CHAPTER XXXVI. VENUE. § 982. Definitions of terms.-There are several terms which are synonymous with the word "venue,"-e. g. "the place of trial," "the proper county," "the county where the action must be tried," "the district or county in which the action is triable.” An action is triable only in the county of the venue. It may be in the county selected by the plaintiff when preparing his complaint, or the county to which the venue has subsequently been removed by order of the court.1 In the code states, generally, the distinction between local and transitory actions, so far as any consequence attends it, depends entirely upon statutory law, and does not coincide with or depend upon the distinction between actions in rem and actions in personam. The nature of an action, as concerns its venue, is to be determined from the character of the complaint and of the judg ment which may be rendered on a default. The California code3 provides that actions must be tried in a particular county, the district having reference-1. To the place where the subjectmatter in controversy is situated; 2. To the place where the cause of action arose; 3. To the place where the parties to the action. reside according to the nature of the questions involved. In this respect, the distinction between local and transitory actions is in a measure preserved. Thus real actions or actions affecting real property have a tendency to a fixed and local jurisdiction; while personal actions are transitory in their character. § 983. Venue dependent upon location of subject-matter.Under the codes, generally, the actions which are to be tried where the subject-matter, or some part thereof, is situated, subject to the right to change the place of trial in certain cases, are as follows: Actions for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such 1 Bangs v. Selden, 13 How. Pr. 374. 2 McFarland v. Martin, 144 Cal. 771, 78 Pac. 239; Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157. 3 Code Civ. Proc., §§ 392-396. right or interest, and for injuries to real property; actions for the partition of land; actions for the foreclosure of all liens and mortgages on real property. Where the real property is situated partly in one county and partly in another, the plaintiff may select either of the counties, and the county so selected is the proper county for the trial of such action. The California constitutional provision, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate shall be commenced in the county in which the real estate or any part thereof is situated, applies only to the commencement of the action. Under the laws of Oregon,' an action of replevin is local, and must be prosecuted in the county where the property is contained. On the other hand, a suit for the specific performance of a contract for the purchase of land proceeds in personam, and may be maintained in any court of equity which has jurisdiction of the parties, even if the land lies in another county; and this is true also in Washington. In Washington, all actions for the causes mentioned in section 48 of the laws of 1877, must be commenced in the county or district in which the subject of the action lies; the court of no other county or district has jurisdiction thereof.10 The laws of Arizona include mining claims, but make no provision as to property lying in contiguous counties.11 In California, also, mining claims. are included in this rule.12 The Oklahoma statute13 requiring certain civil actions to be brought in the county in which the subject of the action is situated, was held, so far as it related to resident defendants, to be in conflict with the act of Congress requiring all civil actions to be brought in the county in which the defendants reside.14 These statutes, of course, do not apply to actions for land lying out of the state.15 Cal. Code Civ. Proc., § 392, as amended 1907; Mont. Rev. Codes, § 6501; Colo. Civ. Code, § 25; Idaho Rev. Codes, § 2120; Ariz. Civ. Code, par. 18. 5 Const., art. vi, § 5. Hancock v. Burton, 61 Cal. 70. 7 Or. B. & C. Codes, § 42. 8 Moorhouse v. Donaca, 14 Or. 433, 13 Pac. 112. 9 Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614; Johnston v. Wadsworth, 24 Or. 498, 34 Pac. 13. 10 Wood v. Mastic, 2 Wash. T. 64, 3 Pac. 612. See, also, State v. Superior Court, 5 Wash. 639, 32 Pac. 553. 11 Ariz. Civ. Code, par. 18. 12 Watts v. White, 13 Cal. 321. 13 Code Civ. Proc., § 48. 14 Burke v. Malaby, 14 Okla. 650, 78 Pac. 105. 15 Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Mussina v. Belden, 6 Abb. Pr. 165. - § 984. Transitory actions. Actions against an agent for money had and received, or against a depository of stock in a mining corporation who is pledged to deliver the same to plaintiff, are transitory, and may be brought wherever the defendant can be served with process.16 Transitory actions against non-residents may be commenced in any county that plaintiff may select, and personal service any place in the state will give the court jurisdiction,17 § 985. Actions affecting lands. In determining whether an action is, in effect, an action relating to lands, which must be brought in the county where the land is situated, the court will consider not only the pleadings of the parties, but also the terms of the decree proper to be rendered.18 Instances of actions held. to be local by reason of the fact that they affect real property are the following: Actions to recover damages for injuries done to land;19 an action on contract for the removal of standing timber;20 actions in ejectment;21 actions to condemn lands for the use of a railroad;22 an action to have a deed absolute on its face declared to be a mortgage;23 an action for the reformation of a contract for the sale of land;24 an action to foreclose a vendor's lien;25 an action to set aside a fraudulent conveyance;26 an action to dissolve a mining copartnership, where the determination of the respective interests of the parties in the mining claim is involved in the action;27 an action the object of which is to have the plaintiff adjudged to be the owner of an interest in mining property;28 an action to quiet title to real estate;29 an action to restrain a 16 Sandoval v. Randolph (Ariz.), 95 Pac. 119; Eddy v. Houghton, 6 Cal. App. 85, 91 Pac. 397. 17 Brown v. Lewis, 50 Or. 358, 92 Pac. 1058; Or. B. & C. Codes, § 44. 18 Staacke v. Bell, 125 Cal. 309, 57 Pac 1012; McFarland v. Martin, 144 Cal. 771, 78 Pac. 239. 19 Smith v. Smith, 88 Cal. 572, 26 Pac. 356; McCleod v. Ellis, Wash. 177, 26 Pac. 76; Golden Cross Min. Co. v. Spiers, 115 Cal. 247, 47 Pac. 108. 20 Seymour v. La Furgey, 47 Wash. 450, 92 Pac. 267. 21 Jacks v. Moore, 33 Ark. 31. ern Pacific R. R. Co., 65 Cal. 409, 4 Pac. 388; Pool v. Simmons, 134 Cal. 621, 66 Pac. 872. 23 Baker v. Fireman's Fund Ins. Co., 73 Cal. 182, 14 Pac. 686; Smith v. Smith, 88 Cal. 572, 26 Pac. 356. 24 Franklin v. Dutton, 79 Cal. 605, 21 Pac. 964. 25 Urton v. Woolsey, 87 Cal. 38, 25 Pac. 154. 26 Sloss v. De Toro, 77 Cal. 129, 19 Pac. 233. 27 Clark v. Brown, 83 Cal. 181, 23 Pac. 289. 28 McFarland v. Martin, 144 Cal. 771, 78 Pac. 239. 29 Fritts v. Camp, 94 Cal. 393, 29 threatened injury to land;30 an action to abate a nuisance to land.31 But an action for personal judgment for costs of a party-wall may be changed to the county of the defendant's residence.32 The action may be brought in any county in which any part of the land lies.33 An action for the diversion of water from the plaintiff's ditch may be brought in either of the counties in which such ditch is situated, although the defendant's place of business is in the other county, where the act complained of was committed.34 The right of an owner of a ditch situated in two counties to have water flow therein is coextensive with his right to the ditch; and a diversion of water therefrom in one of the counties is an injury to the real property of the owner in another county.3 It has been held that an action to enforce a logger's lien is properly brought in the county where the logs were cut, and the lien recorded, regardless of the fact that at the time of the action the logs are in another county.36 A complaint which describes the location of the land involved by government subdivisions, and upon a plat which is made part of the complaint, and which thus shows the land to be located, in fact, in another county, warrants the court in taking judicial notice of that fact, notwithstanding there is no averment in the complaint that the lands are situated in the county of the venue.3 37 The mere fact that questions relating to real property may be involved in the action does not of itself make the action local. Thus an action for the enforcement of a trust, and for an accounting thereunder, is transitory, irrespective of the fact that the action will affect real property.38 In Oklahoma, the residence of defendant governs even in cases affecting interests in real Pac. 867; Pacific Yacht Club v. Sausalito Bay Water Co., 98 Cal. 487, 33 Pac. 322. 30 Drinkhouse v. Spring Valley Water Co., 80 Cal. 308, 22 Pac. 252; Last Chance Water Ditch Co. v. Emigrant Ditch Co., 129 Cal. 277, 61 Pac. 960. 31 Marysville v. North Bloomfield Gravel Min. Co., 66 Cal. 343, 5 Pac. 507. 82 Anaheim Odd Fellows Hall Co. v. Mitchell, 6 Cal. App. 431, 92 Pac. 331. 83 Kimball v. Tripp, 136 Cal. 631, 69 Pac. 428. 34 Lower Kings River etc. Co. v. Kings River etc. Co., 60 Cal. 408. 35 Last Chance Water Ditch Co. v. Emigrant Ditch Co., 129 Cal. 277, 61 Pac. 960. 86 Overbeck v. Calligan, 6 Wash. 342, 33 Pac. 825. 37 Waters v. Pool, 130 Cal. 136, 62 Pac. 385. 38 State V. Superior Court, 7 Wash. 306, 34 Pac. 1103; Reese v. Murnan, 5 Wash. 373, 31 Pac. 1027; 40 estate.3 An action in the nature of a creditor's bill, brought to set aside conveyance made by an execution debtor on the ground of fraud, is also a transitory action; as, also, is a creditor's bill to remove a fraudulent mortgage recorded in another county as an obstruction to execution against the property of the defendant in such other county. An action to cancel a contract for the sale of land on the ground of fraud, and for the recovery of the purchase price paid before the discovery of the fraud, is transitory, where it does not appear that the vendee had title to the land."2 An action to recover an unpaid balance of the purchase price of land is transitory, and not local.43 41 § 986. Actions against counties.-An action against a county or city and county may be commenced and tried in such county or city and county, unless the action is brought by a county or city and county, in which case it may be commenced and tried in any county or city and county not a party thereto." In the absence. of special statutory provisions, such suits are governed by the usual rules of civil practice; and where a county was sued in a judicial district of which it did not form a part, but appeared and answered without objection to the jurisdiction, it thereby waived the right to a change of venue to its own jurisdiction.45 Where the ultimate object of a bill in equity is to restrain a county from tearing down a public building in order to erect a new one, such action can only be brought in the county where the land is situated.46 § 987. Place where cause of action arose.-Under the codes, actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed by statute, except that where it is imposed for an offense committed on a lake, river, or stream Le Breton v. Superior Court, 66 Cal. 27, 4 Pac. 777. 39 Burke v. Malaby, 14 Okla. 650, 78 Pac. 105; Mouldin v. Rice, 19 Okla. 589, 91 Pac. 1032. 40 Beach v. Hodgdon, 66 Cal. 187, 5 Pac. 77. 41 Woodbury v. Nevada Southern Railway Co., 120 Cal. 463, 52 Pac. 730. 42 State v. District Court, 94 Minn. 370, 102 N. W. 869. 43 Smith v. Allen, 18 Wash. 1, 63 Am. St. Rep. 864, 50 Pac. 783, 39 L. R. A. 82. 44 Cal Code Civ. Proc., § 394. 45 Clarke v. Lyon County, 8 Nev. 181. 46 Munger v. Crowe, 219 Ill. 12, 76 N. E. 50, 115 Ill. App. 189. |