to L. should be dismissed. Where a party litigant dies after a verdict, the authority of the attorney to act for him is thereby determined, and he can neither give nor receive notice of motion for new trial or appeal."1

§ 64. Order conclusive.-An order of revivor in the name of A. "as executor" of a deceased plaintiff, standing in full force at the time of the trial, is conclusive to show that the action has been properly revived, and that A. can recover all that the testator might have recovered.22

§ 65. Substitution of parties-Matters of practice, etc.-Application for substitution must be made without unreasonable delay.23 Where, after the commencement of an action, the plaintiff has become insane, it is error to substitute his guardian as sole plaintiff, but the suit should be prosecuted in the name of the plaintiff, as an insane person, by his guardian. An erroneous order, making such substitution, should not be given effect as a dismissal of the action as to the incompetent plaintiff.25 Where, pending an action, there is a transfer of interest which is set up

20 Randall v. Mumford, 18 Ves. 424; Story's Eq. Pl., §§ 329, 331, 354, 369; Hind's Ch. Pr. 46; Kelly v. Hooper, 3 Yerg. 395; Garr v. Gomez, 9 Wend. 649; Mandeville v. Riggs, 2 Pet. 482, 487, 7 L. Ed. 493.

21 Judson v. Love, 35 Cal. 463; Symes v. Charpiot, 17 Colo. App. 463, 69 Pac. 312.

24

22 Underhill v. Crawford, 29 Barb. 664, s. c., 18 How. Pr. 112.

23 Switzer v. Eadie, 71 Kan. 859, 80 Pac. 961.

24 Justice v. Ott, 87 Cal. 530, 25 Pac. 691; O'Shea v. Wilkinson, 95 Cal. 454, 30 Pac. 588.

25 Dixon v. Cardozo, 106 Cal. 506, 39 Pac. 857.