of Civil Procedure to have personal actions against them tried in the county where the defendant or some of the defendants reside, since there are conditions justifying such discrimination.20 The place of residence of a domestic corporation is in the county where its principal place of business is situated.1

A change of venue may be granted although the action is brought in a county designated by the section of the Constitution, since such section preserves the right of the court to make such change in accordance with legislative enactment." But in the case of transitory actions the corporation has no absolute right to have the action commenced in or removed to the county in which it has its principal place of business merely because it has its residence there, but can only secure a removal "as in other" cases or upon some other legally recognized ground.3 - This section is permissive merely and not mandatory, and does not deprive the superior courts of counties other than those named of jurisdiction over actions against corporations which they would otherwise have. It gives to the plaintiff a privilege which he may waive. While he may bring his action in either of the counties indicated, if he does not do so, but brings it in another county, the constitutional provision has no application, but the code provisions with respect to venue generally will

20. Cook v. W. S. Ray Mfg. Co., 159 Cal. 694, 115 Pac. 318; Lakeside Ditch Co. v. Packard Ditch Co., 50 Cal. App. 296, 195 Pac. 284; Raphael v. People's Bank of Benicia, 45 Cal. App. 115, 187 Pac. 53.

1. See supra, § 126.

2. Grocers' Fruit Growing Union v. Kern County Land Co., 150 Cal. 466, 89 Pac. 120; Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856.

3. Cook v. W. S. Ray Mfg. Co., 159 Cal. 694, 115 Pac. 318; Lakeside Ditch Co. v. Packwood Ditch Co., 50 Cal. App. 296, 194 Pac. 284.

4. Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856; Griffin & Skelly Co. v. Magnolia etc. Co., 107 Cal. 378, 40 Pac. 495; Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157; Bond v. KarmaAjax Con. Min. Co., 15 Cal. App. 469, 115 Pac. 254.

5. Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856; Griffin & Skelly Co. v. Magnolia etc. Co., 107 Cal. 378, 40 Pac. 495; White v. Fresno Nat. Bank, 98 Cal. 166, 32 Pac. 979; Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157; Bond v. Karma-Ajax etc. Co., 15 Cal. App. 469, 115 Pac. 254.

6. Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856; Griffin & Skelly Co. v. Magnolia etc. Co., 107 Cal. 378, 40 Pac. 495.

Chap. XXVI control, and the corporation may have the action removed for trial to the county where it has its principal place of business.8

§ 649. Effect of Joinder of Other Defendants-In General.— The plaintiff is not ipso facto deprived of his right to bring his action in any of the counties enumerated in the Constitution by joining a natural person with the corporation as a defendant. If the action is brought in a county other than that in which the principal place of business of the corporation is located, and hence could not be maintained there except for the fact that one of the defendants is a corporation, the fact that the corporation is a party does not deprive the individual defendant of his right to have the action tried in the county of his residence.10 But unless he asserts such privilege, the right of the plaintiff remains intact.11 Such right is no concern of the co-defendant corporation, and it cannot procure a change of the place of trial to the county of the residence of the individual defendant.12

7. Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856; Griffin & Skelly Co. v. Magnolia etc. Co., 107 Cal. 378, 40 Pac. 495.

8. Byrum v. Stockton etc. Agr. Works, 91 Cal. 657, 27 Pac. 1093 (even though it does business in the county where the action was brought); Cohn v. Central Pac. R. Co., 71 Cal. 488, 12 Pac. 498; Work v. Associated Almond Growers, 76 Cal. App. 708, 245 Pac. 790; Fitzhugh v. University Realty Co., 46 Cal. App. 198, 188 Pac. 1023; L. & E. Emanuel, Inc., v. Oberlin Bros. Co., 33 Cal. App. 235, 164 Pac. 818; Hammond v. Ocean Shore Dev. Co., 22 Cal. App. 167, 133 Pac. 978; Krough v. Pacific Gateway etc. Co., 11 Cal. App. 237, 104 Pac. 698.

9. Strassburger v. Santa Fe Land Improv. Co., 54 Cal. App. 7, 200 Pac. 1065.

10. McClung v. Watt, 190 Cal. 155, 211 Pac. 17; Griffin & Skelly Co. v. Magnolia Co., 107 Cal. 378, 40 Pac. 495; Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209; Prendergast v. Mitchell-Silliman Co., 65 Cal. App. 456, 224 Pac. 243; Strassburger v. Santa Fe Land Improv. Co., 54 Cal. App. 7, 200 Pac. 1065; Meyrose v. Pacific Acceptance Corp., 58 Cal. App. 478, 208 Pac. 986; Nelson v. East Side Grocery Co., 26 Cal. App. 344, 146 Pac. 1055.

11. Strassburger v. Santa Fe Land Improv. Co., 54 Cal. App. 7, 200 Pac. 1065.

12. Prendergast v. Mitchell-Silliman Co., 65 Cal. App. 456, 224 Pac. 243; Meyrose v. Pacific Acceptance Corp., 58 Cal. App. 478, 208 Pac. 986; Strassburger v. Santa Fe Land Improv. Co., 54 Cal. App. 7, 200 Pac. 1065.

If the action is within the provision of section 395 of the Code of Civil Procedure requiring personal actions, with certain exceptions, to be tried in the county in which the defendants or some of them reside at the commencement of the action, and the corporation is a necessary party and the action is brought in the county where the corporation has its principal place of business, and where, therefore, it could have been brought if all of the defendants had been individuals, the individual defendant is not entitled to have the action removed to the county of his residence,13 although he is entitled to such removal on a proper showing if the corporation is neither a necessary nor a proper party.14 If some of the necessary individual defendants reside in the county where the action is brought, the plaintiff is entitled to have it tried there, though the principal place of business of the corporation is in another county.15

As a rule, the motion for a change of place of trial to the county of the individual defendant's residence must be made and determined in advance of any other judicial action in the case,16 and hence the right to the change must be determined by the status of the defendants as revealed by the pleadings existing at the time the party claiming the right first appeared in the action;17 and the right to such a change is not defeated by the granting of a subsequent application for leave to amend the complaint by striking out the individual defendant.18 But the plaintiff may defeat such a pending motion by directing the clerk to dismiss the action as to the individual defendants, in those cases where such a dismissal is permissible under the code.19 Such a motion is properly denied in the absence of any showing as to the place of residence of the individual defend

13. McClung v. Watt, 190 Cal. 155, 211 Pac. 17; Hellman v. Logan, 148 Cal. 58, 82 Pac. 848; Winterburn v. Sheriff, 61 Cal. App. 531, 215 Pac. 406. 14. See infra, § 650.

15. Ainsbett v. Paradise etc. Co., 21 Cal. App. 267, 131 Pac. 330.

16. McClung v. Watt, 190 Cal. 155, 211 Pac. 17; Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209.

17. McClung v. Watt, 190 Cal. 155, 211 Pac. 17.

18. Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209, not deciding what would have been the effect of such an amendment as "of course," under Code Civ. Proc., § 472.

19. Prendergast v. Mitchell-Silliman Co., 65 Cal. App. 456, 224 Pac. 243.

ants other than that they are not residents of the county in which the action is brought.20

§ 650.

Unnecessary or Fictitious Defendants.

Code Civ. Proc., § 395. . . . If any person is improperly joined as a defendant, or has been made a defendant solely for the purpose of having the action tried in the county where he resides, his residence must not be considered in determining which is the proper county for the trial of the action.'

Under the above provision fictitious defendants are to be disregarded in determining a motion for a change of the place of trial. So, the plaintiff cannot defeat the right of the corporation to have the action removed to another county by joining as a defendant against whom he has no cause of action, an individual who is a resident of the county where the action is brought, and a motion for removal to such other county is the proper remedy under such circumstances. But the fraud should be distinctly specified as a ground of the motion, and unless so specified the plaintiff will not be required at the hearing to support by proof the allegations of his complaint showing a cause of action against the resident defendant."

Similarly the joinder as a defendant of a corporation against which the plaintiff has no cause of action, solely for the purpose of giving the court of the county where it is brought jurisdietion, will not defeat the right of an individual co-defendant to have the place of trial changed to the county where he resides ;3 and he is entitled to such removal though the action is brought in the county where the corporation resides if it is neither a necessary nor a proper party. The fact that the complaint states a cause of action against the corporation is not conclusive as to whether it was properly joined, on motion to change the place of trial, and the individual defendant may show that the

20. Meyrose v. Pacific Acceptance Corp., 58 Cal. App. 478, 208 Pac. 986. 1. Prendergast v. Mitchell-Silliman Co., 65 Cal. App. 456, 224 Pac. 243. 2. McDonald v. California Timber Co., 151 Cal. 159, 90 Pac. 548.

3. McClung v. Watt, 190 Cal. 155, 211 Pac. 17.

4. Lachman Co. v. Central Cal. Berry Growers' Assn., 58 Cal. App. 748, 209 Pac. 379; Eddy v. Houghton, 6 Cal. App. 85, 91 Pac. 397.

cause of action so stated does not really exist.5 But the motion will be denied if the complaint in apparent good faith attempts to state a cause of action against the corporation, or, in other words, if the cause of action purported to be stated against it was apparently pleaded in good faith, and is not, prima facie, so glaringly and vitally defective as to be beyond correction by amendment.R

§ 651. Local Actions.-Section 16 of article XII of the Constitution applies only to personal or transitory actions against corporations, and does not apply to local actions or to cases where either the Constitution or the statute has given certain courts exclusive jurisdiction over the subject matter of certain actions. So, it does not apply to an action by stockholders under sections 312 and 315 of the Civil Code to set aside an election of directors-an action which those sections require to be brought in the county where the election was held.8 And it has been said by way of dictum that the constitutional provision does not apply to condemnation proceedings, since they are not founded upon a breach of contract, nor brought to enforce an obligation or liability.9

An action relating to real property of the character which subdivision 1 of section 392 of the Code of Civil Procedure requires to be tried in the county where the property is situated may be commenced in the county where the corporation has its principal place of business,10 unless it comes within the provision of section 5 of article VI of the Constitution "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

5. Lachman Co. v. Central Cal. Berry Growers' Assn., 58 Cal. App. 748, 209 Pac. 379.

6. McClung v. Watt, 190 Cal. 155, 211 Pac. 17.

7. Elberta Oil Co. v. Superior Court, 74 Cal. App. 114, 239 Pac. 415. For text of constitutional provision, see supra, § 647.

8. Elberta Oil Co. v. Superior Court, 74 Cal. App. 114, 239 Pac. 415. As

to actions to set aside elections, see supra, §§ 446-450.

9. See Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856; and Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157.

10. Grocers' Fruit Growing Union v. Kern County Land Co., 150 Cal. 466, 89 Pac. 120.