Miller & Lux v. Kern County Land Co.

TEMPLE, J.

This action is between two corporations, each of which has its principal place of business at San Francisco, to recover damages for alleged injury to real property in Kern County. At the proper time the defendant demanded a change of the place of trial to Kern County, showing, to obtain the order, only the fact that the property alleged to have been injured is in that county. This appeal is from an adverse ruling.

Appellant bases its contention on section 392 of the Code of Civil Procedure, which provides that actions for injuries to real property must be tried in the county where the subj ect of the action, or some part of it, is situated. The respondent relies upon section 16 of article XII of the constitution, which reads: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial, as in other cases.”

This section is of the nature of a code prdvision in regard to procedure, and is obviously self-executing, and differs from a statutory code provision only in that it cannot be repealed, nor can its scope and operation be limited by a statute. So far as it conflicts with a statute, the statute must give way.

Apparently, section 16 of article XII of the constitution does provide, as to actions against corporations, that suit may be brought, at the option of the plaintiff, in counties which, may not be the county in which the land alleged to have been injured is situated. The section applies to actions of tort, as

[588]

well as to those founded upon contract. It was expressly so held in

Lewis

v.

Southern Pacific R. R. Co.,

66 Cal. 209, which decision has been repeatedly affirmed. It is quite obvious, also, from the language used in the section. The clauses of the section are disjunctively connected, and, in effect, refer to actions upon contract, or to actions to enforce an obligation or liability. Obligation is defined in sections 1427 and 1428 of the Civil Code. The law imposes upon one who has injured another the duty of making reparation, and upon this obligation the action for damages is based. (Pomeroy’s Code Pleadings, secs. 453 et seq.) The word “liability,” has always been held to apply to responsibility for torts, as well as for breach of contracts.