wise any proceedings which may be had or judgment rendered are absolutely void.3 103. Place of Trial of Actions to Foreclose Immovable Property Encumbrances. When the plaintiff in an action to foreclose an encumbrance prays in his complaint for an injunction pending the action, or applies pending the action for an injunction, the proper county for the trial is the county in which the defendant or a majority of the defendants reside at the time of the commencement of the action. In all other cases, an action to foreclose an immovable property encumbrance must be tried in the county in which the subject of the action is situated, subject to the power of the court to change the place of 3 Otherwise Proceedings Absolutely Void.-"A court cannot, by any decision that it may make, whether implied or direct, acquire jurisdiction over a subject matter that has been denied to it by the constitution, and whenever it appears upon the face of the judgment that it was rendered upon a subject over which the court could have no jurisdiction, such judgment has no validity": Rogers v. Cady, 104 Cal. 288, 292, 43 Am. St. Rep. 100, 38 Pac. 81. Practice. When it appears from the description of lands set forth in the complaint that they are not in the county in which the action is commenced, the action should be dismissed: Fritts v. Camp, 94 Cal. 393, 398, 29 Pac. 867; Rogers v. Cady, 104 Cal. 288, 292, 43 Am. St. Rep. 100, 38 Pac. 81. This rule holds in an action to foreclose a vendor's lien: Urton v. Woolsey, 87 Cal. 38, 25 Pac. 154. trial as provided by law. Where the immovable 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 the action.4 4 Place of Trial.-Code of Civil Procedure, section 392: "Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof is situated, subject to the power of the court to change the place of trial, as provided in this code: (1) for the recovery of real property . . . .... (3) for the foreclosure of all liens and mortgages on real property. When 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; provided, that in the case mentioned in this subdivision, if the plaintiff prays in his complaint for an injunction pending the action, or applies pending the action for an injunction, the proper county for the trial shall be the county in which the defendant resides or a majority of the defendants reside at the commencement of the action." As amended in effect March 19, 1889. The corresponding section of the Practice Act was section 18. See, also, Vallejo v. Randall, 5 Cal. 461; Watts v. White, 13 Cal. 324; Baker v. Fireman's Fund Ins. Co., 73 Cal. 182, 14 Pac. 686 (the mortgagor here being a corporation); Goldtree v. McAlister, 86 Cal. 93, 105, 24 Pac. 801. Unless, however, the cause of action set forth in the complaint falls wholly within the provisions of this section or is otherwise the subject matter of a local action, the plaintiff cannot deprive the defendant of his general right to have the action tried in the county of his residence by uniting in his complaint matters which form the subject of a local action with matters which form the subject of a personal action. The right to have the action tried in the county where the property is located being an exception to the general rule, the conditions under which the exception is claimed must be clearly and distinctly shown: Smith v. Smith, 88 Cal. 572, 26 Pac. 356. Conversely, where the plaintiff sought to have a deed absolute in form declared a mortgage, and to obtain an accounting from the defendant on the ground that he was a mortgagee in possession, the action is properly brought in the county of the residence of the defendant, although a foreclosure of the mortgage could not there be obtained: Penin. etc. Fishing Co. v. Pac. Steam Whaling Co., 123 Cal. 689, 695-697, 56 Pac. 604. In providing that an action for the foreclosure of a mortgage should be commenced and tried in any county in which any part of the mortgaged property is situated, it was the intention of the legislature that the mortgage should be wholly foreclosed in such county; that is to say, that every judicial, ministerial, and executive official act necessary to effect a foreclosure might be performed in any county in which any part of the mortgaged property was situate: Goldtree v. McAlister, 86 Cal. 93, 106, 24 Pac. 801. ARTICLE 4. PARTIES IN ACTIONS AGAINST IMMOVABLE PROPERTY,1 104. Indispensable parties. 105. Necessary parties. 106. Proper parties. 107. Certain persons need not be made parties. 108. Right to intervene must affirmatively appear. 109. Holder of interest in property when necessary party, but not joined, not affected by judgment. 110. Encumbrancer when necessary party, but not joined, may redeem. 111. Relief may be granted purchaser when necessary party not joined. 104. Indispensable Parties. In an action to foreclose an encumbrance created for security only, a person personally liable 1 Parties in Actions Against Immovable Property.The cases cited in this article are almost entirely cases of actions brought for the foreclosure of mortgages. There can be little doubt, however, that the same rules apply in actions for the foreclosure of all sorts of encumbrances against immovable property, in the absence of special statutory provisions. That this statement holds in actions for the foreclosure of mechanics' liens has been expressly held. In Whitney v. Higgins, 10 Cal. 547, 70 Am. Dec. 748, the court said: "The principles which govern as to parties in those suits [which are brought to foreclose mortgages] apply equally to suits for the enforcement upon the secured obligation against whom a deficiency judgment is demanded2 [or who is the of a mechanic's lien" (p. 553). And again, the court said: "Though the lien of mechanics is purely the creature of the statute, a decree for the sale of the premises in its enforcement has the same and no greater effect upon the rights of purchasers and encumbrancers, prior to the commencement of suit, than a similar decree would have upon the foreclosure of a mortgage. If such purchasers or encumbrancers are not made parties, they are, in no respect, bound by the decree or proceedings thereunder. A mortgage, in this state, is only a lien or encumbrance; the estate in the land remains in the mortgagor, and all persons interested in the estate at the time the suit is instituted to enforce the mortgage, whether purchasers, heirs, devisees, remaindermen, reversioners, or encumbrancers, should be made parties, or their rights will not be affected. The same is true as to suits to enforce a mechanic's lien" (p. 551). Historical.-Under the Mechanic's Lien Statute of 1856, as amended 1861, a mechanic's lien was enforced by a special statutory proceeding not subject to the rules as to parties of an action to foreclose a mortgage, hence a mortgagee could not intervene: Van Winkle v. Stow, 23 Cal. 457, 459, 460. 2 Person Personally Liable Against Whom Deficiency Judgment Demanded Indispensable Party.When a mortgagee asks for an order of sale, and then for a deficiency judgment, the mortgagor has an interest not only in the amount of the judgment, but in the conduct of the sale of the property and the amount it sells for, and therefore is a necessary party: Belloc v. Rogers, 9 Cal. 123, 125, 126. Where the plaintiff brings in a party personally liable into a pending action to foreclose a mechanic's lien after the time for commencing a foreclosure action has elapsed, the owner suffers no prejudice thereby, and has no ground for complaint: Green v. Clifford, 94 Cal. 49, 52, 29 Pac. 331. Liens-13 |