' \ \ L r^,x. '•aza -^'^'^ y" THE CODE OF CIVIL PROCEDURE ^. .-' •^ ^v>^_ THE CODE CIVIL PROCEDU .- 'f-^ i^' STATE OF CALIFORNIA. ADOPTED MARCH 11, 1812, AND AMENDED UP TO AND INCLUDING 189X^-"""'"~ JAMES H. Of the San Ft SAN FRANCISCO BANCROFT-WHITNEY CO Law Publishers and Law Booksellers, 1897. Copyright 1897. BANCROFT-WHITNEY CO. San Francisco: THB FlL>rER-ROLLINS ELECTROTYPE COMPANY, TYPOGRAPHERS AND STEREOTYPERS. CODE OF CIVIL PROCEDURE. IN FOUR PARTS. PRELIMINARY PROVISIONS. §§ 2-32. Part I. Of Courts of Justice. §§ 33-304. II. Of CiTil Actions. §§ 307 -1059. III. Of Special Proceediugs of a Civil Nature. §§ 10G3-1822. IV. Of Evidence. §§ 1823-2104. Insolvent Act. pp. 645-GG9. SUMMARY OF CONTENTS. PART I— COURTS OF JUSTICE. Preliminary Provisions. §§ 2-32. Title I. Courts of Justice— Their Organization, Jurisdiction and Terms. §§ 33-153. II. Judicial Officers. §§ 156-187. III. Persons Invested with Judicial Powers. §§ 190-259. IV. Ministerial Officers of Courts of Justice. §§ 262-274. v. Persons Invested with Ministerial Pow- ers. §§ 275-304. PART II— OF CIVIL ACTIONS. I. Form of Civil Actions. §§ 307-309. II. Time of Commencing Civil Actions. §§ 312-363. III. Parties to Civil Actions. §§ 367-389. IV. Place of Trial of Civil Actions. §§ 392- 400. V. Manner of Commencing Suit. §§ 405- 416. VI. Pleadings in Civil Actions. §§ 420-476. VII. Provisional Remedies in Civil Actions. §§ 478-574. \'III. Trial and Judgment in Civil Actions. §§ 577-675. SUMMARY OF CONTENTS. IX. Execution of tlie Judgment in Civil Ac- tions. §§ 681-721. X. Actions in Particular Cases. §§ 726-827. XI. Proceedings in Justices' Courts. §§ 832- 920. XII. Proceedings in Police Courts. §§ 929- 933. XIII. Appeals in Civil Actions. §§ 936-980. XIY. Miscellaneous Provisions. §§989-1059. PART III.— SPECIAL PROCEEDINGS. Preliminary Provisions. §§ 1063-1064. Title I. Writs of Mandate, Review and Prohibi- tion. §§ 1067-1110. II. Contesting Elections. §§ 1111-1127. III. Summary Proceedings. §§ 1132-1179. IV. Enforcement of Liens. §§ 1180-1206. y. Contempt. §§ 1209-1222. Yl. Voluntary Dissolution of Corporations. §§ 1227-1233. VII. Eminent Domain. §§ 1237-1263. VIII. Escheated Estates. §§ 1269-1272. IX. Change of Names. §§ 1275-1279. X. Arbitration. §§ 1281-1290. XI. Proceedings in Probate Courts. §§ 1294- 1809. XII. Sole Traders. §§ 1811-1821. XIII. Proceedings in Insolvency. § 1822. PART IV— OF EVIDENCE. Title I. General Principles of Evidence. §§ 1844- 1870. II. Kinds and Degrees of Evidence. §§ 1875-1978. III. Production of Evidence. §§ 1981-2054. SUMMARY OF CONTENTS. 13 IV. Effect of Evidence. § 2061. V. Rights aud Duties of Witnesses. §§ 2064-2070. VI. Evidence in Particular Cases and Gen- eral Provisions. §§ 2074-2104. Code Civ. Proc— 2 CORRESPONDING SECTIONS OF THE PRACTICE ACT, PROBATE ACT AND Code of Civil Procedure ice Act. Code C. P. Practice Act Code C. 1 •§ 307 § 26 .§ 407 2 .§ 308 § 27 .§ 409 3 .§ 309 § 28 .§ 410 4 .§ 367 § 29 .§ 411 5 .§ 368 § 30 .§ 412 6 .§ 369 § 31 .§ 413 7 .§ 370 § 32 .5 414 8 .§ 371 § 33 .§ 415 9 .§ 372 § 34 .§ 415 10 .§ 373 § 35 .§ 416 11 .§ 370 § 36 .§ 420 12 .§ 378 § 37 .§ 421 13 .§ 379 § 38 .§ 422 14 .§ 382 § 39 .§ 426 15 .§ 383 § 40 .§ 430 16 .§ 385 § 41 .§ 431 17 .§ 389 § 42 .§ 431 18 .§ 392 § 43..... .§ 432 19 .§ 393 § 44 .§ 433 20 .§ 395 § 45 .§ 434 21 .§ 397 § 46 .§ 437 22 .§ 405 § 47 .§ 438 23 .§ 406-407 § 48 .§ 440 24 .§ 407 § 49 .§ 447 25 .§ 407 § 50 .§ 443-4 16 CORRESPONDING SECTIONS. Practice Act.. Code C. P. Practice Act. Code C. P. 453 § 88 § 494 44G § 89 § 495 440 § 90 § 496 447 § 91 § 497 448-449 § 92 § 498 440 § 93 § 499 454 § 94 S 500 453 § 95 § 501 455 § 96 § 502 450 § 97 § 503 457 § 98 § 504 459 § 99 § 509 400 § 100 § 510 401 § 101 § 511 427 § 102 § 512 402 § 103 § 513 403 § 104 § 514 404-472 § 105 § 515 473 § 100 § 516 474 § 107 § 517 452 § 108 § 518 475 § 109 § 519 478 § 110 § 520 479 § 111 § 525 480 § 112 § 520 481 § 113 § 527 482 § 114 § 528 483 § 115 § 529 484 § 110 § 530 485 § 117 § 531 480 § 118 § 532 487 § 119 § 533 488 § 120 § 537 489 § 121 § 538 490 § 122 § 539 491 § 123 § 540 492 § 124 § 541 493 § 125 § 542 50. .. .. .§ 51... 52. .. ...§ . . .§ 53. .. . . .^ 54. .. s 55. . . . . .§ 50. .. . . .§ 57. .. .. .^ 58. .. § 59. .. § 00. .. § 61. .. .. .§ 02... 03. .. ...§ 64. .. $ 65. .. .. .§ 60. .. § 67. .. 8 68 § 09. .. .. .§ 70. .. s'i 71. .. .. .§ 72 .. .§ 73. .. .. .§ 74. .. .. .§ . 8 70. .. . . .§ 77. . . 78. .. ...§ . . .§ 79. .. . 8 80. .. . . .4; 81. .. § 82. .. . . .i? 83. . . .. § 84 . & 85 a 80. .. .. .§ 87... ...§ CORRESPONDING SECTIONS. 17 Practice Act. Code C. P. Practice Act Code C. P. § 12G § 548 § 164 § 615 § 127 § 544 § 165 § 608 § 128 S 545 § 166 § 613 § 129 §546 § 167 § 612 § 130 § 547 § 168 § 614 § 131 § 549 § 169 § 616 § 132 ^5 550 § 170 § 617 § 133 § 551 § 171 § 618 § 134 § 552 § 172 § 619 § 135 § 553 § 173 § 618 § 136 § 554 § 174 § 624 § 137 § 555 § 175 § 625 § 138 § 556 § 17(} § 626 § 139 § 557 § 177 § 627 § 140 S 558 § 178 S 628 § 141 § 559 § 179 § 631 § 142 § 572 § 180 § 633 § 143 § 564-569 § 181 § 636 § 144 §577 § 182 § 638 § 145 § 578 § 183 § 639 § 146 §579 § 184 § 640 § 147 § 580 § 185 § 641 § 148 § 581 § 186 § 642 § 149 § 582 § 187 § 643-6-i5 § 150 §585 § 188 § 646 § 151 § 588 § 189 § 649-652 § 152 § 589 § 190 § 648 § 153 § 590 § 191 § 647 § 154 §591 § 192 § 656 § 155 § 592 § 193 § 657 § 156 § 593 § 194 § 661 § 157 S 594 § 195 § 661 § 158 § 595 § 196 § 661 § 159 § 600 § 197 § 664 § 160 § 604 § 198 § 665 § 161 § 601 § 199 § 666 § 162 § 602 § 200 § 667 § 163...... § 603 § 201 § 668 ]8 CORRESPONDING SECTIONS. Practice Act. Code C. P. Practice Act. Code C. P. § 202... ...§ 669 § 240... ...§ 716 § 203... ...§ 670 § 241... ...§ 717 § 204... ...§ 671 § 242... ...§ 718 § 205... ...§ 672 § 243... ...§ 719 § 206... ...§ 673 § 244... ...§ 720 § 207... ...§ 674 § 245... ...§ 721 § 208... ...§ 675 § 246... ...§ 726 § 209... ...§ 681 § 247... ...§ 727 § 210... ...§ 682 § 248. . . ...§ 728 § 211... . . . Canceled. § 249... ...§ 731 § 212... ...§ 683 § 250... ...§ 732 § 213... ...§ 684 § 251... ...§ 732 § 214... ...§ 685 § 252... ...§ 734 § 215... ...§ 686 § 253... ...§ 735 § 216... ...§ 687 § 254... ...§ 738 § 217... ...§ 688 § 255... ...§ 739 § 218... ...§ 689 § 256... ...§ 740 § 219... § 220... ...§ ...§ 690 § 257. .. .. .§ 741 691 § 258... ...§ 742 § 221... ...§ 692 § 259... ...§ 743 § 222... ...§ 693 § 260... ...§ 744 § 223... ...§ 694 § 261... ...§ 745 § 224... ...§ 695 § 262... ...§ 746 § 225... ...§ 696 § 263... ...§ 747 § 226... 697 § 264... ...§ 752 § 227... ...§ 698 § 265... ...§ 753 § 228... 699 § 266... ...§ 754 § 229... ...§ 700 § 267... ...§ 755 § 230. .. 701 § 268... § 269... 8 756 § 231... ...§ 702 ...§ 757 § 232. .. .. .§ 703 § 270. . . .. .^ 758 § 233... ...§ 704 § 271... ...§ 759 § 234... ...§ .. .§ 705 706 § 272... .. .§ 760 § 235. .. § 273. .. .. .§ 761 § 236... ...§ 707 § 274... ...§ 762 § 237... ...§ 708 § 275. . . ...§ 763 § 238... ...§ 714 § 276... ...§ 764 § 239... ...§ 715 § 277... ...§ 765 CORRESPONDING SECTIONS. 19 I'raetice Act. Cede C. P. Practice Act. Code C. P. § 278..... ..§ im § 310 § 809 § 279 § 767 S 317 § 813 § 280 § 708 § 318 S 814 § 281 §709 S 319 § 815 § 282 §770 § 320 § 816 § 283 § 771 § 321 § 817 § 284 § 772 § 322 § 818 § 285 § 773 § 323 § 819 § 280 S 774 § 324 § 820 § 287 § 775 § 325 § 821 § 288 §776 § 326 § 822 § 289 § 777 § 327 § 823 § 290 §778 § 328 § 824 §291 § 779 §329 § 825 § 292 § 780 § 330 § 826 § 293 §781 § 331 § 827 § 294 §782 § 332 § 827 § 295 §783 § 333 § 936 § 296 § 784 § 334 § 937 § 297 § 785 § 335 § 938 § 298 § 786 § 336 § 939 § 299 § 787 § 337 § 940 § 300 § 788 § 338 § 301 § 789 § 339 § 302 § 790 § 340 Appeals §303 § 791 §341 §§936-959 § 304 § 792 § 342 § 305 §793 § 343 § 306 § 794 § 344 § 307 § 795 § 345 § 956 § 308 § 796 § 346 § 950-954 § 309 § 797 § 347 § 963 § 310 § 803 § 348 § 941 § 311 § 804 § 349 § 942 § 312 § 805 § 350 § 943 § 313 § 806 § 351 § 944 § 314 § 807 § 352 § 945 § 315 § 808 § 353 § 946 20 CORRESPONDING SECTIONS. Practice Act. Code C. F. Practice Act. Code C. P. § 354 § 947 § 392 § 1879 § 355 § 948 § 393 Repealed 1870 § 350 § 949 § 394 § 1880 § 357 § 395 § 1881 § 358 § 958 § 390 § 1881 § 359 § 900 S 397 § 1881 § 300 § 941 § 398 § 1881 § 301 .§ 941 § 399 § 1881 *5 302 § 941 § 400 § 1883 § 303 Kepealed. § 401 § 1884 § 304 Repealed. § 402 § 1985 § 305 Repealed. § 402 § 1989 § 300 Repealed. § 403 § 1980 § 307 § 980 § 404 § 1987 § 308 § 989 § 405 § 1988 § 309 § 990 § 400 § 1990 §370 § 991 §407., §2004 § 371 § 992 § 408 § 2005 § 372 § 993 § 409 ^^ 1991 § 373 § 994 § 410 § 1992 § 374 § 1132 § 411 § 1993 {^ 375. § 1133 § 412 § 1995 §370 §1134 §413 §1990 ^ 377 § 1138 § 414 § 1997 § 378 § 1139 § 415 § 2000 § 379 § 1140 § 410 § 2008-9 § 380 § 1281 § 417 § 381 § 1282 § 418 § 382 § 1283 § 419 Repealed. § 383 § 1284 § 420 '08, 701 § 384 § 1285 § 421 § 385 § 1280 § 422 § 380 § 1287 § 423 § 387 § 1288 § 424 § 2012 § 388 § 1289 § 425 § 2013 § 389 § 1290 § 420 § 2014 § 390 § 997 § 427 § 2015 § 391 § 1879 § 428 § 2021 CORRESPONDING SECTIONS. 21 Practice Act. Code G. P Practice Act. Code C. P. § 429 § 2031 § 4G7 § 1085 § 480 § 2032 § 4G8 § 108G § 431 § 2034 § 409 § 1087 § 432 § 2020 § 470 § 1088 § 433 § 2024 § 471 § 1089 § 434 § 2025 § 472 § 1090 § 435 § 202G § 473 § 1091 § 43G S 2027 § 474 § 1092 § 437 § 2083 § 475 § 1093 S 438 § 2084 § 47G § 1094 § 439 § 2085 § 477 § 1095 § 440 § 20SG § 478 § 109G § 441 § 2087 § 479 § 1097 S 442 § 2088 § 480 § 1209 § 443 § 2093 § 481 § 1211 § 444 § 209G § 482 § 1212 S 445 § 2097 § 483 § 1213 § 44G § 1000 § 484 § 1214 § 447 § 1855 § 485 § 1215 § 448 § 1982 § 48G § 1216 § 449 § 1905 § 487 § 1217 § 450 § 1905-22 § 488 § 1218 § 451 § 190G § 489 § 1219 § 452 § 1907 § 491 § 1220 § 453 § 1900 § 492 § 1221 § 454 § 1930-31 § 493 § 1222 § 455 § 1067 § 494 § 1021 § 456 S 1068 § 495 § 1022 § 457 § 10G9 § 496 § 1023 § 458 § 1070 § 497 § 1024 § 459 § 1071 § 498 § 1025 § 460 § 1072 § 499 § 1026 § 4(51 § 1073 § 500 § 1027 § 462 § 1074 § 501 Kepl'd 1855, 250 § 463 §1075 § 502 Kepl'd 1855, 250 i5 464 § 1076 § 503 Repl'd 1855, 250 § 465 § 1077 § 504 § 1028 § 466 § 1084 § 505 § 1029 22 CORRESPONDING SECTIONS. Practice Act. Code C. P. Practice Act. Code C. P. § 506 § 1030 § 545 § 862 § 507 § 1031 § 546 § 863 § 508 § 1032 § 547 § 864 § 509 Canceled. § 548 § 865 § 510 § 1033 § 549 § § 511 § 1035 § 550 § 875 § 512 § 1036 § 551 § 865-538 § 513 § 1057 § 552 § 866 § 514 § 1037 § 553 § 867 § 515 § 1003 § 554 § 868 § 516 § 1004 § 555 § 869 § 517 § 1005 § 556 § 870 § 518 § 1006 § 557 § 870 §519 §1010-16 §558 § 870 § 520 § 1011 § 559 § 870 § 521 § 1012 § 560 § 870 § 522 § 1013 § 561 § 870 § 523 § 1014 § 562 § 870 §524 §1015 §563 § 870 § 525 § 1047 § 564 § 870 § 526 § 1048 § 565 § 870 § 527 § 1050 § 566 § 870 § 528 § 1052 § 567 § 1057 § 529 § 1053 § 568 § 978 § 530 § 1054 § 569 § 870 § 531 § 1046 § 570 § 852 § 532 §361 § 571 § 851 § 534 § 842 § 572 § 851 § 535 § 832 § 573 § 853 § 536 § 889 § 574 § 855 § 537 § 576 § 886 § 538 § 839 § 577 § 887 § 539 § 843 § 578 § 854-6-7 § 540 § 844 § 579 § 469 § 541 § 845 § 580 § 858 § 54"2 § 849 § 581 § 838 § 543 § 849 § 582 § 833 § 544 § 861 § 583 § 875 6 CORRESPONDING SECTIONS. 23 Practice Act. Code C. P. Practice Act. Code C. P. § 584 § 875-6 § 623 § 659 § 585 § 877 § 624 § 974 § 586 § 870-72 § 625 § 975 § 587 § 881-2 § 626 § 976 § 588 § 250 § 627 § 977 § 589 § 227 § 628 § 978 § 590 § 885 § 629 § 979 § 591 § 890 § 630 llepl'd 1854, 100 § 592 § 870-1 § 631 § 924 § 593 § . 881 § 632 Kepl'd 1855, 250 § 594 § 891-2 § 633 § 921 § 595 § 894 § 634 § 923 § 596 § 895 § 635 § 925 § 597 § 893 § 636 § 929 § 598 § 896 § 637 § 930 § 599 § 897-900 § 638 § 931 § 600 § 90L § 639 § 932 § 601 § 902 § 640 § 974 § 602 § 904 § 641 § 933 § 603 § 925 § 643 § 129-30 § 604 § 911 § 645 § 1055 § 605 § 912 § 646 § 1056 § 606 § 913 § 647 § 1058 § 607 § 914-915 § 650 § 1057 §608 § 916 §651 § 564-69 § 609 § 917 § 652 § 564-69 § 610 § 918 § 653 § 1108 § 611 § 920 § 654 § 548 § 612 § 922 § 655 § 1918-19 § 613 § 849 § 656 § 388 ^614 § 849 § 658 § 386 § 616 § 906 § 659 § 387 § 617 § 907-9 § 660 § 887 § 618 §910 § 661 § 387 § 619 i5 919 § 662 § 387 § 620 § 2019 § 663 § 1051 § 621 § 748 § 664 § 596 s^ 622 § 657 § 665 § -'4 CORRESPONDING SECTIONS. Probate Act. Code C. P. Probate Act. Code C. P. § 2 § 1294 § 41 § 1349 § 3 § 1295 § 42 § 1350 § 4 S 1298 § 43 § 1351 S 5 § 1299 § 44 § 1352 § (3 § 1300 § 45 § 1353 § 7 § 1298 § 46 § 1354 § 8 § 1299 § 47 § 1355 § 9 «5 1299 § 48 § 1356 § 10 § 1302 § 49 § 1356 § 11 S 1302 § 50 § 1360 § 12 § 1305 § 51 § 1361 § 13 § 1.303 § 52 § 1365 § 14 § 1304 § 53 § 1366 § 15 § 1304 § 54 § 1367 § 16 § 1303 § 55 § 1369 § 17 § 1306 § 56 § 1370 § 18 § 1307 § 57 § 1368 § 19 § 1308 § 58 § 1371 § 20 § 1312 § 59 § 1372 § 21 § 1315 § 60 § 1373 § 22 § 1315 § 61 § 1374 § 23 § 1316 § 62 § 1375 § 24 § 1317 § 63 § 1376 § 25 § 1318 § 64 § 1377 § 27 S 1322 § 65 § 1378 § 28 § 1323 § 66 § 1379 J^ 29 § 1324 § 67 § 1383 § 30 § 1327 § 68 § 1384 § 31 § 1328 § 69 § 1385 § 32 § 1329 § 70 § 1386 § 33 § 1330 § 71 § 1362 § 34 § 1331 § 72 § 1387 § 35 § 1332 § 73 § 1388-9(> § 36 § 1333 § 74 § 1391 § 37 § 1338 § 75 § 1392 § 38 § 1339 § 76 § 1393 § 39 § 1340 § 77 § 1.396 § 40 § 1341 S 78 § 1397 CORRESPONDING SECTIONS. 25 Probate Act. Code C. P. Probate Act. Code C. P. § 79 § 1398 § 117 § 1459 § 80 § 1399 § 118 § 1460 § 81 §1400 §119 §1461 § 82 § 1401 § 120 § 1464 § 83 §1402 §121 §1465-75 § 84 § 1403 § 122 § 1466 § 85 § 1404 § 123 § 1467 § 86 § 1405 § 125 § 1468 § 87 § 1406 § 126 § 1469 § 88 § 1411 § 127 § 1470 § 89 § 1412 § 128 § 1490-91 § 90 § 1413 § 129 § 1492 § 91 § 1414 § 130 § 1493 § 92 § 1415 § 131 § 1394-95 § 93 § 1416 § 132 § 1496 § 94 §1417 §133 §1497 § 95 § 1411 § 134 § 1498 § 96 § 1425 § 135 ^ 1499 § 97 § 1426 § 136 § 1590 § 98 § 1423 § 137 § 1501 § 99 § 1424 § 138 § 1502 § 100 § 1427 § 339 § 1503 § 101 § 1428 § 140 § 1504 § 102 § 1429 § 141 § 1505 § 103 § 1430 § 142 § 1507 § 104 § 1432-33 § 143 § 1508 § 105 § 1443 § 144 § 1.509 § 106 § 1444 § 145 § 1510 § 107 § 1445 § 146 § 1511 § 108 § 1446 § 147 § 1512 § 109 § 1447 § 148 § 1517 § 110 § 1448 § 149 4i 1518 § 111 § 1449 § 150 § 1522-23 § 112 § 1450 § 151 § 1.525 '^ § 113 § 1451 § 152 § 1526 § 114 § 1452-53 § 153 § 1.526 § 115 § 1516 § 153 § 1530-31 § 116 § 1458 § 154 § 1.536 Code Civ. Proc— 3. 26 CORRESPONDING SECTIONS. Probate Act. Code 0. P. Probate Act. Code C. P. §155 §1537 §193 §1576 § 15G § 1538 § 194 § 1581 § 157 § 1539 § 195 § 1582 § 158 § 1540 § 19G § 1583 § 159 § 1539 § 197 § 1584 § 160 § 1541 § 198 § 1585 § 161 § 1542 § 199 § 1586 § 162 § 1543 § 200 § 1587 §163 §1544 §201 §1588 § 164 § 1545 § 202 § 1589 ' § 165 § 1546 § 203 § 1590 § 166 § 1547 § 204 § 1591 § 167 § 1548-50 § 205 § 1597 § 168 § 1551 § 206 § 1598 § 169 § 1552 § 207 § 1599 § 170 § 1553 § 208 § 1600 § 171 § 1554 § 209 § 1601 § 172 § 1555 § 210 § 1602 v^ 173 §1556 §211 §1603 i^ 174 § 1557 § 212 § 1604 § 175 § 1558 § 213 § 1605 § 176 § 1559 § 214 § 1606-7 § 177 § 1560 § 215 § 1612 §178 §1561 §216 §1613 §179 §1562 §217 §1614 § 180 § 1563 § 218 § 1615 § 181 § 1564 § 219 § 1616 § 182 § 1565 § 220 § 1617 S 183 § 1566 § 221 § 1618 § 184 § 1567 § 222 § 1622 §185 §1568 §223 §1623 § 186 § 1569-70 § 224 § 1624 § 187 § 1569 § 225 § 1625 § 188 § 1571 § 226 § 1626 §189 §1572 §227 §1627 ^190 § 1573 § 228 § 1628 55 191 § 1574 § 229 § 1629 § 192 § 1575 § 230 § 1630 CORRESPONDING SECTIONS. 27 Probate Act. Code C. P. Probate Act. Code C. P. . §231 §1631 §270 §1683 § 232 § 1632 § 271 § 1684 § 233 § 1633 § 272 § 1685 § 234 § 1635 § 273 § 1686 § 235 § 1636 § 274 § 1691 § 236 § 1636 § 275 § 1692 § 237 § 1637 § 276 § 1693 § 238 § 1638 § 277 § 1695 § 239 § 1643 § 278 § 1696 § 240 § 1644 § 279 § 1697 § 241 § 1645 § 280 § 1698 § 242 § 1646 § 281 § 1436 § 243 § 1647 § 282 § 1411 § 244 § 1648 § 283 § 1437 § 245 § 1649 § 284 § 1438 § 246 § 1650 § 285 § 1439 § 247 § 1651 § 286 § 1440 § 248 § 1652 § 287 § 1704-5 § 249 § 1653 § 288 § 1710 § 250 § 1658 § 289 § 1709 §251 §1659 §290 §1711 § 252 § 1660 § 291 § 2093 § 253 § 1661 § 293 § 1713 § 2.54 § 1661 § 294 § 1616-17 § 255 § 1661 § 295 § 1718 § 256 § 1661 § 296 § 1719 § 257 § 1662 § 297 § 258 § 1665 § 298 § 259 § 1666-67 § 299 § 260 § 1668-69 § 300 See §§ § 261 § 1675 § 301 969-971 § 262 § 1677 § 302 § 1720 § 263 § 1676 § 302 § 1738 § 264 § 1678 § 302 § 1739 §265 §1679 §304 §1728 § 266 § 1680 § 305 § 1729 § 267 § 1681 § 305 § 1741-42 § 268 § 1682 § 306 § 1730 28 CORRESPONDING SECTIONS. Frol)nte Act. Code C. 1*. Probate Act. Code C. P. §007 §1731 §354 §1778 § 308 § 1732 § 355 § 1777 § 309 § 1733 § 356 § 1778 §310 §1734 §357 §1779 § 311 § 1735 § 358 § 1780 § 312 § 1730 § 359 § 1781 § 315 § 3G0 § 1782 § 316 § 361 § 1783 § 317 § 362 § 1784 § 318 § 363 § 1785 '§ 319. . . See Civil Code § 364 § 1786 § 320 §§ 1385-1399 § 365 § 1787 § 321 § 366 § 1788 § 322 § 367 § 1789 ' § 323 § 368 § 1790 § 324 § 369 § 1806 § 325 § 370 § 1774 § 326 § 371 § 1792 § 328 § 1269 § 372 § 1801 § 329 § 1271 § 373 § 1802 § 331 § 1272 § 374 § 1803 § 336 § 1747 § 375 § 1804 § 337 § 1748 § 376 § 1805 § 338 § 1749 § 377 § 1800 § 339 § 1750 § 378 § 1793 § 340 § 1751 § 379 § 1794 § 341 § 1752 § 380 § 1795 § 342 § 1753-54 § 381 § 1796 § 343 § 1754 § 382 § 1776 § 344 § 1757 § 383 § 1807 § 345 § 1758 § 384 § 1775 § 346 § 1759 § 385 § 1791 § 347 § 1763 § 386 § 1797 § 348 § 1764 § 387 § 1798 § 349 § 1765 § 388 § 1799 § 350 § 1768 § 389 § 351 § 1769 § 390 Civii Code § 352 § 1770 § 391 Sections § 353 § 1772 § 392 264-267 AN ACT TO ESTABLISH A CODE OF CIVIL PHOCEBURE. The People of the State of California, represented in Senate and Assembly, do enact as follows: TITLE OF ACT. § 1. Title and division of this volume. § 1. This act shall be known as The Code of Civil Procedure of California, and is divided into four parts, as follows: Part I. Of Courts of Justice. II. Of Civil Actions. III. Of Special Proceedings of a Civil Nature. ly. Of Evidence. This act, hoAv cited: Sec. 19, post. Construction of the codes and of their various sections: See Pol. Code, sees. 4478 et seq. THE CODE OF CIVIL PROCEDURE OF CALIFORNIA. PRELIMINARY PROVISIONS. § 2. When this Code takes effect. § 3. Not retroactive. § 4. Rule of construction of this Code. § 5. Provisions similar to existing laws, how construed. § 6. Tenure of office preserved. § 7. Construction of repeal as to certain officers. § 8. Actions, etc., not affected by this Code. § 9. Limitations shall continue to run. § IQ, Holidays. § 11. Same. § 12. Computation of time. § 13. Certain acts not to be done on holidays. § 14. "Seal" defined. § 15. Joint authority. § 16. Words and phrases. § 17. Certain terms used in this Code defined. § 18. Statutes, etc., inconsistent with Code repealed. § 19. This act, how cited, enumerated. § 20. Judicial remedies defined. § 21. Division of judicial remedies. § 22. Action defined. § 23. Special proceeding defined. § 24. Division of actions. § 25. Civil actions arise out of obligations or injuries. § 26. Obligation defined. § 27. Division of injuries. § 28. Injuries to property. § 29. Injuries to the person. § 30. Civil action, by whom prosecuted. § 31. Criminal actions. § 32. Civil and criminal remedies not merged. § 2. This Code takes effect at twelve o'clock noon, on the first day of January, eighteen hun- dred and seventy-three. See sees. 8, 18. 21 PRELIMINARY PROVISIONS. §§ 3-* Effect of codes generally : See Polit. Code, sees. 4478 et seq. § 3. No part of it is retroactive, unless express- ly so declared. See sec. IS. Impairing- vested rights: See sec. 8, post. § 4. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code estab- lishes the law of this State respecting the subjects to which it relates, and its provisions and all pro- ceedings under it are to be liberally construed, with a view to effect its objects and to promote justice. Construction of codes with relation to each other, and reconciling conflicts between titles, chapters, and articles: See Polit. Code, sees. 4478 et seq. Construction of statutes: See sees. 1858, 1859. Liberal interpretation: See sees. 452, 475. § 5. The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments. See sec. 18. § 6. All persons who at the time this Code takes effect hold office under any of the acts repealed continue to hold the same according to the tenure thereof, except those offices which are not con- tinued by one of the codes adopted at this session of the Legislature. See next section. § 7. When any office is abolished by the repeal of any act, and such act is not in substance re- i55 8-10 PRELIMIXARY PROVISIONS. 32 enacted or eontiuued in either of tlie Codes, sucli ottice ceases at tlie time tlie Codes take effect. Repeals by implication: See sec. 18, post. § 8. No action or proceeding commenced before this Code tal^es effect, and no right accrued, is af- fected by its provisions, but the proceedings there- in must conform to the requirements of this Code as far as applicable. See Civil Code, sees. 0, 20; also repealing clause at the end of this Code. § 9. When a limitation or period of time pre- scribed in any existing statute for acquiring a riglit or barring a remedy, or for any other pur- pose, has begun to run before this Code goes into effect, and the same or any limitation is prescribed in this Code, the time Avhich has already run shall be deemed part of the time prescribed as such limitation by this Code. [Amendment approved March 30, 1874; Amendments 1873-4, 1. In effect July 1st, 1874.] See sees. 361, 362. Limitation of actions: See post, sees. 312 et seq. § 10. Holidaj's within the meaning of this Code are every Sunday, the tirst day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday in September, the twenty-fifth day of December, every day on which an election is held throughout the State, and every day appointed by the President of the United States, or by the Governor of this State, for a pub- lic fast, thanksgiving, or holiday. If the first day of January, the tAventy-second day of February, ihe thirtieth day of May, the fourth day of July, (he ninth day of September, or the twenty-fifth day of December fall upon a Sunday, the Monday 33 PRELIMINARY PROVISIONS. §§ 11-11 following is a holiday. [Approved February 2o, Stats. 1897, ch. XIX. In effect immediately.] Also amended in 1889, Stats. 1889, 46, and 1893. Stats. 1893, 186. Nonjudicial days: See post, 134. § 11. If the first day of January, the twenty- second day of February, the fourth day of July, or the twenty-fifth day of December, falls upon a Sunday, the Monday following is a holiday. [Amendment approved March 24, 1874; Amend- ments 1873-4, 279. In effect July 1st, 1874.] Holidays, when counted: See sec. 13. § 12. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. Time to amend: See sec. 476. Time, how computed, and year, week, and day defined: Folit. Code, sees. 3255 et seq. § 13. "Whenever any act of a secular nature, other than a' work of necessity or mercy, is ap- pointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next busi- ness day, with the same eft'ect as if it had been performed upon the day appointed. § 14. When the seal of a court, public officer, or person, is required by law to be affixed to any paper, the word "seal" includes an impression of .such seal upon the paper alone, as well as upon wax or a wafer affixed thereto. Seals: See sees. 147 to 153, and 1929 to 1934. Seals other than official are abolished by the Civil Code, sec. 1629. §§ 15-17 PRELIMINARY PROVISIONS. 34 Court seals: See sees. 147 et seq., post. Seals for private writings: See see. 1929, post. § 15. Words giving a joint authority to three or more public officers or other persons are con- strued as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. § 16. Words and phrases are construed accord- ing to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appro- priate meaning in law, or are defined in the suc- ceeding section, are to be construed according to such peculiar and appropriate meaning or defini- tion. § 17. Words used in this Code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word "person" includes a corporation as well as a natu- ral person; writing includes printing; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is em- braced by the term "testify," and every written one in the term "depose"; signature or subscrip- tion includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness. The following words also have in this Code the signification attached to them in this section, un- less otherwise apparent from the context: 1. The word "property" includes both real and personal property. 2. The words "real property" are coextensive with hinds, tenements, and hereditaments. 35 PRELIMINARY PROVISIONS. § 18 3. The words "personal property" include money, goods, chattels, things in action, and evi- dences of debt. 4. The word "month" means a calendar mouth, unless otherwise expressed. 5. The word "will" includes codicils. 6. The word "writ" signifies an order or precept in Avriting, issued in the name of the people, or of a court or judicial ofllcer, and the word "process" a writ or summons issued in the course of judicial proceedings. 7. The word "State," when applied to the dif- ferent parts of the United States, includes the Dis- trict of Columbia and the territories; and the words "United States" may include the district and territories. [Amendment, approved March 24, 1874; Amendments 1873-4, 280. In effect July 1, 1874.] Words used in boundaries are defined in sections 3903 to 3907 of the Political Code. § 18. No statute, law, or rule is continued ii; force, because it is consistent with the provisions of this code on the same subject; but in all cases provided for by this Code, all statutes, laws, and rules heretofore in force in this State, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are re- pealed and abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any ac- tion or proceeding already taken, except as in this Code provided; nor does it affect any private stat- ute not expressly repealed. See sees. 3, 8; also repealing clause at the end of this Code. Limitations. See sec. 9. Retroactive effect. See sec. 3. §§ 19-25 PRELIMINARY PROVISIONS 36 Statutes continiUMl in force. See Polit. Code, sec. 19. Vested rights. See sec. 8. § 19. This act, whenever cited, enumerated, re- ferred to, or amended, may be designated simply as the "Code of Civil Procedure," adding, when necessary, the number of the section. § 20. Judicial remedies are such as are admin- istered by the courts of justice, or by judicial otti- cers empowered for that purpose by the constitu- tion and statutes of this State. § 21. These remedies are divided into two class- es: 1. Actions; and, 2. Special proceedings. 1^ 22. An action is an ordinary proceeding in a court of justice, by Avhich one party prosecutes another, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. >^ 23. Every other remedy is a special proceed- ing. See sees. 52, 75, 1022, 1003, 10G4, 1109, 1110. and Part III of this Code, generally. Special proceedings of a civil nature: See post, part ?>, sees. 1067 et seq. § 24. Actions are of two liinds: 1. Civil: and, 2. Criminal. Civil action, form of: See sec. 307, post. Criminal action: See infra, sec. 31. § 25. A civil action arises out of: 1. An obligation; 2. An injury. ■M PRELIMINARY PROVISIONS. §§ 26-32 § 26. An obligation is a legal duty, by which one person is bound to do or not to do a certain thing, and arises from: 1. Contract; or, 2. Operation of law. [Amendment, approved March 24, 1874; Amendments 1873-4, 281. In effect •July 1, 1874.] Obligation, what. See Civil Code, sec. 1427, 1428. § 27. An injury is of two kinds: 1. To the person; and, 2. To property. § 28. An injury to property consists in depriv- ing its owner of the benefit of it, which is done by taking, withholding, deteriorating or destroying- it. § 29. Every other injury is an injury to the person. § 30. A civil action is prosecuted by one party ;i gainst another for the enforcement or protection of a right, or the redress or prevention of a wrong. Forms of action. See post, sec. 307, et seq. 5; 31. The Penal Code defines and provides for tlie prosecution of a criminal action. Criminal action defined: See Fen. Code, § G83. ^ 32. When the violation of a right admits of both a civil and criminal remedy, the right to pi'osecute the one is not merged in the other. Code Civ. Proc— 4 PART I. OF COURTS OF JUSTICE. TITLE I. ORGAMIZATION AND JURISDICTION. Chap. I. Courts of Justice in General, §§ 33, 34. II. Court of Impeachment, §§ 36-39. III. Supreme Court, §§ 40-50. IV. Superior Court, §§ 65-79. V. Justices' Couits, §§ 85-115. VI. Police Courts, § 121. VII. General Provisions Respecting Courts of Justice, §§ 124-153. [Part I, §§ 33-304, amended and in efCect April 1, 1880. Amendments 1880, 21.] CHAPTER I. COURTS OP JUSTICE IX GENERAL. § 33. The several courts of this State. § 34. Courts of record. § 33, Tlie folloT^ing- are the Courts of Justice of this State: 1. The Court of Impeachment; 2. The Supreme Court; 3. The Superior Courts; 4. The Justices' Courts; 5. The Police Courts and such other inferior courts as the Legislature may establish in any in- (rorporated city or town, or city and county. ^-9 COURT OF IMPEACHMENT. §§ 34-37 See Const. CaL, arts. 3, G. For subd. 5, see Const. Cal. art. 6, sec. 13. Jurisdiction of tlie above courts is considered, post, in tlie various cliapters treating thereof. Court of impeachment: See post, sees. 36 et seq. Supreme Court: See post, sees. 40 et seq. Superior courts: See post, sees. 65 et seq. Justices' courts: See post, sees. 85 et seq. Police courts: Sec. 121. § 34. The courts enumerated in the first three subdivisions of the last preceding- section are courts of record. Const. Cal. art. 6, sees. 12, 22. CHAPTER II. COURT OF IMPEACHMENT. § 36. Members of the court. § 37. Jurisdiction. § 38. Officers of the court. § 39. Trial of impeachments provided for in the Penal Cede. § 36. The Court of Impeachment is the Senate; when sitting as such court, the senators shall be upon oath; and at least two-thirds of the members elected shall be necessary to constitute a quorum. • Const. Cal., art. G, sees. 12, 22. § 37. The court has jurisdiction to try impeach- ments, when presented by the Assembly, of the Governor, Lieutenant-Governor, Secretary of State, Controller, Treasurer, Attorney-General, Surveyor-General, Chief Justice of the Supreme Court, Associate Justices of the Supreme Court, and Judges of the Superior Courts for any mis- demeanor in office. Const. Cal. art. 4, sec. 18. §§ 38-40 SUPREME COURT. 40 § 38. The oflioers of the Senate are the officers of the court. See Penal Code, sees. 10, and 737 to 753. § 39. Proceeldiugs on the trial of impeachments are provided for in the Penal Code. Proceedings for removal. See Penal Code, sec. 737 et seq. CHAPTER III. SUPREME COURT. § 40. Justices, elections, and terms of office. § 41. Computation of years of oflBce. § 42. Vacancies. § 43. Departments. § 44. Apportionment of business. § 45. Court in bank. § 46. Absence or disability of Chief Justice. § 47. Sessions. § 48. Adjournments. § 49. Decisions in writing. § 50. Jurisdiction of two kinds. § 51. Original jurisdiction. § 52. Appellate jurisdiction. § 53. Powers in appealed cases. §• 54. Concurrence necessary to transact business. § 55. Transfer of books, papers, and actions. § 56. Remittiturs in transferred cases. § 57. Appeals in probate proceedings. § 40. The Supreme Court shall consist of a Chief Justice and six Associate Justices, who shall be elected by the qualified electors of the State at large, at the general state elections next preceding the expiration of the terms of office of their prede- cessors respectively, and hold their offices for the term of twelve years from and after the first Mon- day after the first day of January next succeeding their election; provided, that of the justices elect- ed at the general State election of eighteen hun- . dred and seventy-nine, the Chief Justice shall go 41 SUPREME COURT. §§ 41-42 out of oflice at llie end of eleven years aud the six Associate Justices shall have so classified, or shall so classify tliemselves, by lot, that two of theiii shall go out of office at the end of three years, two of them at the end of seven years, and two of them at the end of eleven years, from the tirsr Monday after the first day of January, eight- een hundred and eighty; and an entry of such classification shall have been or shall be made in the minutes of the court in banlv, signed by them, and a duplicate thereof filed in the office of the Secretary of State. Const. Cal. art. 6, sees. 2, 3. Eligibility. Sec. 150. Jurisdiction of Supreme Court: See post, sees. 50- 53. Vacancy in the court: See sees. 42, 46. Acts relating to Supreme Court commission. See post, Appendix, 790, et seq. § 41. The years during which a justice of the Supreule Court is to hold office are to be compined respectively from and including the first Monday after the first day of January of any one year to and excluding the first Monday after the first day of January of the next succeeding year. Const. Cal. art. (J, sec. 3. § 42. If a vacancy occur in the office of a Jus- tice of the Supreme Court, tlie Governor shall appoint an eligible person to hold the office until the election and qualification of a justice to fill the vacancy, which election shall take place at the next succeeding general election; and the justice so elected shall hold the office for the remainder of the unexpired term of his predecessor. Const. Cal. art. 6, sec. 3. Vacancy: See the subject generally, Pol. Code, sees. 995 et seq. §S 43, 44 SUPREME COURT. 42 Absence of chief justice: See infra, sec. 46. Vacancy in office of judge does not affect pend- ing proceedings: See post, sec. 184. S 43. There shall be two departments of* the Supreme Court, denominated respectively Depart- ment One and Department Two. The Chief Jus- tice shall assign three of the Associate Justices to each department, and such assignment may be changed by him from time to time; provided, that the Associate Justices shall be competent to sit in either department, and may interchange with one another by agreement among themselves, or if no such agreement be made, as ordered by the Chief Justice. The Chief Justice may sit in either department, and shall preside when so sitting; but tlie justices assigned to each department shall se- lect one of their number as presiding justice. Each of the departments shall have the power to hear and determine causes and all questions aris- ing therein, subject to the provisions in relation to the court in bank. The presence of three jus- tices shall be necessary to transact any business in either of the departments, except such as may be done at chambers; but one or more of the jus- tices may adjourn from time to time with the same effect as if all were present, and the concur- rence of three justices shall be necessary to pro- nounce a judgment; provided, that if three do not concur, the cause may be reheard in the same de- partment, or transmitted to the other department, or to the court in bank. Const. Cal. art. G, sec. 2. Chambers, powers at. Sec. 105, post. Adjournment, holidays. Sees, 134 and 135, post. § 44. The Chief Justice shall apportion the bus- iness to tlie departments, and may. in his discre- 48 SUPREME COURT. § 45 tion, order any cause pending before the court to be heard and decided by the court in bank. The order may be made before or after judgment pro- nounced by a department; but when a cause has been allotted to one of the departments and a judgment pronounced therein, the order must be made within thirty days after such judgment, and concurred in by two Associate Justices; and if so made, it shall have the effect to vacate and set aside the judgment. Any four justices may, either before or after judgment by a department, order a cause to be heard in banlv. If the order be not made within the time above limited, the judgment shall be final; provided that no judgment by a de- partment shall become final until the expiration of the period of thirty days aforesaid, unless approv- ed by the Chief Justice in writing, with the con- currence of two Associate Justices. Const. Cal., art. 6, sec. 2. See sec. 129; Supreme Ct. rule 30. § 45. The Chief Justice or any four justices may convene the court in bank at any time, and the Cliief Justice shall be the presiding justice of the court when so convened. The presence of four justices shall be necessary to transact any busi- ness, and the concurrence of four justices present at the argument shall be necessary to pronounce a judgment in the court in bank; provided, that if four justices so present do not concur in a judg- ment, then all the justices qualified to sit in the cause shall hear the argument, but to render a judgment a concurrence of four justices shall be necessaiy; and every judgment of the court in bank shall be final, except in cases in which no previous judgment has been rendered in one of the departments, and in such cases the judg- ment of the court in bank shall be final, unless S§ 4(5, 47 SUPREME COURT. 44 Avitliin thirty days after such judgment au order be made in writing, signed by four justices, grant- ing a rehearing. Const. Cal. art. 6, sec. 2. § 46. In case of the absence of the Chief Jus- tice from the place at which the court in bank is held, or his inability to act, the .Associate Justices shall select one of their own number to perform the duties and exercise the powers of the Chief Justice during such absence or inability to act. Const. Cal. art. 6, sec. 2. § 47. The Supreme Court shall always be open for the transaction of business. It shall hold reg- ular sessions for the hearing of causes, either in bank, or in one or both of its departments, at the capital of the State, commencing on the first Mon- days of May and second Mondays of November; at the city and county of San Francisco, commenc- ing on the second Mondays of .January and third Mondays of July; and at the city of Los Angeles, commencing on the first Mondays of April and sec- ond jNIondays of October; and special sessions at either of the above-named places at such other times as may be prescribed by the justices there- of. The justices and otBcers of the Supreme Court, shall be allowed their actual traveling expenses in going to and from their respective places of res- idence upon the business of the court, or to attend its sessions. If proper rooms in which to hold the court, and for the accommodation of the officers thereof, are not provided by the State, together with attendants, furniture, fuel, lights, and sta- tionery, suitable and sufficient for the transaction of business, the court, or any three justices there- of, may direct the clerk of the Supreme Court to l)rovi(l(' such rooms, attendants, furniture, fuel. 45 SUPREME COURT. §§ 48-50 lights, and stationery; and the expenses thereof, certified by any three justices to be correct, shall be paid out of the State treasury, for which ex- penses, and to defray the traveling expenses of the justices and officers of the Supreme Court above mentioned, a sufficient sum shall be annually ap- propriated out of any funds in the State treasury not otherwise appropriated. The moneys so ap- propriated shall be subject to the order of the Clerk of the Supreme Court, and be by him dis- bursed on proper vouchers, and the same shall be accounted for by him in annual settlements with the Controller of State on the first Monday of De- cember of each year. Always open. Const. Cal. art. 6, sec. 2, and sec. 134, post. § 48. Adjournments from day to day, or from time to time, are to be construed as recesses in the sessions, and shall not prevent the court, or either of its departments, from sitting at any time. Const. Cal. art. 6, sec. 2. Terms of Court. This section, with section 74, post, does away with the terms of courts, and ren- ders it unnecessary to collate the decisions upon questions connected with that subject. See also section 74, post, as to superior courts, and sections 88 and 104 as to justices' courts. § 49. In the determination of causes, all deci- sions of the Supreme Court in bank, or in depart- ments, shall be given in writing, and the grounds of the decision shall be stated. Const. Cal. art. 6, sec. 2. § 50. The jurisdiction of the Supreme Court is of two kinds: 1. Original; and. §§ 51, 52 SUPREME COURT. 46 2. Appellate. See siibseQuent sections of this chapter. § 51. lu the exercise of its original jurisdiction tlie Supreme Court shall have power to issue writs of mandamus, certiorari, prohibition, and ha- beas corpus; and it shall also have power to issue all other writs necessary and proper to the com- plete exercise of its appellate jurisdiction. Const. Cal. art. 6, sec. 4. Mandamus. Sees. 54, 76, 165, 1084 et seq., 1108 to 1110. Certiorari. Sees. 54, 76, 165, 1067 et seq., 1108 to 1110. Prohibition. Sees. 54, 76, 165, 1102 et seq., 1108 to 1110. Habeas Corpus. Sees. 54, 76, 165; generally, Pen. Code, sec. 1473, et seq. Injunction. Sees. 54, 76, 165, 356, 525 et seq., 745, 1341. Procedendo. Sec. 129, Supreme Ct. rule. Writs, certain, abolished— scire facias and quo warranto, sec. 802 (but as to latter, see sec. 76, subd. 5). Writ. Defined, sec. 17; seal, sec, 153; issuance, sec. 54; service by telegraph, sec. 1017. Powers of single justice to issue writs: See post, sec. 54. Ne exeat: See post, sees. 478 et seq. § 52. The Supreme Court shall have appellate jurisdiction: 1. In all cases in equity, except such as arise in Justices' Courts; 2. In all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal, fine, or in which the demand, exclusive of interest, or the 47 SUPREME COURT. § 53 value of the property iu controversy, amounts to three hundred dollars; 3. In all cases of forcible entry and detainer, proceedings in insolvency, actions to prevent or abate a nuisance, and in all such probate matters as may be provided by law; 4. In all special proceedings; 5. In all criminal cases prosecuted by indict- ment or information, in a court of record, on ques- tions of law alone. Const. Cal. art. (5, sec. 4. Appeals in general. Sec. 936 et seq. Appeals to Supreme Court. Sec. 963 et seq. Proceedings in insolvency: See sec. 1822; and the act of 1895 iu Appendix, post, p. 817. Nuisance: See post, sec. 731. Probate matters: See sec. 963, subd. 3. Forcible entry and detainer: See post, sees. 1180 et seq. Mandamus, etc. The supreme court has appel- late jurisdiction in cases of mandamus and prohi- bition: See post, sec. 1063. Act transferring business, records, etc., of court under old constitution. vSee post, Appendix, p. 865. § 53. The Supreme Court may atfirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceed- ings to be had. The decision of the court shall be given in Avriting; and in giving its decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case. Its judgment in appealed cases shall be remitted to the court from which the appeal was taken. Death, suggestion of: Sec. 385. ?§ 54, 53 SUPREME COURT. 48 Ejectment. Termination of plaintiff's right pending- action: Sec. 740. Marriage, snggestion of: Sec. 385. Errors and defects are to be disregarded: Sec. 475. Records, though not conclnsive, are presumed cor- rectlj' to determine the rights of the parties: Sec. li)G8, subd. 17. As to costs on modification: Sec. 1027. Remittitur: Sec. 958. Repeated applications for same order, etc.: See sees. 182, 183. Res adjudicata: Sec. 1908. § 54. The concurrence of three Justices of the Supreme Court is necessary for the issuance of tiuy writ, or the transaction of any business, ex- cept such as can be done at chambers; provided, that each of the justices shall have power to issue writs of habeas corpus to any part of the State upon petition by or on behalf of any person held in actual custody, and may mal^e such writs re- tin-nable before liimself or the Supreme Court, or any department, or judge thereof, or before any Superior Court in the State or any judge thereof. See Const. Cal., art. G, sec. 4. Business at chambers— sec. 165. Habeas Corpus.— See U. S. Const., art. 8, Amdts., and Const. Cal., art. 2, sees. 5. 6. Generally— Penal Code, sec. 1473 et seq., see. 1492 et seq., 1268, et seq. § 55. All records, books, papers, causes, actions, proceedings, and appeals lodged, deposited, or IKMiding in the Supreme Court abolislied by the constitution, are transferred to the Supreme Court lierein provided for, which lias the same power and jurisdiction over them as if they had been ill tlie first instance lodged, deposited, filed, or -10 SUPREME COURT. §§ 53. 57 coiiimeiiced tlieivin. or, in cases of appeal, ap- I)ealed thereto. Const. Cal.. art. 22, sec. 8. § 56. In all cases of appeal transferred to the Supreme Court, its judtiinents shall be remitted to the Sui)erior Courts of the counties, or cities and counties, from which the appeals were taken res]iectiyely, with the same force and effect as if said cases had been appealed to the Supreme Court from such Superior Courts. Transfer of records.— As to transfer of records, books, papers, and business from old court to new, see appendix, p. 805; also post, sec. 79. § 57. Appeals in probate proceedings shall be .uiven ])reference in hearing in the Supreme Court, and be placed on the calendar in the order of their (late of issue, next after cases in which the peo- ple of the State are parties. [New section ap- proved March 1(>. 1S87: Stats. 1887, p. 82.] Code Civ. Proc— 5 S 65 SUPERIOR COURTS. 50 CHAPTER IV. SUPERIOR COURTS. § 65. Judges and elections. § 66. Superior Courts of two or more judges. § 67. Superior Court of the City and County of San Fran- cisco. § 68. Terms of office. § 69. Computation of years of office. § 70. Vacancies. § 71. Superior Courts by judges of other counties. § 72. Judges pro tempore. § 73. Sessions. § 74. Adjournments. § 75. Jurisdiction of two kinds. § 76. Original jurisdiction. § 77. Appellate jurisdiction. § 78. Process. § 79. Transfer of books, papers, and actions. § 65. There shall be in each of the organized counties, or cities and counties of the State, a Superior Court, for each of which one judge, and for some of which two or more judges, as herein- after in subsequent sections specially provided, shall be elected by the qualified electors of the county, or city and county, at the general State elections next preceding the expiration of the terms of office of their predecessors respectively; provided, that in and for the counties of Yuba and Sutter combined, only one Superior Judge shall be elected, who shall hold the Superior Courts of both said counties, and in accordance with such rules for the dispatch of business in both said counties as he may adopt. (.'oust. CaL, art. G, sec. G. .Jurisdiction of Superior Courts: See post, sees. 75-78. Acts increasing and reducing number of judges in various counties: See post. Appendix, pp. 801, et seq. 51 SUPERIOR COURTS. §§ 66-68 § 66. In each of the counties of Alameda, Los Angeles, Sacramento, San Joaquin, Santa Clara, and Sonoma, there shall be elected two judges of the Superior Court; and in each of said counties, and in any county, or city and county, other than the city and county of San Francisco, in which there shall be more than one judge of the Supe- rior Court, the judges of such court may hold as many sessions of said court at the same time as there are judges thereof, and shall apportion the business among themselves as equally as may be. Const. Cal.. art. G, sees. 6, 7. Acts increasing and reducing number of judges in various counties: See post. Appendix, pp. 801, et seq. § 67. In the city and county of San Francisco there shall be elected twelve judges of the Su- perior Court, any one or more of whom may hold court; and there may be as many sessions of said court at the same time as there are judges thereof. The said judges shall choose from their own num- ber a presiding judge, who may at any time be removed and another chosen in his place, by a vote of any seven of them. The presiding judge shall distribute the business of the court among the judges thereof, and prescribe the order of bus- iness. The judgments, orders, and proceedings of any session of the Superior Court, held by any one or more of the judges of said court, shall be equal- ly effective as if all the judges of said court pre- sided at such session. Const. Cal., art. 6, sec. 6. Process—sec. 78. Act allowing superior judges of San Francisco to appoint secretary: See post. Appendix, p. 800. § 68. The term of office of judges of the Su- SS 69. 70 SUPERIOR COURTS. 52 pei'ior Court nIuiII be six years from and after the first Monday of January next succeeding their election; provided, that the tAvelve judges of the Suiierior Court elected in the city and county of San Francisco at the general State election of eighteen hundred and seventy-nine shall have so <;lassified. or shall so classify themselves, by lot, that four of them shall go out of ottice at the end of one year, four of them at the end of three years, and four of them at the end of five years from the first Monday of January, eighteen hun- dred and eighty; and the entry of such classifica- tion shall have been, or shall be, made in the minutes of the court, signed by them, and a dupli- cate thereof filed in the office of the secretary of State; and provided further, that all the other su- perior Judges elected at the general State election of eighteen hundred and seventy-nine shall go out of office at the end of five years from the first Monday of January, eighteen hundred and eighty. ' Const. Cal., art. 0, sec. 6. § 69. 'i'he years during which a judge of a Su- perior Court is to hold ofiice are to be computed respectively from and includiug the first Monday of January of any one year to and excluding the first Monday of January of the next succeeding year. Const. Cal., art. G, sec. G. See sec. 41, ante. § 70. If a vacancy occur in the office of judge of a Superior Coiu't, the governor shall appoint an eligible i)ersou to hold the office until the election and qualification of a judge to fill the vacancy, ■which election shall take place at the next suc- ceeding general election, and the judge so elected shall hold office for the remainder of the unexpired term. Const. Cal.. art. G. sec. (;. Sec sec. 42, ante. 53 SUPERIOR COURTS. §§ 71-73 N'acaiicies in office, and the mode of siippljriiig iliem: See Polit. Code, sees. D95 et seq. Vacancy does not affect pending proceedings: See post, sec. 184. § 71. A judge of any Superior Coint may liold tlie Superior Court in any county, at the request of tlie judge or judges of the Superior Court there- of, and upon tlie request of tlie governor, it shall be his duty to do so; and in either case the ju<1ge holding the court shall have the same power as a judge thereof. Const. Cal., art. 0, sec. 8. See post, sec. 160. § 72. Any cause in a Superior Court may be tried by a judge pro tempore, who must be a mem- ber of the bar admitted to practice before the Su- preme Court, agreed upon in writing by the par- ties litigant, or their attorneys of record, ap- proved by the court, and sworn to try the cause: and his action in the trial of such cause shall have the same effect as if he Avere a judge of such court. A judge pro tempore shall, before entering upon his duties in any cause, tal^e and suljscribe the following oath or affirmation: '"I do solemnly swear (or affirm, as the case may be) that I Avill support the constitution of the United States and the constitution of the State of California, and that I will faithfully discharge the duties of the office of judge pro tempore in the cause wherein is plaintiff, and is defendant, accord- ing to the best of my ability." Const. Cal., art. G, sec. 8. Must be admitted lief ore Supreme Court: S(»e post, sec. 157. § 73. Tlie Superior Courts shall be always (ipcn (legal holidays nnd nonjudicial days ex- |§ 74-7o SUPERIOR COURTS. 54 cepted) caiid they shall hold their sessions at the conntj^ seats of the several counties, or cities and counties, respectively. They shall hold regular sessions, commencing on the first Mondays of January, April, July, and October, and special ses- sions at such other times as may be prescribed by the judge or judges thereof; provided, that in the city and county of San Francisco the presiding judge shall prescribe the times of holding such special sessions. See Const. Cal., art. G, sec. 5. Ahvays open— see same. Holidays, etc.— See ante, sec. 10, post; sees. 334, 135. Adjournments from time to time mere recesses in the sessions: See sec. 74, infra; see, also, sec. 48, ante. § 74, Adjournments from day to day, or from tinic to time, are to be construed as recesses in the sessions, and shall not prevent the court from sitting at any time. See sec. 48, and sec. 104. § 75. The jurisdiction of the Superior Courts is of two kinds: 1. Original; and, 2. Appellate. See sees. 33. and 50. § 76. The Superior Courts shall have original jurisdiction: 1. In all cases in equity; 2. In all civil actions in which the subject «f litigation is not capable of pecuniary estimation; 3. In all cases at law which involve the title or possession of real pro])erty, or the legality of any tax, impost, assessment, toll, or municipal fine. 55 SUPERIOR COURTS. 2^7,78 and iu all other cases in which the demand, exclu- sive of interest or the value of the property in controversy, amounts to three hundred dollars; 4. Of actions of forcible entry and detainer, of ])roceedings in insolvency, of actions to prevent or abate a nuisance, of all matters of probate, of di- vorce, and for annulment of marriage, and of all such special cases and proceedings as are not otlierwise provided for; .1. In all criminal cases amounting to felony, and oases of misdemeanor not otherwise provided for. Said courts shall have the power of naturali- zation, and to issue papers therefor. Said courts and their judges, or any of them, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and of habeas corpus on petition by or on behalf of any person in actual custody, in their respective counties. Injunctions and writs of prohibition may be issued and served on legal holidays and nonjudicial days. Const. Cal., art. 6, sec. 5. Venue of actions: Sec. 392, post. Nuisance: Sees. 57, 731. Insolvency: See sec. 1822, and the act of 1895 in Appendix, p. 817. Act conferring upon Superior Judges powers of probate, district and county judges: See post, Ap- pendix, p. 799. § 77. The Superior Courts shall have appellate jurisdiction in such cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. Const. Cal., art. G, sec. 5. Appeals to Superior Courts: See post, sees. 974- 980. § 78. The process of the Superior Courts shall extend to all parts of the State; provided, that all § 79 SUPERIOR COURTS. 56 nctions for tbo recovery of the possession of, quiet- ing tlie title to, or for tlie enforcement of liens upon real estate, shall be commenced in the coun- ty in Avhich the real estate, or any part thereof af- fected by such action or actions, is situated. Const. Cal., art. G, sec. o. I{eal property— Commencinji- action; as to place of trial, see sees. 392, 396. § 79. All records, boolvS, papers, causes, actions, proceed inus, and appeals lodged, deposited, or pending- in the District Court or Courts, County Court, Probate Court, Municipal Criminal Court, or Municipal Court of Appeals, of, in, or for any county, or vAty and county, of the State, abolished by the constitution, are transferred to the Su- perior Court of such county, or city and county, AA'liich has the same power and jurisdiction over tliem as if they had been in the tirst instance lodged, deposited, filed, or commenced therein, or, in cases of appeal, appealed thereto. Const. Cal., art. 22. sec. 3. I'ransfer of boolvS, papers, and actions: See ante, sec. 55; see sec. 7G, ante. Act conferring- upon Superior Court, powers of district, county, and probate courts: See post. Ap- pendix, p. 799. Act transferring- to Superior Court business, rec- ords, etc., of courts in existence under old con- stitution: See post. Appendix, p. 799. r>7 JUSTICES' COURTS. § 83 CHAPTEK Y. JUSTICES' COURTS. Article I. Of Justices' Courts in Cities and Counties. II. Of Justices' Courts in Townships. III. Justices of the Peace and Justices' Courts it. General. ARTICLE I. JUSTICES' COURTS IN CITIES AND COUNTIES. § 85. Justices' Court and justices. § 86. Justices' Clerk. § 87. Sheriff and deputies. § 88. Offices and office hours. § 89. Actions. § 90. Reassignment and transfer of actions. § 91. Payment of fees. § 92. Certificates, transcripts, and others papers. § 93. Justices' docket. § 94. Territorial extent of jurisdiction. § 95. Practice and rules. § 93. Attorneys. § 97. Salaries. § 98. What justices successors of others. S 85. There shall be in every city and county <>f more than one hundred thousand popukition a jiistices" court, for which five justices of the peace slinll be elected by the qualitied electors of such e returnable, and the parties summoned re(iuircd to ai)i)ear before the presiding justice, or before one of the other justices of the peace, to bi' designated by the presiding justice, at his office: l)ut all complaints, answers, and other pleadings and papers required to be filed, shall be filed, and a record of all such actions, suits, and proceed- ings made and kept in the clerk's office aforesaid: and the i>r(^siding justice and each of the other justices shall have power, jurisdiction, and author- ity to hear, try. and determine any a'-tion, suit, or l)roceeding so commenced, and which shall have been made returnable Ix'fore liiiii. or may he as- signed or transfei-red to liiiu. or any motion, appli- 61 JUSTICES' COURTS. § 90 cation, or issue therein (subject to the constitu- tional right of trial by .iury). and to make any nec- essary and pro])er orders therein. Concurrent jurisdiction: See sec. 113, post. •Turisdiction of justices' court: See post, sees. 112 et seq. § 90. In case of sickness or disability or ab- sence of a justice of the peace (on the return of a summons or at the time appointed for trial) to Avhom a cause has been assigned, the presiding: justice shall reassign the cause to some other jus- tice, Avho shall proceed Avith the trial and dispo- sition of said cause in the same manner as if orig- inally assigned to him; and if, at any time before the trial of a cause or matter returnable or pend- ing before any of said justices, either party shall object to having the cause or matter tried before such justice, on the ground that such justice is a material witness for either party, or on the grotind of the interest, prejtidice. or bias of such justice, and such objection be made to appear in the manner prescribed by section eight hundred and tliirty-tln-ee of this Code, the said justice shall suspend proceedings, and the presiding justice, on motion and production before him of the affidavit and proofs, shall order the transfer of the cause or matter for trial before some other justice, to be designated by him. The presiding justice ma5^ in like manner, assign or transfer any contested motion, application, or issue in law, arising in any cause returnable or pending before him or any other justice, to some other justice; and the said justice, to whom any cause, matter, motion, appli- cation, or issue shall be so as aforesaid assigned or transferred, shall have power, jurisdiction, and autliority to hear, try. and determine the same ac- cordingly. Code Civ. Proc— 6 §§91,92 JUSTICES" COURTS. 62 § 91. All legal process of every kind in actions, suits or proceedings in said justices' court, for the issue or service of which any fee is or may be al- lowed by law, shall be issued hj the said justices' clerk upon the order of the presiding justice, or upon the order of one of the justices of the peace, acting as presiding justice, as in this article pro- vided; and the fees for issuance and service of all such process, and all other fees which are allowed by law for any ofiicial services of justices, jus- tices' clerks, or sheriff, shall be exacted and paid in advance into the hands of said clerk, and be by him daily, or weekly, or monthly, as the super- visors may require, and before his salary shall be allowed, accounted for in detail, under oath, and paid into the treasury of such city and coun- ty as part of the special fee fund thereof; pro- vided, that such payment in advance shall not be exacted from parties who may prove to the satis- faction of the presiding justice that they have a good cause of action, and that they are not of sufficient pecuniary ability to pay the legal fees; and no judgment shall be rendered in any action before said justices' court, or any of said justices, until the fees allowed therefor, and all fees for previous services therein, which are destined to be paid into the treasury, shall have been paid, except in cases of poor persons, as hereinbefore provided. Const. Cal., art. G, sec. 15. § 92. Cases which by the provisions of law are required to be certified ta the Superior Court, by reason of involving the question of title or pos- session of real property, or the legality of any tax, impost, assessment, toll, or municipal tine, shall be so certified by the presiding justice and jus- tices' clerk ; and for that purpose, If such question C3 JUSTICES' COURTS. § 93 shall arise on the trial, while the case is pendius? before oue of the other justices, such justice shall certify the same to the presiding justice. All ab- stracts and transcripts of judgments and proceed- ings in said court, or in any of the dockets or reg- isters of or deposited in said court, shall be given and certified from any of such dockets or registers, and signed by the presiding justice and clerk, and shall have* the same force and effect as abstracts and trnnscripts of justices of the peace in other cases. Appeals from judgments rendered in said court shall be taken and perfected in the man- ner prescribed by law; but the notice of appeal, and all the papers required to be filed to perfect it, shall be filed with the justices' clerk. Statements on appeal shall be settled by the justice who tried the cause. Sureties on appeal, or on any bond, or undertaking given in any cause or proceeding in said court, when required to justify, may justify before anj^ one of the justices. Transfer— to Superior Court, see sec. 838. Appeals: See sec. 974, et seq. § 93. In a suitable book, strongly bound, the justices' clerk shall keep a permanent record of all actions, proceedings, and judgments commenced, had, or rendered in said justices' court, which book shall be a public record, and be known as the "Justices' Docket," in which docket the clerk shall make the same entries as are provided for in sec- tion nine hundred and eleven of this Code, and which said docket and entries therein shall have the same force and effect as is provided by law in reference to dockets of justices of the peace. To enable the clerk to make up such docket, each of the justices shall keep minutes of his proceedings in every cause returnable before or assigned or transferred to him for trial or hearing; and upon §§ 91-96 JUSTICES' COURTS. 64 jiul.ijcment or other disposition of a cause, such jrstice shall immediately certify and return the said minutes, together with all pleadings and pa- pers in said cause, to the clerk's office, who shall immediately thereupon file the same and make the proper entries under the title of the action in the docket aforesaid. Docket generally: Sec. 911 et seq.; effect of, sec. 912. § 94. The jurisdiction of the justices' court of sucli city and county extends to the limits of the city and county, and its process may be served in any part thereof. Jurisdiction: Sees. 112 et seq.; 925, post. § 95. The justices' court and the justices of the peace of every such city and county shall be gov- erned in their proceedings by the provisions of lav>' regulating proceedings before justices of the peace, so far as such provisions are not altered or modified in this article, and the same are or can be made applicable in the several cases arising before them. The justices' courts of such city and county shall have power to make rules not inconsistent with the constitution and laws for the government of such justices' court and the of- ficers thereof; but such rules shall not be in force until thirty days after their publication; and no rules shall be made imposing any tax or charge on any legal proceeding, or giving any allowance to any justice or otficer for services. Provisions applicable: See post, sees. 832-925. 1 Jules of courts generally: See post, sec. 129. § 96. It shall not be lawful for any justice of the peace, justices' clerlv, or sheriff of any such 1.5 JUSTICES' COURTS. § 97 city and county, or any of their deputies, to ap- pear or advocate, or in any manner act as attor- ney, counsel, or agent for any party or person in any cause, or in relation to any demand, account, or claim pending, or to be sued or prosecuted be- fore said court or justices, or either of them; nor shall any person other than an attorney at law, duly admitted to practice in courts of record, be permitted to appear as attorney or agent for any party in any cause or proceeding before said jus- tice's court, or any of said justices, unless he pro- duce a sufficient power of attorney to that effect, duly executed and aclinowledged before some of- ficer authorized by law to talie acknowledgments of deeds, which power of attorney, or a copy thereof, duly certified by one of the justices (who on inspection of the original, and being satisfied of its genuineness, shall certify such copy), shall be filed among the papers in such cause or pro- ceeding. Justice of the peace, eligibility: Sec. 159. Judicial officers, disqualifications: Sees. 170, 171, 172. Ministerial oflicers generally: Sec. 262. Attorneys: Sec. 275 et seq. Eligibility and residence of justice of peace: Sees. 103, 159, post. § 97. The justices of the peace, and justices' clerk, and his deputy, shall receive for their official services the following salaries, and no other or further compensation, payable monthly, out of the city and county treasury, and out of the special fee fund thereof, after being first allowed and audited as other similar demands are by law re- quired to be allowed and audited: To the presid- ing justice, twenty-seven hundred dollars per an- num; to the other justices of the peace and the 5§ 98, 103 JUSTICES' COURTS. 66 justices' clerk, each, twenty-four liuudred dollars per annum; to the deputy of the justices' clerk, twelve hundred dollars per annum. S 98. The justices of the peace elected in any such city and county at the general election of ei.Lihteen hundred and seventy-nine, or persons ap- pointed to fill their places, are successors of the justices of the peace of such city and county who held office at the time of such election; and all records, registers, dockets, books, papers, causes, actions, and proceedings lodged, deposited, or ponding before the justices' court or any justice of any such city and county, are transferred to the justices' court of such city and county herein provided for, which shall have the same power and jurisdiction over them as if they had been in the first instance lodged, deposited, filed, or commenced therein. Transfer: See sees. 55. 79. ARTICLE II. ^J ^ JUSTICES' COURTS IN TOWNSHIPS. ^ § 103. Justices' Courts and justices. ^ § 104. Courts, where held. ^ § 105. What justice may hold court for another. § 106. Territorial extent of civil jurisdiction. ^ § 107. What justices successors of others. ^ § 103. There shall be at least one justice's court in each of the townships of the State, for Mhich one justice of the peace shall be elected by the qualified electors of the township, at the gen- eral State election next preceding the expiration of the term of office of his predecessor; provided, tliat in any county where, iii the opinion of the board of supervisors, the public convenience re- quires it, the said board may, by order, provide bl JUSTICES' COURTS. § '^^^ tli.at two justices' courts may be established in any towusliip, designating tlie same in such or- dei-; and in such case, one justice of the peace shall be elected in the manner herein provided for each of said courts. In every city having fifteen thousand and not more than thirty-four thousand inhabitants, there shall be one justice of the peace, and in every city having thirty-four thou- sand and not more than one hundred thousand in- habitants, two justices of the peace, to be elected in like manner by the electors of such cities, re- spectively; and such justices of the peace of cities, and justices' courts of cities, shall have the same jurisdiction, civil and criminal, as justices of the peace of townships and township justices' courts. No person shall be eligible to the office of justice of the peace in any city having over fifteen thou- sand inhabitants who has not been admitted to practice law in a court of record; and no justice of the peace shall be permitted to practice law be- fore any other justice of the peace in the city and county in which he resides, or to have a partner engaged in the practice of law in any jus- tice's court in such city or county. Every justice of the peace in any city having over fifteen thou- sand inhabitants shall receive an annual salary of two thousand dollars per annum, and shall be provided by the city authorities with a suitable office in which to hold his court. All fees which are by law chargeable for services rendered by such justices of the peace in the cities aforesaid shall be by them, respectively, collected; and on the first Monday in each month every such city justice of the peace shall make report, under oath, to the city treasurer, of the amount of fees so by him collected, and pay the amount so reported into the city treasury, to the credit of the general fund thereof. §§ 104-106 JUSTICES- COURTS. 68 Sec. 2. The term of oliice of justices of the peace noAv elected shall not be affected by this act. [Amendment approved March 31, 1891; Stats. 1891, p. 456; in effect immediately.] Eligibility of justices of the peace: See sec. 159. Disabilities: See post, sees. 170 et seq. Fees: See Const. Cal., art. G, sec. 15. Act providing- that mayor in certain cities shall not act as justices: See post, Appendix, p. 798. Creation of justices' courts in various places: See post. Appendix, pp. 857 et seq. § 104. A justice's court may be held at any place selected by the justice holding the same, in the township for which he is elected or appointed; and such court shall be always open for the trans- action of business. Always open: See sees. 47, 73, 88, ante. § 105. A justice of the peace of any township, or city, or city and county may hold the court of any other justice of the peace of any towmship, city and county, or city within the same county, at his written request, and Avhile so acting shall be vested with all the powers of the justice for wliom he so holds court. In which case the proper entry of the proceedings before the attending jus- tice subscribed by him shall be made in the docket of the justice for whom he so holds the court; and the same shall be prima facie evidence of such proceedings, and form and become a part of the record of any, or any part of any and all actions, Causes, or proceedings had before such attending justice while so holding the court. [Approved February IG, 1897; Stats. 1897, ch. 11.] § 106. The civil jurisdiction of justices' courts extends to the limits of the townships in which they are held: but mesne and final process of any t;9 JUSTICES' COURTS. §§ 107-111 justices' court in a county may be issued to and served in any part of the county. Jurisdiction: See sec. 94, ante, and post, sees. 112 et seq. § 107. The justices of the peace elected in the townships at the general State election of eighteen hundred and seventy-nine, or persons appointed to till their places, are successors of the justices of the peace of the townships, respectively, who lield office at the time of such election; and, in case the townships of any county are hereafter changed or altered, the board of supervisors of such county shall make provision as to what jus- tices shall be successors of the justices of town- shi])s so changed or altered. ARTICLE III. .JUSTICES OP THE PEACE AND JUSTICES' COURTS IN GENERAL. § 110. Terms of office. § 111. Vacancies. § 112. Civil jurisdiction. § 113. Concurrent jurisdiction. S 114. Civil jurisdiction restricted. S 115. Criminal jurisdiction. § 110. The term of office of justices of the peace shall be tAvo years from the first day of Jan- uary next succeeding their election; provided, that all justices of the peace elected at the general State election of eighteen hundred and seventy- nine shall go out of office at the end of one year from the first day of January, eighteen hundred nnd eighty. § 111. If a vacancy occurs in the office of a justice of the peace, the board of supervisors of § 112 JUSTICES' COURTS. 70 the county shall appoint an eligible person to hold the office for the remainder of the unexpired term. § 112. Tlie justices' courts shall have civil ju- risdiction: J. In actions arising on contract for the recov- ery of money only if the sum claimed, exclusive of interest, does not amount to three hundred dol- lars ; 2. In actions for damages for injury to the per- son, or for taking, detaining, or injuring personal property, or for injury to real property where no issue is raised by the verified answer of the de- fendant involving the title to or possession of the same, if the damage claimed do not amount to three hundred dollars; 3. In actions to recover the possession of per- ' soual property, if the value of such property does not amount to three hundred dollars; 4. lu actions for a fine, penalty, or forfeiture, not amounting to three hundred dollars, given by statute, or the ordinance of an incorporated city and county, city or town, where no issue is raised by the answer involving the legality of any tax, impost, assessment, toll, or municipal fine; 5. In actions upon bonds or undertalvings con- ditioned for the payment of money, if the sum claimed does not amount to three hundred dol- lars, though the penalty may exceed that sum; 0. To tal^e and enter judgment for the recoveiy of money on the confession of a defendant, when the amount confessed, exclusive of interest, does not amount to three hundred dollars. Local and special legislation with respect to court of inferior jurisdiction is prohibited by ar- ticle 4, section 2.5, constitution of 1879. 71 JUSTICES' COURTS. §§ 113-llo S 113. The justices' coiirts shall have concur- rent jurisdiction with the Superior Courts within their respective townships: 1. In actions of forcible entry and detainer, where the rental value of the property entered up- on or unlawfully detained does not exceed twenty- five dollars per month, and the whole amount of damages claimed does not exceed two hundred dollars; 2. In actions to enforce and foreclose liens on personal property, where neither the amount of the liens nor the value of the property amounts to tliree hundred dollars. Const. Cal., art. G. sec. 11. Forcible entry: See post, sec. 1159 et seq. § 114. Except as in the last preceding section provided, the jurisdiction of the justices' courts sliall not, in any case, trench upon the jurisdiction of the several courts of record of the State, nor extend to any action or proceeding against ships, vessels, or boats, for the recovery of seamen's wages for a voyage performed in whole or in part A\-ithout the waters of this State. Const. Cal., art. 6, sec. 11. Actions against vessels: Sec. 813 et seq.; sec. 82.-). ^ >^ 115. The justices' courts shall have jurisdic- tion of the following public offenses committed within the respective counties in which such courts are established: 1. Petit larceny; 2. Assault or battery not charged to have been committed upon a public officer in the discharge of his duties, or to have been committed with such intent as to render the offense a felony; 3. Breaches of the peace, riots, routs, affrays, § 121 POLICE COURTS. 72 committiui? a willful injury to property, and all misdemeanors punishable by tin© not exceeding five hundred dollars, or imprisonment not exceed- ing six months, or by both such fine and impris- onment. Act conferring power to act as police judges: See post. Appendix, p. 798. CHAPTER AT. POLICE COURTS. § 121. Provided for in Political Code. § 121. Police courts are established in incorpo- rated cities and counties, cities, and towns, and their organization, jurisdiction, and powers pro- vided for in tlie Political Code, part four. Proceedings in civil actions: See post, sec. 920. Police courts generally, their organization and jurisdiction: See Polit. Code, sees. 4424 et seq. Act providing that mayors in certain cities shall not be required to act as police judge: See post. Appendix, p. 798. Act transferring business to after new constitu- tion: See post. Appendix, p. 80.5. GENERAL PROVISIONS. §§ 124, 12S CHAPTER VII. GENERAL PROVISIONS RESPECTING COURTS OF JUSTICE. Article I. Publicity of Proceedings. II. Incidental Powers and Duties of Courts. III. Judicial Days. IV. Proceedings in Case of Absence of Judge. V. Provisions Respecting Places of Holding Courts. VI. Seals of Courts. ARTICLE I. PUBLICITY OP PROCEEDINGS. § 124. Sittings, public. § 125. Sittings, when private. 55 124. The sittings of every court of justice shall be public, except as provided in the next section. U. S. Const., art. 6, sec. 1, amdts. The original of tlie various sections of this chap- ter will be found in Stats. 1863, pp. 340 et seq. § 125. In an action for divorce, criminal con- versation, seduction, or breach of promise of mar- riage, the court may direct the trial of any issue of fact joined therein to be private, and may ex- clude all persons except the officers of the court, the parties, their witnesses, and counsel; provided', that in any cause the court may, in the exercise of a sound discretion, during the examination of a witness, exclude any or all other witnesses in the cause. Divorce genernlly: Sec. 7(3, subd. 4. Testimony Icept secret, Tolit. Code, sec. 10.32. Exclusion of witnesses: Sec. 2043. Code Civ. Proc— 7 § 128 GENERAL PROVISIONS. 74 ARTICLE II. INCIDENTAL POWERS AND DUTIES OF COURTS. § 128. Powers respecting conduct of proceedings. § 129. Courts of record may malie rules. § 130. When rules take effect. § 128. Every court shall have power: 1. To preserve and enforce order in its imme- diate presence; 2. To enforce order in the proceedings before it, or before a person or persons empowered to con- duct a judicial investigation under its authority; 3. To provide for the orderly conduct of pro- ceedings before it, or its officers; 4. To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein; 5. To control in furtherance of justice, the con- duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto; 6. To compel the attendance of persons to testi- fy in an action or proceeding pending therein, in the cases and manner provided in this Code; 7. To administer oaths in an action or proceed- ing pending therein, and in all other cases where it may be necessary in the exercise of its powers and duties; 8. To amend and control its process and orders so as to make them conformable to law and jus- tice. PoAver of judicial officers: See post, sec. 177. Contempt: See post, sec. 1209. Same in justice's court: See sees. 90(3 et sea. Subd. G. Attendance of witnesses: See post, sees. 1985 et sea. 75 GENERAL PROVISIONS. §§ 129-134 Subd. 7. Administration of oaths: See post, sees. 2093 et seq. § 129. Every court of record may mat:e rules not inconsistent with the laws of this State, for its own government and the government of its offi- cers; but such rules shall neither impose any tax or charge upon any legal proceeding, nor give any allowance to any officer for services. Powers of courts, judges, etc.: See sees. 128, 177. When rules take effect: Sec. 130. § 130. Rules adopted by the Supreme Court shall talie effect sixty days, and rules adopted by Superior Courts, thirty days after their publica- tion. ARTICLE III. JUDICIAL DAYS. § 133. Days on which courts, etc., may be held. § 134. Nonjudicial days. § 135. Appointments on nonjudicial days. § 133. Courts of justice may be held and ju- dicial business transacted on any day, except as provided in the next section. § 134. No court shall be open, nor shall any judicial business be transacted, on Sunday, on the first day of January, on the twenty-second day of February, on the thirtieth day of May, on the fourth day of July, on the ninth day of September, on the first Monday of September, on the twenty- fifth day of December, on a day upon which an election is held throughout the State, or by the Governor of this State, for a public fast, thanks- giving, or holiday, except for the following pur- poses: §§ 135, 139 GENERAL PROVISIONS. 76 1. To give, upon their request, instructions to a jury when deliberating- on tlieir verdict; 2. To receive a verdict or discharge a jury; 3. For the exercise of the powers of a magis- trate in a criminal action, or in a proceeding of a criminal nature; provided, that the Supreme Court and tlie Superior Courts sliall always be open for the transaction of business; and provided further, that injunctions and writs of proliibition may be issued and served on any day. [Approved Febru- ary 23, 1S97; Stats. 1897, ch. 10. In effect imme- diately.] This section was also amended in 1891; Stats. 1891, p. 456. Holidays: Sees. 10, 11; also, sees. 12, 13. Courts always open: Sees. 47, 73, 104. Injunctions and writs of prohibition, issuance of: Sec. 7G, subd. 5; and Const. Cal., art. G, sec. 5. 8 135. If any day mentioned in the last section happens to be the day appointed for the holding or sitting of a court, or to which it is adjourned, it shall be deemed appointed for or adjourned to the next day. ARTICLE IV. PROCEEDINGS IN CASE OF ABSENCE OF JUDGE. § 139. Adjournment for absence of judge. § 140. Adjournment till next regular session. § 139. If no judge attend on the day appointed for the holding or sitting of a court, or on the day to which it may have been adjourned, before noon, the sheriff or cleric shall adjourn the same until the next day, at 10 o'clock a. m., and if no judge attend on that day, before noon, the sheriff or clerk shall adjourn the same until the following day at the same hour, and so on, from day to day, 77 GENERAL PROVISIONS. §§ 140-143 for one week, unless the judge, by written order, directs it to be adjourned to some day certain, fixed in said order, in wliicli case it shall be so ad- journed. Nonjudicial day: Sec. 135. § 140. If no judge attend for one week, and no J written order be made, as provided in the last sec- tion, the sheriff or clerk shall adjourn the session until tlie time appointed for the holding of the next regular session. Sessions: See sec. 73. ARTICLE Y. PROVISIONS RESPECTING PLACES OF HOLDING COURTS. § 142. Change in certain cases of place of holding court. § 143. Parties to appear at place appointed. § 144. When Sheriff to provide court-rooms, etc. § 142. The judge or judges authorized to hold or preside at a court appointed to be held at a particular place in a city and county, county, city, or town, may, by an order filed with the city and county or county clerk, and published as he or they may prescribe, direct that the court be held or continued at any other place in the city and coun- ty, county, city or town than that appointed, when war, insurrection, pestilence, or other public ca- lamity, or the danger thereof, or the destruction or danger of the building appointed for holding the court, may render it necessary; and may, in the same manner, revoke the order, and in his or their discretion, appoint another place in the same city and county, county, city, or town, for holding the court. § 143. When the court is held at a place ap- pointed, as provided in the last section, every per- §§ 144, 147 GENERAL PROVISIONS. 78 son held to appear at the court must appear at the place so appointed. § 144, If suitable rooms for holding the Su- perior Courts and the chambers of the judges of said courts be not provided in any city and coun- ty, or county, by the supervisors thereof, together with the attendants, furniture, fuel, lights, and stationery sufficient for the transaction of busi- ness, the courts, or the judge or judges thereof, may direct the sheriff of the city and county, or county, to provide such rooms, attendants, furni- ture, fuel, lights, and stationery; and the expenses incurred, certified by the judge or judges to be correct, shall be a charge against the city and county treasury, and paid out of the general fund thereof. AllTICLE VI. SEALS OP COURTS. § 147. What courts shall have seals. § 148. Seal of Supreme Court. § 149. Seals of Superior Courts. § 150. Seals of Police Courts of cities and counties. § 151. Seals, how provided: private seals, when used. § 152. Clerk of court to keep seal. § 153. Seals of courts, to what documents affixed. § 147. Each of the following courts shall have a seal: 1. The Supreme Court; 2. The Superior Courts; 3. The Police Court of every city and county. Seal of court— Judicial notice taken of: Sec. 1875, subd. 4; court commissioner may provide official seal, sec. 259, subd. 5. Seals discussed: Sec. 14, and sec. 150. Police courts are not courts of record: See ante, 79 GENERAL PROVISIONS. §§ 148-151 sees. 33, 34; and yet have a seal: Supra, this sec- tion. § 148. The seal used by the Supreme Court, abolished by the constitution, shall be the seal of the Supreme Court herein provided for; but the said court may direct the clerk of the Supreme Court to provide two duplicates of said seal, each of which shall be considered the same as and have the same force and effect as the original. § 149. The seals of the Superior Courts shall be circular, not less than one and three-fourths inches in diameter, and having in the center any word, words, or design adopted by the judges thereof, and the following inscription surrounding the same: "Superior Court, , California," insert- ing the name of the county, or city and county; provided, that the seal of any such court, which has been adopted previous to the passage of this act, shall be the seal of such court, until another be adopted. See Act of March 31, 1880, validating writs, process and certificates issued from Superior Courts before seal provided: See post, Appendix, p. 864. § 150. The police court of every city and coun- ty may use any seal having upon it the inscrip- tion, "Police Court, ," (inserting the name of the city and county). § 151. Courts which have not the necessary seal provided, or the judge or judges thereof, shall request the supervisors of their respective coun- ties or cities and counties, to provide the same, and in case of their failure to do so, may order the sheriff to provide the same, and the expense tliereof shall be a charge against the county or §5 152, 153 GENERAL PROVISIONS. 80 city and county treasury, and paid out of the gen- eral fund thereof; and until such seal be provided, the clerk of each court may use his private seal, whenever a seal is required. § 152. The clerks of the court shall keep the seal thereof. § 153. The seal of a court need not be affixed to any proceeding therein or document, except: 1. To a writ; 2. To the certificate of probate of a will, or of the appointment of an executor, administrator, or guardian; o. To the authentication of a copy of a record, or other proceeding of a court, or of an officer thereof, or of a copy of a document on file in the office of the clerk. Seals, generally: Sec. 14. si JUDICIAL OFFICERS IN GENERAL. § 156 TITLE II. JUDICIAL OFFICERS. Chapter I. Judicial Officers iu General, §§ 156-1(J1. II. Powers and Duties of Judges at Chambers, §§ 165-166. III. Disqualifications of Judges, §§ 170-172. IV. Incidental Powers and Duties of Ju- dicial Officers, §§ 176-179. V. Miscellaneous Provisions Respe(.'ting Courts and Judicial Officers, §§ 182- 187. CHAPTER I. JUDICIAL OFFICERS IN GENERAL. § 156. Qualifications of Justices of Supreme Court. § 157. Qualifications of Superior Judges. $ 158. Residence of Superior Judges. § 159. Residence and qualification of Justices of the Peace. § 160. Judges holding Superior Courts at request of Gov- ernor. § 161. Justices and judges ineligible to other than judicial office. § 156. No person shall be eligible to the office of chief or associate justice of the Supreme Court, unless he shall have been a citizen of the United States and a resident of this State for two years next preceding his election or appointment, nor unless he shall have been admitted to practice be- fore the Supreme Court of the State. The various sections of this title are founded upon the statute of 1863, pp. 833 et seq., unless otherwise stated. Judge must be an attorney: Const. Cal., ar(. <». sec. 23. §§ 157-160 JUDICIAL OFFICERS IN GENERAL. 82 § 157. No person shall be eligible to the office ot judge or a Superior Court unless he shall have been a citizen of the United States and a resident of this State, for two years next preceding his election or appointment, nor unless he shall have been admitted to practice before the Supreme Court of the State. § 158. Each judge of a Superior Court shall re- side at the county seat of the county in which such court is held, or within three miles thereof, and within the county, except that in the coun- ties of Yuba and Sutter the judge may reside in either of said counties; provided, that when there is more than one judge of the Superior Court in a county, it shall not be necessary for more than one judge to reside at the county seat, as provided herein. [Amendment approved March 31, 1891; Stats. 1891. p. 277.] § 159'. Every justice of the peace shall reside in the city and county, or township, in which his court is held, and no person shall be eligible to the office of justice- of the peace unless he shall have been a citizen of the United States, and a resident of the city and county, or county, in which he is to serve for one year next preceding his election or appointment. § 160. If, by reason of sickness, absence, disa- bility, or other cause, a regular session of the Su- perior Court cannot be held in any county by the judge or judges thereof, or by a superior judge, requested by him or them to hold such court, a certificate of that fact shall be transmitted by the clerli thereof to the governor, who may there- upon request some other superior judge to hold such court; and a judge so holding a court, at the request of the governor, or at the request of the S3 POWERS OF JUDGES. §§ 161-166 judge or judges of said Superior Court, sliall De allowed liis actual aud necessary expenses in go- ing to, returning from, and attending upon the business of such court, which shall be a charge against the treasury of the county where such court is held, and paid out of the general fund thereof. L Amendment approved March 15, 1887; Stats. 18S7, p. 148. In effect March 16, 1887.] See sec. 71. § Idl. The justices of the Supreme Court and judges of the Superior Courts shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they sliall have been elected. Const. Cal., art. 6, sec. 18. CHAPTER II. POWERS OF JUDGES AT CHAMBERS. § 165. Powers of Justices of Supreme Court at chambers. § 166. Powers of Superior Judges at chambers. § 165. The justices of the Supreme Court, or any of them, may, at chambers, grant all orders and writs which are usually granted in the first instance upon an ex parte application, except writs of mandamus, certiorari, and prohibition; and may, in their discretion, hear applications to discharge such orders and writs. See sec. 176; also sees. 177, 178, 179. § 166. The judge or judges of a Superior Court, or any of them, may, at chambers, grant all or- ders and writs which are usually granted in the first instance upon an ex parte application, and may, at chambers, hear aud dispose of such or- § 170 DISQUALIFICATIONS OF JUDGES. 84 ders and writs; and may also, at chambers, ap- point appraisers, receive inventories and accounts to be filed, suspend the powers of executors, ad- ministrators, or guardians in the cases allowed by law, grant special letters of administration or guardianship, approve claims and bonds, and di- rect the issuance from the court of all writs and process necessary in tlie exercise of their powers, in matters of probate. See, generally, sec. ITG, post. Hours, etc., for official business: Polit. Code, sec. 4116. Probate matters: See sec. 1305. CHAPTER III. DISQUALIFICATIONS OF JUDGES. § 170. Disqualifications to sit or act. § 171. Certain judges not to practice law. § 172. No judicial ofiicer to have partner practicing law. § 170. No justice, judge, or justice of the peace shall sit or act as such in any action or proceed- ing: 1. To which he is a party or in which he is in- terested. 2. When he is related to either party, or to an attorney, counsel, or agent of either party, by con- sanguinity or affinity, within the third degree, computed according to the rules of law. 3. When he has been attorney or counsel for either party in the action or proceeding. 4. When it appears from the affidavit or affi- davits on file that either party cannot have a fair and impartial trial before any judge of a court of record about to try the case by reason of the prejudice or bias of such judge, said judge shall forthwith secure the services of some other judge, of the same or another county, to preside at the 85 DISQUALIFICATIONS OF JUDGES. § 171 trial of said action or proceediug; provided, that in an action in the Superior Court of a county, or of a city and county, having more than one de- partment, said action shall be transferred to an- other department thereof, and tried therein in the same manner as though originally assigneil to sucli department. The atlidavit or aftidavits alleging the disqualification of a judge, must be filed and served upon the adverse party or the attorney for such party at least one day before the day set for trial of such action or proceeding; provided, counter affidavits may be filed at least one day thereafter, or such further time as the court may extend the time for filing such counter attidavits, not exceeding five days, and for this purpose the court may continue tlie trial; and in no one cause or proceeding can more than one such change of judges be had. But the provisions of this sec- tion shall not apply to the arrangement of the calendar, or to the regulation of the order of busi- ness, nor the power of transferring the action or proceeding to some other court, or the hearing up- on such afiidavits and counter affidavits. [Ap- proved March 31, 1897; Stats. 1897, ch. 190.] This section was also amended .January 1, 1893; Stats. 1893, p. 234. Change of venue: Sec. 397, subd. 4; sec. 398, Rules of law. Civ. Code, sees. 1392, 1393. Subd. 3. Judge, acting as attorney: Sees. 171^ 172. § 171. No justice, or judge of a court of record, or county clerk, shall practice law in any court of this State, nor act as attorney, agent, or .solicitor in the prosecution of any claim or application for lands, pensions, patent rights, or other proceed- ings, before any department of the State or gen- ernl government, or courts of the United States, Code Civ. Proc— 8. §§ 172-177 INCIDENTAL POWERS AND DUTIES. 86 during bis coutiuiiance in office; nor shall any jus- tice of the peace practice law before any justice's court in the county in which he resides. [Amend- ment approved March 14, 1881; Stats. 1881, 78. In effect March 14th, 1881.] § 172. No justice, judge, or other elective judi- cial officer, or court commissioner, shall have a partner acting at attorney or counsel in any court of this State. CHAPTER IV. INCIDENTAL. POWERS AND DUTIES OF JUDICIAL OFFICERS. § 176. Powers of judges out of court. § 177. Powers of judicial officers as to conduct of pro- ceedings. § 178. To punish for contempt. § 179. To take acknowledgments and affidavits. § 176. A justice or judge may exercise out of court all the powers expressly conferred upon a justice or judge, as contradistinguished from the court. See sees. 165, 166, 179. § 177. Every judicial officer shall have power: 1. To preserve and enforce order in his imme- diate presence, and in proceedings before him, when he is engaged in the performance of official duty; 2. To compel obedience to his lawful orders as provided in this Code; 3. To compel the attendance of persons to tes- tify in a proceeding before him, in the cases and manner provided in this Code; 4. To administer oaths to persons in a proceed- ing pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties. See sec. 128. 87 MISCELLANEOUS PROVISIONS. §§ 178-182 § 178. For the effectual exercise of the powers couferred by the last section, a judicial officer may punish for contempt in the cases provided in this Code. Contempt— generally, sec. 1209; in Justices' Courts, sec. 906. § 179. Each of the Justices of the Supreme Court, and Judges of the Superior Courts, shall have power in any part of the State, and every Justice of the Peace within his city and county, or county, and a Judge of a Police or inferior court within his city and county, city, or town, to take and certify: 1. The proof and acknowledgment of a convey- ance of real property, or of any other written in- strument; 2. The acknowledgment of satisfaction of a judgment of any court; 3. An affidavit or deposition to be used in this State. Subd. 1. Real property— conveyance of: See sec. 1971; see Civ. Code, sees. 1180 et seq. Subd. 2. Satisfaction of judgment, sec. 675. Subd. 3. Affidavit, sec. 2009 et seq. Deposition, sec. 2019 et seq. CHAPTER V. MISCELLANEOUS PROVISIONS RESPECTING COURTS AND JUDICIAL OFFICERS. § 182. Subsequent applications for orders refused, when prohibited. § 183. Violations of preceding section. § 184. Proceedings not affected by vacancy in office. § 185. Proceedings to be in English language. § 186. Abbreviations and figures. § 187. Means to carry jurisdiction into effect. § 182. If an application for an order made to a Judge of a court in which the action or proceed- §§ 183-187 MISCELLANEOUS PROVISIONS. 88 ing is pending is refused in whole or in part, or is granted conditionally, no subsequent application for the same order shall be made to any Court commissioner, or any other judge, except of a higher court; but nothing in this section applies to motions refused for informality in the papers or proceedings necessary to obtain the order, or to motions refused with liberty to rencAv the same. Orders and motions generally, sec. 1003 et seq. Orders, appealable, sec. 939, subd. 3. § 183. A violation of the last section may be punished as a contempt; and an order made con- trary thereto may be revoked by the judge or com- missioner Avho made it, or vacated by a judge of the court in which the action or proceeding is pending. Penalty for violation: See sees. 90G, 1209. Ex parte order, vacating or modifying, sec. 937. § 184. No proceeding in any court of justice, in an action or special proceeding pending therein, shall be affected by a vacancy in the office of all or any of the judges thereof. Vacancy, sees. 42, 70. § 185, Every written proceeding in a court of justice in this State shall be in the English lan- guage, and judicial proceedings shall be conduct- ed, preserved, and published in no other. Words and phrases, interpretation of, sees. 16, 17. § 186. Such abbreviations as are in common use may be used, and numbers mny be expressed by figures or numerals in the customary manner, § 187. When jurisdiction is, by the Constitu- tion of this Code, or by any other statute, con- ferred on a court or judicial officer, all the means S9 JURORS. § 190 necessary to carry it into effect are also given; and in the exercise of tliis jurisdiction, if the course of proceeding be not specitically pointed out by tliis Code or tlie statute, any suitable pro- cess or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. TITLE III. PERSONS SPECIALLY INVESTED WITH POWERS OF A JUDICIAL NATURE. Chapter I. Jurors, §§ 190-254. II. Court Commissioners, §§ 258, 259. CHAPTER I. JURORS. Article I. Jurors in General. II. Qualifications and Exemptions of Jurors. III. Of Selecting and Returning Jurors for Courts of Record. IV. Of Drawing Jurors for Courts of Record. V. Of Summoning Jurors for Courts of Record. VI. Of Summoning Jurors for Courts not of Record. VII. Of Summoning Jurors of Inquest. VIII. Obedience to Summons, how Enforced. IX. Of Impaneling Grand Juries. X. Of Impaneling Trial Juries in Courts of Rec- ord. XI. Of Impaneling Trial Juries in Courts not of Record. XII. Of Impaneling Juries of Inquest. ARTICLE I. JURORS IN GENERAL. § 190. Jury defined. § 191. Different kinds of juries. § 192. Grand jury defined. § 193. Trial jury defined. § 194. Number of a trial jury. § 195. Jury of inquest defined. § 190. A jury is a body of men temporarily se- lected from the citizens of a particular district. §§ 191-195 JURORS. 90 and invested with power to present or indict a person for a public offense, or to try a question of fact. Jurors, qualificatious and exemptions, sees. 198- 202; selecting and summoning, sees. 204-238; im- paneling, sees. 241-254. § 191. Juries are of three liinds: 1. Grand juries; 2. Trial juries; 3. Juries of inquest. § 192. A grand jury is a body of men, nineteen in number, returned in pursuance of law, from the citizens of a county, or city and county, be- fore a court of competent jurisdiction, and sworn to inquire of public offense committed or triable within the county, or city and county. Grand jury, impaneling, sees. 241-242. How often drawn. Const. Cal. art. 1, sec. 8. § 193. A trial jury is a body of men returned from the citizens of a particular district before a court or officer of competent jurisdiction, and sworn to try and determine, by verdict, a question of fact. Trial by jury, sees. 600-619. Verdict, when need not be unanimous, Const. Cal. art. 1, sec. 7. See also, sec. 618. § 194. A trial jury shall consist of twelve men; provided, that in civil actions and cases of mis- demeanor, it may consist of twelve, or of any number less than twelve, upon which the parties may agree in open court. Less than twelve. Const. Cal. art. 1, sec. 7. § 195. A jury of inquest is a body of men sum- moned from the citizens of a particular district before the Sheriff, Coroner, or other ministerial officer, to inquire of particular facts. JURORS. §§ 198, 199 ARTICLE II. QUALIFICATIONS AND EXEMPTIONS OF JURORS. § 198. Who competent to act as juror. § 199. Who not competent to act as juror. § 200. Who exempt from jury duty. § 201. Who may be excused. § 202. Affidavit of claim to exemption. § 198. A person is competent to act as juror if be be: 1. A citizen of the United States of the age of twenty-one years, who shall have been a resident of the Slate one year, and of the county, or city and county, ninety days before being selected and returned; 2. In possession of his natural faculties, and of ordinary intelligence, and not decrepit. 3. Possessed of suflScient linowledge of the Eng- lish language; 4. Assessed on the last assessment roll of the county, or city and county, on property belonging to him. Residence, generally: See Const. Cal. art. 2, sec. 4, art. 20, sec. 12; Polit. Code, sec. 52. , § 199. A person is not competent to act as a juror: 1. Who does not possess the qualifications pre- scribed by the preceding section; or, 2. Who has been convicted of malfeasance in office, or any felony or other high crime. § 200. A person is exempt from liability to act as a juror if he be: 1. A judicial, civil, or military officer of the United States, or of this State; § 200 JURORS. 92 2. A person holding a county, city and county, or township office; 3. An attorney at law; 4. A minister of the gospel, or a priest of any denomination following his profession; 5. A teacher in a university, college, academy, or school; 6. A practicing physician or druggist actually engaged in the business of dispensing medicines; 7. An officer, keeper or attendant of an alms- house, hospital, asylum, or other charitable insti- tution ; 8. Engaged in the performance of duty as offi- cer or attendant of the State prison or of a county jail; 9. Employed on board of a vessel navigating the waters of this State; 10. An express agent, mail carrier, superinten- dent, employe, or operator of a telegraph line do- ing a general telegraph business in this State, or keeper of a public ferry or toll-gate; 11. An active member of the National Guard of California, or an active member of a fire depart- ment of any city and county, city, town, or vil- lage in this State, or an exempt member of a duly organized fire company; 12. A superintendent, engineer, or conductor on a railroad; or, 13. A person drawn as a juror in any court of record in this State, upon a regular panel, who has served as such within a year; but this exemp- tion shall not extend to a person who is sum- moned as a juror for the trial of a particular case. [Approved March 27, 1897; Stats. 1897, c. 125. In effect immediately.] Exemption, how claimed, see. 202. Subd. 11. Exempt fireman, Polit. Code, sees. 3830, 3340. 93 JURORS. §§ 201-204 § 201. A juror shall not be excused by a court for slight or trivial cause, or for hardship or in- convenience to his business, but only when mate- rial injury or destruction to his property, or of property intrusted to him, is threatened, or when his own health, or the sicliness or death of a mem- ber of his family, requires his absence. § 202. If a person exempt from liability to act as a juror, as provided in section two hundred, be summoned as a juror, he may make and transmit his affidavit to the Cleric of the Court for which i he is summoned, stating- his office, occupation, or ;, employment; and such affidavit shall be delivered ^ by the Clerk to the Judge of the court where the i, name of such person is called, and if sufficient in I substance, shall be received as an excuse for non- ^ attendance in person. The affidavit shall then be f filed by the Clerk. AKTICLE III. OF SELECTING AND RETURNING JURORS. § 204. Jury lists, by whom and when to be made. § 205. How selection shall be made. § 206. Lists to contain how many names. § 208. Lists to be placed with Clerk. § 209. Duty of Clerk; jury boxes. § 210. Regular jurors to serve one year. § 211. Jurors to be drawn from boxes. § 204. In the month of .January in each year it shall be the duty of the Superior Court in each of the coimties of this State, to make an order desig- nating the estimated number of grand jurors, and also the number of trial jurors, that will, in the opinion of said court, be required for the transac- § 205 JURORS. 94 tion of the business of the court and the trial of causes therein during the ensuing year, and imme- diately after said order designating the estimated number of grand jurors shall be made, the court shall select and list the grand jurors required by said order to serve as grand jurors in said Su- perior Court during the ensuing year, or until new lists of jurors shall be provided; and said selec- tions and listings shall be made of persons suit- able and competent to serve as jurors, as set forth and required in sections two hundred and five and two hundred and six of this Code, which list of persons so selected shall at once be placed in the possession of the County Clerk; and immediately after said order designating the estimatd number or trial jurors shall be made, the Board of Super- visors shall select, as provided in sections two hun- dred and five and two hundred and six of this Code, a list of persons to serve as trial jurors in the Su- perior Court of said county during the ensuing year, or until a new list of jurors shall be pro- vided. In counties and cities and counties having a population of one hundred thousand inhabitants or over, such selection shall be made by a major- ity of the judges of the Superior Courts. [Amend- ment approved March 23, 1893; Stats. 1893, 297.] § 205. The selections and listings shall be made of persons suitable and competent to serve as jur- ors, who are assessed on the last preceding assess- ment roll of such county or city and county, and in malting such selections they shall talie the names of such only as are not exempt from serv- ing, who are in the possession of their natural fac- ulties, and not infirm or decrepit, of fair charac- ter and approved integrity, and of sound judg- ment. [Amendment approved March 23, 1893; Stats. 1893. 297.] 95 JURORS. §§ 206-210 § 206. The list of jurors, to be made as pro- vided in the preceding section, shall contain the number of persons which shall have been desig- nated by the court in its order. The names for such lists shall be selected from the different wards or townships of the respective counties, in proportion to the number of inhabitants therein, as nearly as the same can be estimated by the per- sons making said lists; and said lists shall be kept separate and distinct one from the other. [Amendment approved March 7, 1881; Stats. 1881, 70. In effect January 1, 1882.] § 207. [In enacting new section this number was omitted.] § 208. A certified list of the persons selected to serve as trial jurors shall at once be placed in the possession of and filed with the Clerk of the Su- perior Court. [Amendment approved March 23, 1803; Stats. 1893, 297.] § 209. On receiving such lists, the County Clerk shall file the same in his ofiice, and write down the names contained thereon on separate pieces of paper, of the same size and appearance, and fold each piece so as to conceal the name thereon. He shall deposit the pieces of paper hav- ing on them the names of the persons selected to serve as grand jurors in a box, to be called the •'grand jury box"; and those having on them the names of the persons selected to serve as trial jur- ors, in a box to be called the "trial jury box." [Amendment approved March 7, 1881; Stats. 1881, 70. In effect July 1, 1882.] <> 210. The persons whose names are so re- turned shall be known as regular jurors, and shall serve for one year, and until other persons are se- lected and returned. S§ 211, 214 JURORS. 96 § 211. The names of persons drawn for grand jurors shall be drawn from the "grand jury box," and the names of persons for trial jurors shall be drawn from the "trial jury box"; and if, at the end of the year, there shall be the names of per- sons in either of the said jury boxes who may not have been drawn during the year to serve, and have not served as jurors, the names of such per- sons may be placed on the list of jurors drawn for the succeeding year. [Amendment approved March 7, 1881; Stats. 1881, 70. In effect Januarv 1, 1882. J ARTICLE IV. OF DRAWING JURORS FOR COURTS OF RECORD. § 214. Order of judge or judges for drawing of jury. § 215. Sheriff to be notified. § 219. Drawing, how conducted. § 220. Preservation of ballots drawn. ^ 214. "Whenever the business of the Superior Court shall require the attendance of a trial jury for the trial of criminal cases, or where a trial jury shall have been demanded in any cause or causes at issue in said court, and no jury is in attendance, the court may make an order direct- ing a trial jury to be drawn, and summoned to attend before said court. Such order shall speci- fy the number of jurors to be drawn, and the time at which the jurors are required to attend. And the court may direct that such causes, either criminal or civil, in which a jury may be required, or in which a jury may have been demanded, be continued and fixed for trial when a jury shall be in attendance. See sec. 220, post. Superior Courts, sees. 65-79. 97 JURORS. §§ 215-219 § 215. Immediately upon the order mentioned in the preceding section being made, the cleric shall, in the presence of the court, proceed to draw the jurors from the "trial jury box." [Amend- ment approved March 7, 1881; Stats. 1881, 71. In effect January 1, 1882.] §§ 216, 217, 218. No sections of these num- bers. § 219. The clerli; must conduct said drawing as follows; 1. He must shali;e the box containing the names of the trial jurors, so as to mix the slips of paper upon which such names are written, as well as possible; he must then draw from said box as many slips of paper as are ordered by the court. 2. A minute of the drawing shall be entered in the minutes of the court, which must show the name on each slip of paper so drawn from said jury box. 3. If the name of any person is drawn from said box who is deceased or insane, or who may have permanently removed from the county, or who is exempt from jury service, and the fact shall be made to appear to the satisfaction of the court, the name of such person shall be omitted from the list, and the slip of paper having such name on it shall be destroyed, and another juror draw^n in his place, and the fact shall be entered upon the min- utes of the court. Tlie same proceeding shall be had as often as may be necessary, until the whole number of jurors required be drawn. After the drawing shall be completed, the clerlv shall mal^e a copy of the list of names of the persons so drawn, and certify the same. In his certificate he shall state the date of the order and of the draw- ing, and the number of the jurors drawn, and the time when and the place where such jurors are Code Civ. Proc— 9. §§ 220, 225 JURORS. 98 required to appear. Such certificate and list shall be delivered to the Sheriff for service. [Amend- ment approved March 7, 1881; Stats. 1881, 71. In effect January 1, 1882.] § 220. After a drawing of persons to serve as jurors, the Clerli shall preserve the ballots drawn, and at the close of the session or sessions for which the drawing was had, he shall replace in the proper box from which they were taken all ballots which have on them the names of per- sons, who did not serve as jurors for the session or sessions aforesaid, and who are not exempt or incompetent. ARTICLE V. OF SUMMONING JURORS FOR COURTS OF RECORD. § 225. Sheriff to summon jurors, how. § 226. Of drawing and summoning jurors to attend forth- with. § 227. .Of summoning jurors to complete a panel. § 228. Compensation of elisor. § 225. The Sheriff, as soon as he receives the list or lists of jurors drawn, shall summon the persons named therein to attend the court at the opening of the regular session thereof, or at such session or time as the court may order, by giving personal notice to that effect to each of them, or by leaving a written notice to that effect at his place of residence, with some person of proper age, and shall return the list to the court at the open- ing of the regular session thereof, or at such ses- sion, or time as the jurors may be ordered to at- tend, specifying the names of those who were summoned, and the manner in which each person was notified. ?5 JURORS. §§ 226-230 § 226. Whenever jurors are not drawn or sum- moned to attend any court of record or session thereof, or a sufficient number of jurors fail to ap- pear, such court may order a sufficient number to bf; forthwith drawn and summoned to attend the court, or it may, by an order entered in its min- utes, direct the Sheritf, or an elisor chosen by the court, forthwith to summon so many good and lawful men of the county, or city and county, to serve as jurors, as may be required, and in either case such jurors must be summoned in the man- ner provided iu the preceding section. § 227. When there are not competent jurors enough present to form a panel the court may di- rect the Sheriff, or an elisor chosen by the court, to summon a sufficient number of persons having the qualifications of jurors to complete the panel, from the body of the county, or city and county, and not from the bystanders; and the Sheriff or elisor shall summon the number so ordered ac- cordingly and return the names to the court. § 228. An elisor who shall, by order of a court of record, summon persons to serve as jurors, shall be entitled to a reasonable compensation for his services, which must be fixed by the court and paid out of the county or city and county treasury, and out of the general fund thereof. ARTICLE YI. OF SUMMONING JURORS FOR COURTS NOT OF REC- ORD. § 230. Jurors for Justices' or Police Courts. § 231. How to be summoned. § 232. Officer's return. § 230. When jurors are required in any of the Justices' Courts, or in any police or other inferior §§ 231-235 JURORS. 100 court, tliey shall, upon the order of the Justice, or auy one of the justices where there is more than one, or of the Judge thereof, be summoned by the Sheriff, constable, marshal, or policeman of the jurisdiction. Cause of challenge in justices' court in Hum- boldt: See post. Appendix, p. 860, Stat. § 231. Such jurors must be summoned from the persons competent to serve as jurors, residents of the city and county, township, city, or town in which such court has jurisdiction, by notifying theju orally that they are summoned, and of the time and place at which their attendance is re- quired. § 232. The officer summoning such jurors shall, at the time fixed in the order, for their appearance, return it to the court with a list of the persons summoned indorsed thereon. ARTICLE VII. OF SUMMONING JURIES OF INQUEST. § 235. How to be summoned, S 235. Juries of inquest shall be summoned by the officer before whom the proceedings in which they are to sit are to be had, or by any Sheriff, constable, or policeman, from the persons compe- tent to serve as jurors, resident of the county, or city and county, by notifying them orally that Ihey are so summoned, and of the time and place at Avhich their attendance is required. 101 JURORS. §§ 238, 241 ARTICLE VIII. OBEDIENCE TO SUMMONS, HOW ENFORCED. § 23S. Attachment and fine. § 238. Any juror summoned, who willfully and without reasonable excuse fails to attend, may be attached and compelled to attend; and the court may also impose a tine not exceeding fifty dollars, upon which execution may issue. If the juror was not personally served, the fine must not be imposed until upon an order to show cause an opportunity has been offered the juror to be heard. ARTICLE IX. OF IMPANELING GRAND JURIES. § 241. Grand jury, when to be impaneled. § 242. How constituted. § 243. Manner of impaneling prescribed in Penal Code. § 841. Every Superior Court, whenever in the opinion of the court the public interest must re- quire it, may make and file with the County Clerk, an order directing a jury to be drawn, and desig- nating the number, which, in case of a grand jury, shall not be less than twenty-five nor more than thirty. In all counties having less than three Su- perior Court judges, there shall be one grand jury drawn and impaneled in each year; and in all counties having three or more Superior Court judges, there shall be two grand juries drawn and impaneled in each year. Such order must desig- nate the time at which the drawing will take place. The names of such jurors shall be drawn, the list of names certified and summoned, as pro- vided for drawing and summoning trial jurors; §§ 242, 243 JURORS. 102 aud the names of any persons drawn, who may not be impaneled upon the grand jury, may be again placed in the grand jury box. [Amendment approved March 7, 1881; Stats. 1881, 71. In effect January 1, 1882.] Const. Cal. art. 1, sec. 8. § 242. When, of the persons summoned as grand jurors and not excused, nineteen are pres- ent, they shall constitute the grand jury. If more than nineteen of such persons are present, the Clerk shall write their names on separate ballots, which he must fold so that the names cannot be seen, place them in a box, and draw out nineteen of them, and the persons whose names are on the ballots so drawn shall constitute the grand jury. If less than nineteen of such persons are present, the panel may be lilled as provided in section two hundred and twenty-six of this Code. And when- ever, of the persons summoned to complete a grand jury, more shall attend than are required, the requisite number shall be obtained by writing the names of those summoned and not excused on ballots, depositing them in a box, and drawing as above provided. § 243. Thereafter such proceedings shall be had in impaneling the grand jury as are pre- scribed in Part II. of the Penal Code. See Penal Code, sees. 894-901. JURORS. §§ 246-250 AIITICLE X. OF IMPANELING TRIAL JURIES IN COURTS OF REC- ORD. § 246. Clerk to call list of jurors summoned. § 247. Manner of impaneling prescribed in part two. § 246. At the opening of court on the day trial jurors have been summoned to appear, the Clerk shall call the names of those summoned, and the court may then hear the excuses of jurors sum- moned. The Clerk shall then write the names of the jurors present and not excused upon separate slips or ballots of paper, and fold such slips so that the names are concealed, and there, in the presence of the court, deposit the slips or ballots in a box, which must be kept sealed or locked until ordered by the court to be opened. § 247. Whenever thereafter a civil action is called by the court for trial, and a jury is required, such proceedings shall be had in impaneling the trial jury as are prescribed in Part II. of this Code. If the action be a criminal one, the jury shall be impaneled as prescribed in the Penal Code. Civil action: See sees. 600-604. Criminal case: See Penal Code, sees. 1055-1088. ARTICLE XI. OF IMPANELING TRIAL JURIES IN COURTS NOT OF RECORD. § 250. Proceedings in forming jury. § 251. Manner of impaneling. § 250. At the time appointed for a jury trial in Justices, Police or other inferior courts, the §§ 251, 258 COURT COMMISSIONERS. 104 list of jurors summoned must be called, and the names of those attending- and not excused must be written upon separate slips of paper, folded so as to conceal the names, and placed in a box, from which the trial jury must be drawn. § 251. Thereafter, if the action is a criminal one, the jury must be impaneled as provided in the Penal Code; if a civil one, as provided in Part II. of this Code. See sec. 247. ARTICLE XII. OF IMPANELING JURIES OF INQUEST. § 254. Manner of impaneling. § 254. The manner of impaneling juries of in- quest is prescribed in the provisions of the differ- ent codes relating to such inquests. CHAPTER II. COURT COMMISSIONERS. § 258. Appointment and qualifications. § 259. Powers of court commissioners. § 258, The Superior Court of every city and county in the State may appoint six commission- ers, to be designated each as "court commission- ers" of such city and county; and the Superior Court of every other county in the State may ap- point one commissioner, to be designated as "court commissioner" of such county. Sucli commission- ers shall be citizens of the United States, and resi- dents of the city and county, or county, in which 105 COURT COMMISSIONERS. § 259 they are appointed, and hold offices during the pleasure of the courts appointing them. Const. Cal. art. 0, sec. 14. § 259. Every Court Commissioner shall have power: 1. To hear and determine ex parte motions for orders and writs, except orders or writs of in- junction in the Superior Court of the county, or city and county, for which he is appointed; pro- vided, that he shall have power to hear and de- termine such motions only in the absence or in- ability to act of the Judge or Judges of the Supe- rior Court of the county, or city and county; 2. To take proof and report his conclusions thereon as to any matter of fact other than an issue of fact raised by the pleadings, upon which information is required by the court; but any par- ty to the proceedings may except to such report within five days after written notice that the same has been filed, and may argue his exceptions before the court on giving notice of motion for that purpose; 3. To tal^e and approve bonds and undertakings whenever tlie same may be required in actions or proceedings in such Superior Courts, and to exam- ine the sureties thereon when an exception has been taken to their sufficiency, and to administer oaths and affirmations, and take afiidavits and dep- ositions in any action or proceeding in any of the courts of this State, or in any matter or proceeding whatever, and to take acknowledgments and proof of deeds, mortgages, and other instruments requir- ing proof or acknowledgment for any purpose un- der the laws of this State; 4. To charge and collect the same fees for the performance of official acts as are now or may hereafter be allowed by law to notaries public in this State for like services; provided, that this § 262 OF MINISTERIAL OFFICERS GENERALLY. 106 subdiTision shall not apply to any services of such eommissioner, the compensation for which is ex- pressly fixed by law; 5. To provide an official seal, upon which must be engraved the words "Court Commissioner" and the name of the county, or city and county, in which said commissioner resides; 6. To authenticate with his official seal his offi- cial acts. Judicial powers, persons having, order enforced before, sec. 128, subd. 2, Keferences and trials by referees: See post, sees. 638 et sea. Subd. 4. Fees of notaries public: See Polit. Code, sec. 798. Justices of the peace and court commissioners are the only judicial officers who are authorized to receive fees: Const. Cal. art. 6, sec. 15. Subd. 5. Official seals defined: See ante, sec. 14. TITLE IV. MINISTERIAL OFFICERS OF COURTS OF JUSTICE. Chapter I. Of Ministerial Officers generally, § 262. II. Secretaries and Bailiffs of the Su- preme Court. §§ 265, 266. III. Phonographic Reporters, §§ 268-269. CHAPTER I. OF MINISTERIAL OFFICERS GENERALLY. § 262. Election, powers, and duties, where prescribed. § 262. The modes and times of election, terms, powers, and duties of the Attorney General, Clerk of the Supreme Court. Reporter of the Decisions 107 SECRETARIES AND BAILIFFS. §§ 265-26o of the Supreme Court, clerks, sheriffs, and coro- ners, are prescribed in the Political and Penal Codes. Attornej' General: See Polit. Code, sees. 470 et seq. Clerk of Supreme Court: Polit Code, sees. 749 et seq. Reporter of Supreme Court Decisions: Polit. Code, sees. 771 et seq. County clerks: Polit Code, sees. 4204 et seq. Sheriflfs: Polit. Code, sec. 4176; Pen. Code, sees. 1216 et seq.; 1601 et seq. Coroners: Polit. Code, sees. 4285 et seq.; Pen. Code, sec. 1510. CHAPTER II. SECRETARIES AND BAILIFFS OF THE SUPREME COURT. § 265. Appointment. § 236. Tenure of office, and duties. § 265. The Justices of the Supreme Court may appoint two secretaries and two bailiffs, who shall be citizens of the United States and of this State. § 266. The secretaries and bailiffs shall hold tlieir offices at the pleasure of the justices, and shall perform such duties as may be required of them by the court or any justice thereof. §§ 268, 269 PHONOGRAPHIC REPORTERS. 108 CHAPTER III. PHONOGRAPHIC REPORTERS. § 268. Phonographic reporters for Supreme Courts, wheie provided for. § 269. Phonographic reporters for Superior Courts, their appointment, and duties. § 270. Qualifications and test of competency. § 271. Attention to duties; reporters pro tempore. § 272. Oath of office. § 273. Reports prima facie correct statements. § 274. Compensation. § 268. Phonograpliic reporters for the Supreme Court are provided for iu Part HI. of the Political Code. See Polit. Code, see. 739, as to salaiy, sec. 769 as to appoiutmeiit, and sec. 770 as to duty, of phonographic reporter of Supreme Court. § 2169. The Judge or Judges of any Superior Court in the State may appoint a competent phon- ographic reporter, or as many such reporters as tliere are judges, to be l^nown as official reporter or reporters of such court, and to hold office dur- ing the pleasure of the judge or judges appointing them. Such reporter, or any one of them, where there are two or more, shall, at the request of eitlier party, or of the court in a civil action or proceeding, and on the order of the court, the Dis- trict Attorney, or the attorney for defendant in a criminal action or proceeding, talve down in short- hand all the testimony, the objections made, tlie rulings of the court, the exceptions taken, and oral instructions given, and if directed by the court, or requested by either party, shall within such rea- sonable time after the trial of such case as the court may designate, write out the same in plain, 109 PHONOGRAPHIC REPORTERS. §§ 270, 271 legible long-hand, and verify and file it with the Cleric of the Court in Avhicli the ease was tried. § 270. Xo person shall be appointed to the posi- tion of official reporter of any court in this State, except upon satisfactory evidence of good moral character, and without being first examined as to his competency by at least three members of the bar practicing in said court, such members to be designated by the judge or judges of said court. The committee of members of tlie bar so desig- nated shall, upon the request of the Judge or judges of said court, examine any person as to his qualifications whom said Judge or judges may wish to appoint as official reporter; and no person shall be appointed to such position upon whose qualifications such committee shall not have re- ported favorably. The test of competency before such committee shall be as follows: The party ex- amined must Avrite in tlie presence of said commit- tee at the rate of at least one hundred and fifty words per minute, for five consecutive minutes, upon matter not previously written by or known to him, immediately read the same bacli to the committee, and transcribe the same into longhand writing, plainly and with accuracy. If he pass such test satisfactorily, the committee shall fur- nish him with a written certificate of that fact, signed by at least a majority of the members of the committee, which certificate shall be filed among the records of the court. § 271. The official reporter of any Superior Court shall attend to the duties of his office in per- son, except when excused for good and sufficient reason by order of the court, which order shall be entered upon the minutes of the court. Employ- ment in his professional capacity elsewhere shall Code Civ. Proc— 10. |§ 272-274 PHONOGRAPHIC REPORTERS. 110 not be deemed a good and sufficient reason for such excuse. When the official reporter of any court lias been excused in the manner provided in this section, the court may appoint an official re- porter pro tempore, who shall perform the same duties and receive the same compensation during the term of his employment as the official reporter. § 272. The official reporter of any court, or offi- cial reporter pro tempore, shall, before entering upon the duties of his office, talve and subscribe the constitutional oath of office. § 273. The report of the official reporter, or offi- cial reporter, pro tempore, of any court, duly ap- pointed and sworn, when written out in long- hand writing, and certified as being a correct transcript of the testimony and proceedings in the case, shall be, prima facie, a correct statement of such testimony and proceedings. § 274. The official reporter shall receive as com- pensation for his services a monthly salary to be fixed by the Judge by an order duly entered on the minutes of the Court, which salary shall be paid out of the treasury of the county in the same man- ner and at the same time as the salaries of county officers; provided, that said monthly salary for each Superior Court, or department thereof, shall not exceed the following maximum: In counties having a population of one hundred thousand and over, three hundred dollars; in counties having a population less than one hundred thousand and ex- ceeding fifty thousand, two hundred and seventy- five dollars; in counties having a population less than lifty thousand and exceeding thirty thou- sand, two hundred and fifty dollars; in counties having a population less tlian thirty thousand and ('xceeding twenty thousand, two hundred and Ill PHONOGRAPHIC REPORTERS. § 274 twenty-five dollars; in counties having a popula- tion less than tvventy thousand and exceeding fif- teen thousand, two hundred dollars; in counties having a population less than fifteen thousand and exceeding twelve thousand five hundred, one hun- dred and seventy-five dollars; in counties having a population less than twelve thousand five hundred and exceeding ten thousand, one hundred and fifty dollars; in counties having a population less than ten thousand and exceeding seven thousand five hundred, one hundred and twenty-five dollars; in counties having a population less than seven thousand five hundred and exceeding five thousand one hundred dollars; and in counties having a pop- ulation less than five thousand, seventy-five dol- lars; and, further provided, that where both par- ties to a civil action, or either, require the testi- mony therein to be written out in full as the trial progresses, the official reporter shall be allowed the extra expense occasioned, to be audited by the Judge, and paid by the party or parties ordering the same; provided further, that in departments of Superior Courts devoted exclusively to the trial of criminal cases, the Judge of the Court shall, in addition, fix and allow a reasonable compensation for the transcription of testimony, to be paid out of the county, or citj^ and county, treasury, upon the order of the Judge. In civil cases in which the testimony is talvcn down by the official report- er, each party shall pay a per diem of two dollars and fifty cents before judgment of verdict therein is entered; and where the testimony is transcribed, the party or parties ordering it shall pay ten cents per folio for such transcription on delivery there- of; said per diem and transcription fees to be paid to the Clerk of the Court, and by him paid into the treasury of the county, and such portion as shall be paid by the prevailing party may be taxed f?§ 274, 27o ATTORNEYS, ETC., AT LAW. 112 as costs in the case. Where there is no regular otficial reporter, and one is appointed temporarily hy the Court, he shall receive for his services and expenses of attendance, in lieu of the salary pro- vided in this section, such compensation as the court may deem reasonable; to he paid, if a civil case, by both parties, or either of them, as the Judge shall direct; and, if a criminal case, to be paid out of the treasury of the county on the order of the court. [Amendment approved March 21, 1885; Stats. 1885. In etfect March 23, 1885.] ClIAPTEll I. ATTORNEYS AND COUNSELLORS AT LAW. § 275. W^ho may be admitted as attorneys. § 276. Qualifications. § 277. Certificate of admission and license. § 278. Oath. § 279. Attorneys of other States. § 280. Roll of attorneys. § 281. Penalty for practicing without license. § 282. Duties. § 283. Authority. § 284. Change of attorney. ; • ■ § 285. Notice of change. § 286. Death or removal of attorney. § 287. Removal and suspension. § 288. Conviction of felony. § 289. Proceedings for removal or suspension. § 290. Accusation. § 291. Verification. § 292. Citation. § 293. Appearance. § 294. Objections to accusation. § 295. Demurrer. H 297. Trial. § 296. Answer. § 298. Reference to take depositions. § 299. Judgment. § 275. Any citizen or person resident of this State, who has bona fide declared his or her inteu- U3 ATTORNEYS, ETC., AT LAW. §§ 276, 277 tion to become a citizen in the manner required by law, of the age of twenty-one years, of good moral character, and who possesses the necessary qualilications of learning and ability, is entitled to admission as attorney and counsellor in all the courts of this State. All persons are attorneys of the Supreme Court who were on the first day of January, eighteen hundred and eighty, entitled to practice in the court superseded thereby. Admission of attorneys: See sections following this. Judges must be licensed attorneys: Sees. 156, 157. Judicial and ministerial officers, not to practice: See Polit. Code, sec. 4121; sees. 171, 172, ante. Removal of attorneys: See sec. 287. § 276. Every applicant for admission as an at- torney and counsellor must produce satisfactory testimonials of a good moral character and under- go a strict examination in open court as to his qualifications, by the Justices of the Supreme Court, or by the justices sitting and holding one of the departments thereof, or by not less than three of the Supreme Court Commissioners, to be designated and appointed by the Chief Justice of the Supreme Court to conduct publicly the exami- nation, such commissioners to report the results of the examination to the Supreme Court for final action. [Amendment approved March IG, 1895; Stats. 1895, 56. In effect March 16, 1895.] Examination of candidate: See sec. 129; Su- preme Court, rule 1. § 277. If, upon examination, he is found quali- fied, the Supreme Court, or department thereof be- fore which he is examined, shall admit him as an attorney and counsellor in all the courts of this State, and shall direct an order to be entered to §§ 278-281 ATTORNEYS, ETC., AT LAW. 114 that elTect upon its records, and that a certificate of such record be given to him by the Clerk of the Court, which certificate shall be his license. Disbarment: See sec. 287. § 278. EA'ery person, on his admission, must take an oath to support the Constitution of the United States and the Constitution of the State of California, and to faithfully discharge the duties of an attorney and counsellor at law to the best of his kuoAvledge and ability. A certificate of such oath must be indorsed upon the license. Duties: See sec. 282. § 279. Every citizen of the United States, or person resident of this State, who has, bona fide, declared his intention to become a citizen in the manner required by law, who has been admitted to practice law in the highest court of a sister State, or of a foreign country, where the common law of England constitutes the basis of jurispru- dence, may be admitted to practice in the courts of this State, upon the production of his or her license, and satisfactory evidence of good moral character; but the court may examine the appli- cant as to his or her qualifications. "State" and "United States," defined, sec. 17, subd. 7. § 280. Every Clerk shall keep a roll of attor- neys and counsellors admitted to practice by the court of wliich he is clerk, which roll must be signed by the person admitted before he receives his license. Attorneys of the Supreme Court, sec. 275. ij 281. If any person shall practice law in any court, except a justice's court or police court, with- out having received a license at attorney and coun- sellor, he shall be guilty of a contempt of court. 315 ATTORNEYS, ETC., AT LAW. §§ 282, 283 Contempt, sec 1209 et seq. Justices' court practitioners, sec 9G. § 282. It is the duty of an attorney and coun- sellor: 1. To support the Constitution and laws of the I'nlted States and of this State; 2. To maintain the respect due to the courts of justice and judicial ofhcers; 3. To counsel or maintain such actions, pro- ceedings, or defenses only as appear to him legal or just, except the defense of a person charged with a public offense; 4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seelx to mislead the judge or any judicial officer by an artifice or false statement of fact or law; 5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client; G. To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged ; 7. Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest; 8. Never to reject, for any consideration per- sonal to liimself, the cause of the defenseless or the oppressed. Subd. 1. Oath, sec. 278. Subd. 3. Offender, public— defense of: See Penal Code, sec. 987; see also, subd. 8. § 283. An attorney and counsellor shall have aulliority: 1. To bind his client in any of the steps of an a(^tion or proceeding by his agreement filed with §§ 284-287 ATTORNEYS, ETC., AT LAW. 116 the Clerk, or entered iipoii tlie minutes of the court, and not otlierwise; 2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his au- thority is tiled, and upon the payment thereof, and not otherwise, to discharge the claim or acknowl- edge satisfaction of the judgment. Frivileged communications: See sec. 1881. § 2S4. The attorney in an action or special pro- ceeding may be changed at any time before or af- ter judgment or final determination, as follows: 1. Upon consent of both client and attorney, filed with the Clerk, or entered upon the minutes; 2. Upon the order of the court, upon the appli- cation of either client or attorney, after notice from one to the other. Notice of substitution: See next section. § 285. When an attorney is changed, as pro- vided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney. § 286. When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or to appear in person. § 287. An attorney and counsellor may be re- moved or suspended by the Supreme Court, or any department thereof, or by any Superior Court of the State, for eitlier of the following causes, aris- ing after his admission to practice: i. His conviction of a felony or misdemeanor 117 ATTORNEYS, ETC., AT LAW. §§ 288-290 involving moral turpitude, in wliicli case the rec- ord of conviction sliall be conclusive evidence; 2. Willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with, or in the course of his profession, M'hich he ought in good faith to do or forbear, and any violation of the oath talvcn by him, or of his duties as such attorney and counsellor; 3. Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding; 4. Lending his name to be used as attorney and counsellor by another person who is not an attor- ney and counsellor. In all cases where an attorney is removed or sus- pended by a Superior Court, the judgment or order of removal or suspension may be reviewed on ap- peal hy the Supreme Court, Attorney has right to mal^e a defense: See sec. 292. § 288. In case of the conviction of an attorney or counsellor of a felony or misdemeanor, involv- ing moral turpitude, the Cleric of the court in which such conviction is had shall, within thirty days thereafter, transmit to the Supreme Court a certified copy of the record of conviction, § 289. The proceedings to remove or suspend an attorney and counsellor, under the first subdi- vision of section two hundred and eighty-seven, must be taken by the court on the receipt of a cer- tified copy of the record of conviction. The pro- ceedings under tlie second, third', or fourth subdi- visions of section two hundred and eighty-seven may be taken by the court for the matters within its knowledge, or may be taken upon the informa- tion of another. § 290. If the proceedings are upon the infer- §§ 291-297 ATTORNEYS, ETC., AT LAW. 118 mation of auother, the accusation must be iu writ- ing. § 291. The accusation must state the matters charged and be verified by the oath of some per- son to the efCect that the cliarges therein contained are true. § 292. Upon receiving the accusation, the court shall make an order requiring the accused to ap- pear and answer it at a specified time, and shall cause a copy of the order and of the accusation to be served upon the accused at least five days be- fore the day appointed in the order. § 293. The accused must appear at the time ap- pointed in the order and answer the accusations, unless for sulficient cause the court assign an- other day for that purpose. If he do not appear, the court may proceed and determine the accusa- tion in his absence. § 294. The accused may answer to the accusa- tion either by objecting to its sufficiency or deny- ing it. § 295. If he object to the sufficiency of the ac- cusation, the objection must be in writing, but need not be in any specific form, it being suffi- cient if it presents intelligibly the grounds of the objection. If he deny the accusation, the denial may be oral and without oath, and must be en- tered upon the minutes. § 296. If an objection to the sufficiency of the accusation be not sustained, the accused must an- swer \\'ithin such time as may be designated by the court. § 297. If the accused plead guilty, or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he deny 119 OTHER PERSONS SO INVESTED. §§ 298, 304 the matters charged, the court shall, at such time as it may appoint, proceed to try the accusation. § 298. The court may, in its discretion, order a reference to a committee to take depositions in the matter. § 299. Upon conviction, in cases arising under the first subdivision of section two hundred and eighty-seven, the judgment of the court must be that the name of the party shall be stricken from the roll of attorneys and counsellors of the court, and that he be precluded from practicing as such attorney or counsellor in all the courts of this State; and upon conviction in cases under the other subdivisions of that section, the judgment of the court may be according to the gravity of the offense charged; deprivation of the right to practice as attorney or counsellor in the courts of this State permanently, or for a limited period. CHAPTER II. OTHER PERSONS INVESTED WITH SUCH POWERS. § 304. Receivers, executors, administrators, and guardians. § 304. The appointment, powers, and duties of receivers, executors, administrators, and guard- ians, are provided for and prescribed in parts two and three of this Code. Receivers, sees. 564-569. Executors and administrators, sees. 1349-1440, 1581-1591; also, sees. 1612-1658, and 1726-1743. Guardians, sees. 1747-1809. The foregoing section ends Part I., which was entirely amended; and the foregoing Part I. adopted as a substitute therefor, by act approved April 1, 1880— Amendments 1880, 21 (Ban. ed. 63); took effect immediately— repealed all acts and parts of acts in conflict therewith. PART II. OF CIVIL ACTIONS. Title I. Form of Civil Actions, §§ 307-309. II. Time of Commenciug Civil Actions, §§ 312-3G2. III. Parlies to Civil Actions, §§ 3G7-389. IV. Place of Trial of Civil Actions, §§ 392-400, V. Manner of Commencing Suit, §§ 405-416. VI. Pleadings in Civil Actions, §§ 420-476. VII. Provisional Remedies in Civil Actions, §^ 478-574. VIII. Trial and Judgment in Civil Actions, §§ 577-675. IX. Execution of the Judgment in Civil Ac- tions, §§ 081-721. X. Actions in Particular Cases, §§ 726-827. XI. Proceedings in Justices' Courts, §§ 832- 925. XII. Proceedings in Police Courts, §§ 929-933. XIII. Appeals in Civil Actions, §§ 936-980. XIV. Miscellaneous Provisions, §§ 989-1058. TITLE I. OF THE FORM OF CIVIL ACTIONS. § 307. One form of civil action only. § 308. Parties to actions, how designated. § 309. Special isues not made by pleadings, how tried. § 307. There is in this State but one form of civil actions for the enforcement or protection of 121 TIME OF COMMENCING ACTIONS. §§ 308, 312 private rights and tlie redress or prevention of private wrongs. § 308. In siicli action, tlie party complaining is Ivnown as ibe plaintiff, and the adverse party as the defendant. § 309. A question of fact not put in issue by the pleadings may be tried by a jury, upon an or- der for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial. Equity cases, issues in, sec. 592. TITLE II. OP THE TIME OF COMMENCING ACTIONS. Chapter I. The time of commencing actions in general, § 312. II. The time of commencing actions for the recovery of real property, §§ 315- 328. III. The time of commencing actions other than for the recovery of real prop- erty, §§ 335-345. IV. General provisions as to the time of commencing actions, §§ 350-362. CHAPTER I. THE TIME OF COMMENCING ACTIONS IN GENERAL. § 312. Commencement of civil actions. S 312. Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have ac- crued, unless where, in special cases, a different Code Civ. Proc— 11. § 315 TIME OP COMMENCING ACTIONS. 122 limitatiou is prescribed by statute. [Approved February 21, 1897; Stats. 1897, e. 21.] On a current account, the cause accrues from time of last item: Sec. 344. CHAPTER II. THE TIME OF COMMENCING ACTIONS FOR THE RE- COVERY OF REAL PROPERTY. § 315. When the people will not sue. § 316. When action cannot be brought by grantee from the State. § 317. When actions by the people or their grantees are to be brought within five years. § 318. Seizin within five years, when necessary in action for real property. § 319. Such seizin, when necessary In action or defense arising out of title to or rents of real property. § 320. Entry on real estate. § 321. Possession, when presumed. Occupation deemed un- der legal title, unless adverse. § 322. Occupation under written instrument or judgment, when deemed adverse. § 323. What constitutes adverse possession under written instrument or judgment. § 324. Premises actually occupied under claim of title deemed to be held adversely. § 325. What constitutes adverse possession under claim of title not written. § 326. Relation of landlord and tenant, as affecting adverse possession. § 327. Right of possession not affected by descent cast. § 328. Certain disabilities excluded from time to com- mence actions. § 315. The people of this State will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the ])eople to the same, unless: 1. Such ri.ijht or title shall have accrued with- in ten years before any action or other proceeding for the same is commenced; or, 2. The people, or those from whom they claim, slinll have received the rents and profits of such 123 TIME OF COMMENCING ACTIONS. §§ 316-319 real property, or of some part thereof, within the space of ten years. Title by occupancy: Civ. Code, sec. 1007. § 316. No action can be brought for or in re- spect to real property by any person claiming un- der letters patent or grants from this State, un- less the same might have been commenced by the people as herein specified, in case such patent had not been issued or grant made. § 317. When letters patent or grants of real property issued or made by the people of this State are declared void by the determination of a competent court, an action for the recovery of the property so conveyed may be brought, either by the people of the State, or by any subsequent patentee or grantee of the property, his heirs or assigns, within five years after such determina- tion, but not after that period. [In effect July 1, 1874.] § 318. No action for the recovery of real prop- erty, or for the recovery of the possession thereof, can be maintained, unless it appear that the plain- tiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, Avithin five years before the commencement of the action. Adverse possession: Sec. 321, infra. Trespass upon real property, action for, must be brought v.ithin three years: Sec. 338, post. Possession, presumptive evidence of ownership: See sec. 1963, subd. 11. Action includes a special proceeding of a civil nature: Sec. 363, post. § 319. No cause of action, or defense to an ac- tion, arising out of the title to real property, or to §§ 320-322 TIME OF COMMENCING ACTIONS. 124 rents or profits out of the same, can be effectual, unless it appear that the person i)rosecutiug the action, or making- the defense, or under whose title the action is prosecuted or tlie defense is made, or the ancestor, predecessor or grantor of such person, Avas seized or possessed of tlie prem- ises in question witliin live years before the com- mencement of the act in respct to which such ac- tion is prosecuted or defense made. Action includes a special proceeding of a civil nature: Sec. 3Go, § 320, No entry upon real estate is deemed suf- ficient or valid as a claim, unless an action be commenced thereupon within one year after mak- ing such entry, and Avitliin live years from the time when the right to make it descended or ac- crued. § 321. In every action for the recovery of real property, or the possession thereof, the person es- tablishing a legal title to the property is pre- smned to have been possessed thereof within the time required by laAv, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action. Adverse possession: Sees. 322-325. Forcible entry, one year: Sec. 1172. Payment of taxes: See sec. 325. infra, § 322, AVlien it appears that tlie occupant or those under whom he claims, entered into the pos- session of the property under claim of title, exclu- sive of other rigln, founding such claim upon a written iustninu>nt, as being a conveyance of the 125 TIME OF COMMENCING ACTIONS. §§ 323, 324 propertj- in question, or upon the decree or judg- ment of a competent court, and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment, or of some part of the property, under such claim, for five years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract. Entry not under written instrument: See sec. 325. § 323. For the purpose of constituting an ad- verse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases: 1. Wliere it has been usually cultivated or im- proved ; 2. Where it has been protected by a substantial inclosure; o. AVhere, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for Ihe ordinary use of the occupant; 4. AVhere a icnown farm or single lot has been partly improved, the portion of such farm or lot tliat may have been left not cleared, or not in- closed accoi-ding to the usual course and custom of the adjoining countiy, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. § 324. AVhere it appears that there has been an actual, continued occupation of land, under a claim of title, exclusive of any other riglit, but not founded upon a written instrument, judgment^ §§ 325, 326 TIME OF COMMENCING ACTIONS. 126 or decree, the land so actually occupied, and no other, is deemed to have been held adversely. Prescription, title by Civ. Code, sec. 1007. § 325. For the purpose of constituting an ad- verse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and oeoiipied in the following cases only: 1. Where it has been protected by a substantial inclosure; 2. Where it has been usually cultivated or im- proved. Provided, however, that in no case shall adverse pt)ssessiou be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their pre- decessors and grantors, have paid all the taxes. Slate, county, or municipal, which have been lev- ied, and assessed upon such land. [Amendment approved April 1, 1878; Amendments 1878-9, 99. In effect sixty days after passage.] S 326. When the relation of landlord and ten- ant has existed between any persons, the .posses- V, sion of the tenant is deemed the possession of the landlord until the expiration of five years from the termination of the tenancy, or Avhere there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may hav<^ claimed to hold adversely to his landlord. Bui such presumption cannot be maae after the pe- riods herein limited. Tenant denying landlord's title: Sec. 1962, subd. 4. 127 TIME OF COMMENCING ACTIONS. §§ 327, 328 § 327. The right of ;i persoii to the possession of real properly is uot impaired or affected by a descent cast in consequence of tlie deatli of a per- son in i)Ossessiou of such property. § 328. If a person entitled to commence an ac- ii"U for the recovery of real property, or for Iho recovery of the possession thereof, or to make any entry or defense founded on the title to real proj)- erty, or to rents or services out of the same, be, at the time such title first descends or accrues, either: 1. Within the age of majority; or, 2. Insane; or, 8. Imprisoned on a criminal charge, or in ext?- cntioii upon conviction of a criminal offense, for a term less than for life; or, 4. A married woman, and her husband be a necessary party v^ith her in commencing such ac- tion or mailing such entry or defense. . The time during which such disability continues is not deemed any portion of the time in this chap- ter limited for the commencement of such action, or the making of such entry or defense, but such action maj^ be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled who shall die under such disabil- ity; but such action shall not be commenced, or entry or defense made, after that period. 8ee post, sec. 354. Absence from State: See post, sec 351. Successive disabilities: See post, sec. 358. §§ 335-337 TIME OF COMMENCING ACTIONS. CHAPTER 111. THE TIME OP COMMENCING ACTIONS OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. § 335. Periods of limitation prescribed. § 336. Within five years. § 337. Witliin four years. § 338. Within three years. § 339. Within two years. § 340. Within one year. § 341. Within six months. § 342. Same. § 343. Actions for relief not hereinbefore provided for. § 344. Where cause of action accrues on mutual account. § 345. Actions by the people subject to the limitations of this chapter. § 346. Action to redeem mortgage. § 347. Same, when some of mortgagors are not entitled to redeem. § 348. No limitations where money deposited in bank. § 335. Tlie periods prescribed for tlie 'Com- mencement of actions other tlian for tlie recove^*y of real property, are as follows: § 336. Within live years: 1. An action upon a judgment or decree of any court of the United States, or of any State with' a the United States; 2. An action for mesne profits of real property. [Amendment approved March 24, 1874; AiiK^nd- meuts 1873-4, 291. In effect July 1, 1874.] Foreign liability: Sec. 361. S 337. Within four years: An action upon any contract, obligation, or lia- bility, founded upon an instrument in writing e?Cv> cuted in this State, f Amendment approved March 24, 1874; Amendments 1873-4, 291. In effect July 1, 1874.] Four years—limitation where no other provision: Sec. 343. 129 TIME OP COMMENCING ACTIONS. §§ 338, 339 Absence of mortgagor from State: Sec. 361, post. Undertakings on appeal: See post, sec. 941. 15 338. Within three years: 1. An action upon a liability created by statute other than a penalty- or forfeiture; 2. An action for trespass upon real property; 3. An action for talcing, detaining, or injuring any goods or chattels, including actions for the specific recoverj^ of personal propertj^; 4. An action for relief on the ground of frnud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, hy the aggrieved party, of the facts constituting the frnud or mistake. Statutory penalty: See sec. 340, subd. 1. Executor or administrator. — Limitation of ac- tions to set aside sale, three years: Sees. 1573, 1589, post. Corporations and stockholders, limitation as re- gards them: See post, sec. 359. § 339. Within two years: 1. An action upon a contract, obligation, or lia bility, not founded upon an instrument of writing, or founded upon an instrument of writing exe- cuted out of tlie State; 2. An action against a sheriff, coroner, or con- stable, upou a liability incurred by the doing of an act in his ofHcial capacity, and in virtue of his of- fice, or by the omission of an otficial duty, includ- ing the nonpayment of monej- collected upon an execuiion. F.ut this subdivision does not apply to an action for an escape; 3. An action to recover damages for the death of one caused by the wrongful act or neglect of another. [Amendment approved March 24, 1874; Amendments 1873-4, 291. In effect July 1st, 1874.] §§ 340, 341 TIME OF COMMENCING ACTIONS. 130 Mutual account: See post, sec. 344. Actions for escape: See infra, sec. 340, subd. 4. § 340. Within one year: 1. An action upon a statute for a penalty or forfeiture, when the action is given to an individ- ual, or to an individual and the State, except when the statute imposing it prescribes a different lim- itation; 2. An action upon a statute, or upon an under- taliing in a criminal action, for a forfeiture or penalty to tiie people of the State; 3. An action for libel, slander, assault, battery, false imprisonment or seduction; 4. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process; 5. An action against a municipal corporation for damages or injuries to property caused by a mob or riot. [Amendment approved January 27, 1876; Amendments 1875-6, 89. In effect January 27, 1876.] One year— forcible entrj^ adverse holding, sec. 1172; against decedent's representatives, sec. 353; after reversal on appeal, sec. 355; entry upon real property, sec. 320. § 341. Within six months: An action against an officer, or officer de facto: 1. To recover any goods, wares, merchandise, or other property, seized by any such officer in his official capacity as tax collector, or to recover the price or value of any goods, wares, merchandise, or other personal property so seized, or for dam- ages for the seizure, detention, sale of, or injury to any goods, wares, merchandise, or other per- sonal property seized, or for damages done to any person or property in malting any such seizure; 131 TIME OF COMMENCING ACTIONS. §§ 342-346 2. To recover stock sold for a delinquent assess- ment, as provided in sec. 347 of the Civil Code. [Amendment approved March 24, 1874; Amend- ments, 1873-4. 292. In effect July 1, 1874.] Stoclv sold for assessment— Civ. Code, sec. 347. Six months— against count5% sec. 342; by dece- dent's representatives, sec. 353. § 342. Actions on claims against a county, which have been rejected by the board of super- visors, must be commenced within six months af- ter the first rejection thereof by such board. Action for riot: See sec. 340, subd. 5, supra. § 343. An action for relief not hereinbefore pro- vided for, must be commenced within four years after the cause of action shall have accrued. Bank deposits, no limitation: Sec. 348. § 344. In an action brought to recover a bal- ance due upon a mutual, open, and current ac- <:ount, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side, § 345. The limitations prescribed in this chap- ter apply to actions brought in the name of the State, or for the benefit of the State, in the same manner as to actions by private parties. Action by people: Sec. 315. § 346. An action to redeem a mortgage of real property with or without an account of rents and profits, may be brought by the mortgagor, or those claiming under him, against the mortgagee in pos- session, or those claiming under him, unless he or tliey have continuously maintained an adverse pos- §§ 347, 348 TIME OF COMMENCING ACTIONS. 132 session of the morli,^aged premises for five years after breach of some condition of the mortgage. "Action" iuclndes a special proceeding of a civil nature: Sec. 363. § 347. If there is more than one sncli mortgagor, or more than one person claiming under a mortga- gor, some of whom are not entitled to maintain such an action, under the provisions of this chapter, anyone of them, who is entitled to maintain such an action, may redeem therein a divided or undivided part of the mortgaged premises, according as his • interest may appear, and have an accounting for a part of the rents and profits, proportionate to his interest in the mortgaged premises, on payment of a part of the mortgage money, bearing the same proportion to the whole of such money as the value of his divided or undivided interest in the premises bears to the whole of such premises. S 348. To actions brought to recover money or other property deposited with any bank, banlvcr, trust company, or savings and loan society, there is no limitation. [New section approved March 24, 1874; Amendments 1873-4, p. 293. In effect July 1st, 1874. J See sec. 359, post. No limitation of action for money deposited wiTli banlcer: See post, Appendix, p. 874, Stat. Lost certificates of deposit, statute relating to actions on: See post. Appendix, p. 874, Stats. 133 TIME OF COMMENCING ACTIONS. §§ 350-352 CHAPTER IV. GENERAL PROVISIONS AS TO THE TIME OF COM- MENCING ACTIONS. § 350. When an action is commenced. § 351. Exception, where defendant is out of the State. § 352. Exception as to persons under disabilities. § 353. Provision where person entitled dies before limita- tion expires. § 354. In suits by aliens, time of war to be deducted. § 355. Provision where judgment has been reversed. § 356. Provision where action is stayed by injunction. § 357. Disability must exist when right of action accrued. § 358. When two or more disabilities exist, etc. § 359. This title not applicable to actions against directors, etc. Limitations in such cases prescribed. § 360. Acknowledgment or new promise must be in writing. § 361. Limitation laws of other States, effect of. § 362. Existing causes of action not affected. § 363. "Action" includes a special proceeding. § 350. An action is commenced, within the meaning- of this title, when the complaint is filed. Stats. 1850, p. 343. § 351. If, when the cause of action accrues against a person, he is out of the State, the ac- tion may be commenced within tiie term herein limited, after liis return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action. § 352. If a person entitled to bring an action, j mentioned in chapter tliree of this title, be at the time the cause of action accrued, either — 1. Within the age of majority; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execu- tion under the sentence of a criminal court for a term less than for life; or, Code Civ. Proc— 12 |§ 353-355 TIME OP COMMENCING ACTIONS. 134 4. A married woman, and her husband be a necessary party with her in commencing such ac- tion; The time of such disability is not a part of the time limited for the commencement of the action. Stats. 1863, p. 325. Disabilities stopping running of statute: See •ante, sec. 328. § 353. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of ac- tion survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a per- son against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives after the expiration of that time, and within one year after tlie issuing of letters testamentary or of administration. Stats. 1850, p. 343. Substitution of parties: Sec. 385. Survival of actions: See post, sees. 1582-1584, aud sec. 385. "Action" includes a special proceeding of a civil nature: Sec. 303. § 354. AYhen a person is an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. § 355. If an action is commenced within the rime prescribed therefor, and a .iudgment therein for the plaintiff be reversed on appeal, the plain- 135 TIME OF COMMENCING ACTIONS. §§ 356-361 tiff, or if he die and the cause of action survive, his representatives, may commence a new action with- in one year after the reversal. This and the six following sections are drawn from statutes of 1850, page 343. § 356. When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or pro- hibition is not part of the time limited for the commencement of the action. § 357. No person can avail himself of a disabil- ity, unless it existed when his right of action ac- crued. Successive disabilities: See infra, sec. 358, and ante, sec. 328. § 358. When two or more disabilities coexist at the time the rigiit of action accrues, the limita- tion does not attach until they are removed. See supra, sec. 357. § 359. This title does not affect actions against directors or stoclvholders of a corporation, to re- cover a penalty or forfeiture imposed, or to en- force a liability created by law; but such actions must be brought Avithin three years after the .dis- covery by the aggrieved party of the facts upon which the penalty 'u- forfeiture attached, or the liability was created. § 360. No acknowledgment or promise is suffi- cient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby. § 361. When a cause of action has arisen in an- other State, or in a foreign country, and by the laws §§ 362, 363 TIME OF COMMENCING ACTIONS. 136 thereof an action thereon cannot there be main- tained against a person by reason of the lapse of time, an action thereon sliall not be maintained against him in this State, except in favor of one wlio has been a citizen of tliis State, and wlio has held the cause of action from the time it ac- crued. Stats. 1852, p. 1(31. § 362. This title does not extend to actions al- ready commenced, nor to cases where the time pre- scribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the pro- visions of this section. Repeal of limitations: See sees. 9, 18. § 363. The word '•action." as used in this title, is to be construed, Avhenever it is necessary so to _ do, as including a special proceeding of a civil na- 1 ture. 137 PARTIES TO CIVIL ACTIONS. § 367 TITLE III. OF THE PARTIES TO CIVIL ACTIONS. § 367. Action to be in name of party in interest. § 368. Assignment of thing in action not to prejudice de- fense. § 369. Executor, trustee, etc., may sue without joining the persons beneficially interested. § 370. When a married woman is a party— actions by and against. § 371. Wife may defend, when. § 372. Infant to appear by guardian. § 373. Guardian, how appointed. § 374. Unmaried female may sue, for her own seduction. § 375. Father, etc., may sue, for seduction of daughter, etc. § 37 J. Father, etc., may sue, for injury or death of child. § 377. When representatives may sue for death of one caused by the wrongful act of another. § 378. Who may be joined as plaintiffs. § 379. Who may be joined as defendants. § 380. Parties defendant in an action to determine conflict- ing claims to real property. Parties holding title under a common soifrce, when may join. Parties in interest, when to be joined. When one or more may sue or defend for the whole. Plaintiff may sue in one action th-e different parties to commercial paper. Tenants in common, etc., may sever in bringing or defending actions. Action, when not to abate by death, marriage, or other disability. Proceedings in such case. Another person may be substituted for the defend- ant. § 387. Intervention, when it takes place and how made. § 388. Associates may be sued by name of association. § 389. When other parties must be brought in. § 390. Actions against fire departments. J § 367. Every action must be prosecuted in the name of the real party iii interest, except as pro- vided in section three hundred and sixty-nine of this Code. [.Vmendment approved April 15, 1880; Amendments 1880, p. Go. In effect April 15, 1880.] Assiji-nees: Sec. 3G8. Partnerships, how may sue: See infra, sec. 388. §§ 368-370 PARTIES TO CIVIL ACTIONS. 138 Parties plaintiff, generally.— All persons inter- ested may be joined: Sec. 378, post. If any refuse, they may be made defendants: See. 382. § 368. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any setoff or other defense existing at the time of, or before, notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, befor*^ maturity. Assignment and survival of causes of action: See post, sees. 1582 et seq. See the subject of negotiable instruments and the rights of parties thereto discussed in the Civil Code, sees. 3122 et seq. Thing in action, defined: Civ. Code, sec. 953. S 369. An executor or administrator, or trustee of an express trust, or a person expressly author- ized by statute, may sue without joining with him the persons for whose benefit the action is prose- cuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. Executors and administrators, action by, jointly with heirs or devisees, for possession of real estate or quieting title: Sec. 1452. Actions by, alone: Sec. 1581-3. To set aside fraudulent deeds made by deceased: Sec. 1589. § 370. "When a married woman is a party, her luisband must be joined with her, except: 1. When the action concerns her separate prop- erty, or her right or claim to tlie homestead prop- erty, she may sue alone; 139 PARTIES TO CIVIL ACTIONS. §§ 371, 372 2. Wlieu the netiou is between herself and her husband, she may sue or be sued alone; 3. When she is living separate and apart from her husband by reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone. [Amendment approved March 24. 1874; Amendments 1873-4, p. 293. In effect July 1, 1874.] Contracts of married women generally: See Civ. Code, sec. 158. Sole traders: Sec. 1811 et seq. § 371. If a husband and wife be sued together the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. § 372. When an infant, or an insane or incom- petent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court, in which the action is pending in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prose- cuted, or by a judge thereof, expedient to repre- sent .the infant, insane or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him. [Amendment approved April 15, 1880; Amendments 1880, p. (38. In effect April 15, 1880.] Appointment of guardian ad litem: See next sec- tion. Guardian and ward, generally: See post, sees. 1747 et seq.; and Civ. Code, sees. 236 et seq. Insane or incompetent person: Civil Code, sees. 3(>, 38-41; guardian of, sees. 1763-176G. Minors and persons of unsound mind, their rights and liabilities: Civ. Code, sees. 33 et seq. §§ 373-373 PARTIES TO CIVIL ACTIONS. 140 § 373. AVheu a guardian ad litem is appointed by the court, he must be appointed as follows: 1. AVheu the infant is plaintiff, upon the appli- cation of the infant, if he be of the age of four- teen years, or if under that age, upon the applica- tion of a relative or friend of the infant; 2. When the infant is defendant, upon the ap- plication of the infant, if he be of the age of four- teen years, and apply within ten days after the service of the summons, or if under that age, or if he neglect so to apply, then upon the applica- tion of a relative or friend of the infant, or of any other party to the action: 3. When an insane or incompetent person is par- ty to an action or proceeding, upon the applica- tion of a relative or friend of, such insane or in- competent person, or of any other party to the action or proceeding. [Amendment approved April 15, 18S0; x^mendments 1880, p. 63. In effect April 15, 1880.] (k § 374. An unmarried female may prosecute, as plaintiff, in an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor. Exemplary damages: See Civ. Code, sec. 32t)4. § 375. A father, or in case of his death or de- sertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with or in the service of the plaintilf at the time of the seduction or afterward, and there be no loss of service. (Juardian ad litem: Sec. 372; appointment of, sec. 373. § 376. A fatlier, or in case of his death or de- sertion of his family, the mother, may maintain an 141 PARTIES TO CIVIL ACTIONS. §§ 377-379 action for the iujiiry or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrong- ful act or neglect of another. Such action may be maintained against the person causing the in- jury or death, or if such person be employed, by another person who is responsible for his con- duct, also against such other person. [Amend- ment approved March 24, 1874; Amendments 1873- 4, p. 294. In effect July 1, 1874.] Guardian and ward: Sees. 176S-177G, and Civil Code, sees. 230-257. § 377. When the death of a person, not being /a minor, is caused by the wrongful act or neglect of another, liis heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be em- ployed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding sec- tion, such damages may be given as under all the circumstances of the case may be just. [Amend- ment appi-oved March 24, 1874; Amendments 1873-4, p. 224. In effect July 1st, 1874.] § 378. All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in tliis title, Cotenants: Sec. 381. Special partners: Civil Code, sec. 2492. Other parties, bringing in: Sec. 389. Misjoinder and nonjoinder of plaintiffs: See sec. 430. § 379. Any person mny be made a defendant who has or claims an interest in the controversy § 380 PARTIES TO CIVIL ACTIONS. 142 adverse to the plaintiff, or who is a necessary par- ty to a complete determination or settlement of the question involved therein. And in an action to determine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the- landlord may be joined as a party defendant. Second sentence of section, added by Code. Joining landlord: Civ. Code, sec. 1949. Parties to foreclosure: Sec. 726. Corporation stockholders: Const. Cal., art. 12, sees. 3, 4; Civ. Code, sec. 322. Suits against the State: Const. Cal., art. 20; sec. G. Associates, suing by common name: Sec. 388. Qaieting title, suits: See sec. 738. Executors, unqualified: Sec. 1587. Fresh parties, bringing in: Sec. 389. Service on one defendant out of several, effect of: Sec. 414. State, suits against.— Suits may be brought against the State in such manner and in such courts as shall be directed by law: Const. Cal., art. 11, sec. 11. Actions against State, statutes relating to: See post, Appendix, pp. 8G8-74, Stat. § 380. In an action brought by a person out of possession of real property-, to determine an ad- verse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against Avhom the judg- ment has passed. [Amendment approved March 24, 1874; Amendments 1873-4, p. 295. In effect July 1, 1874.] As originally adopted, this section was compul- 143 PARTIES TO CIVIL ACTIONS. §§ 381, 382 sory, using the words "must be joined" in place of the words "may be joined," first introduced by the amendment of 1874. Actions to quiet title: See post, sec. 738. Writ of possession; See post, sec. 682. Fresh parties, bringing in: See sec. 389. Nonjoinder, misjoinder of parties: See sec. 430. § 381. Any two or more persons claiming any estate or interest in lands under a common source of title, whether holding as tenants in common, joint tenants, coparceners, or in severalty, may unite in an action against any person claiming an adverse estate or interest therein, for the purpose of determining such adverse claim, or of estab- lishing such common source of title, or of declar- ing the same to be held in trust, or of removing a cloud upon the same. [Amendment approved March 24, 1874; Amendments 1873-4, p. 295. In ef- fect July 1, 1874.] Cotenants may sever: See sec. 384, infra. Ejectment: See sec. 420, post, and note, and sec. 379, supra. Quieting title: See post, sec. 738. Joint tenants: See sees. 374, 384. § 382. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintitf cannot be ob- tained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general inter- est, of manj' persons, or when the parties are nu- merous, and it is impracticable to bring them all before the court, one or more may sue or defend for the beneUt of all. Joinder, misjoinder, nonjoinder: Executors, etc.. not qualified need not join: Sec. 1587. §§ 3S3-385 PARTIES TO CIVIL ACTIONS. 144 § 383. Tersons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sure- ties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff; and all or any of them join as plaintiffs in the same action, concerning or affecting tJie obligation or instrument upon which they are severally liable. [Approved Feb- ruary 23, 1897; Stats. 1897, c. 23.] See sees. 414, 578, 579. § 384. All persons holding as tenants in com- mon, joint tenants or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the en- forcement or protection of the rights of such party. Coclaimants. uniting as plaintiffs: Sec. 381. § 385. 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 the death or 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 in- terest. In case of any other transfer of interet^t, 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 sub- stituted in the action or proceeding. [Amendment approved March 21, 1874; Amendments 1873-4, p. 295. In effect July ], 1874.] If a party die, judgment against his representa- tive must be that he pay in due course of admin- istration: Sec. 1504. Necessity for claiming against estate of deceased: Sec. 1493. 145 PARTIES TO CIVIL ACTIONS. §§ 386, 387 Death after verdict or decision and before judg- ment: See post, sec. 669. Survival of actions: See post, sees. 1581 et seq. Bringing in new parties: See sec. 389. § 386. A defendant against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action malvcs against him, and witliout any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his deposit- ing in court the amount claimed on the contract, or delivering the property, or its value, to such per- son as the court may direct; and the court may, in its discretion, malve tlie order. And whenever con- flicting claims are or may be made upon a person for or relating to personal property, or the per- formance of an obligation, or any portion thereof, such person may bring an action against the con- flicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made, and the action of interpleader may be maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical,- but are adverse to and independ- ent of one another. [Amendment approved March 3, 1881; Stats. 1881, 19. In effect March 3, 1881.] § 387. Any person may, before the trial, inter- ^ vene in an action or proceeding, who has an inter- est in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention talies place when a third person is Code Civ. Proc— 13. §§ 388, 389 PARTIES TO CIVIL ACTIONS. 146 permitted to become a party to an action or pro- ceeding bet^Yeen other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in re- sisting the claims of the plaintiff", or by demand- ing anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the par- ties who have appeared, who may answer or de- mur to it as if it were an original complaint. [Amendment approved March 24, 1874; Amend- ments 1873-4, 296. In effect July 1, 1874.] Eminent domain— intervention in, sec. 1246. § 388. When two or more persons, associated in any business, transact such business under a common name, whether it comprise the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants, and had been sued upon their joint liability. Business associates— common name, sec. 414. Partners under fictitious name must file certifi- cate: See Civ. Code, sees. 2466 et seq. § 389. The court may determine any contro- versy betAveen parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete de- termination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in. and to 147 PARTIES TO CIVIL ACTIONS. § 390 that eiid may order amended and supplemental pleadings, or a eross-complaint to be filed, and summons thereon to be issued and served. And when, in an action for the recovery of real or per- sonal property, a person, not a party to the action, but having- an interest in the subject thereof, malvcs application to the court to be made a party, it may order him to be brought in, by the proper amendment. [Approved February 16, 1897; Stats. 1897, c. 12.] Joining landlord, sec. 379. Party, adding and amending name of, sec. 473. § 390. Causes of action upon contract, or for damages arising out of, or pertaining or incident J to, the official administration of the fire depart- ments created by acts of the Legislature of this State, shall be brought directly by and against the municipality by its corporate name wherein the damage was sustained. And the said boards of fire commissioners shall not be sued as such, ex- cept to compel or restrain the performance of acts proper to be compelled or restrained under and not within the discretion intended to be conferred by this act. [New section approved March 12, 1885; Stats. 1885, 92.] § 392 PLACE OF TRIAL. 148 TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. § 392. Certain actions to be tried where the subject or some part thereof is situated. § 393. Other actions, where the cause or some part thereof arose. § 394. Place of trial of actions against counties. § 'odo. Other actions according to the residence of the par- ties. § 396. Action may be tried in any county, unless the de- fendant demand a trial in the proper county. S 397. Place of trial may be changed in certain cases. § 398. When judge is disqualified, cause to be transferred. ^ 399. Papers to be transmitted. Costs, etc. Jurisdiction, etc. § 400. Proceedings after judgment in certain cases trans- ferred. § 392. Actions for the following causes must be tried in the county in which the subject of the ac- tion, 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', or of an es- tate or interest therein, or for the determination, in any form of such right or interest, and for in- juries to real property; 2. For partition of real property; 3. For the foreclosure of all liens and mortgages on real property. Where the real property is sit- uated 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 ac- tion, or applies pending the action, for an injunc- tion, the proper county for the trial shall be the county in which the defendant resides or a ma- 149 PLACE OF TRIAL. §§ 393. 394 jority of the defendants reside at the commence- ment of the action. [Amendment approved March 19, 18S9; Stats. 1SS9, 352. In effect March 19, 1889.] Riot, actions for damages caused by, must be tried in the county in whicli the property injured is situated: Polit. Code, sec. 4-153. § 393. Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: 1. For the recovery of a penalty or forfeiture imposed bj- statute; except that, when it is im- posed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and op- posite to the place where the offense was com- mitted; 2. Against a public officer, or person especially appointed to execute his duties, for an act done by him in virtue of his office, or n gainst a person who. by his command or in his aid, does anything touching the duties of such officer. § 394. An action against a county or city and county may be commenced and tried in such coun- ■^ ty or city and county unless such 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; provided further, that whenever an action is brought by a county or city against citizens of another county, or a corpo- ration doing business in the latter, the action must be, on the motion of the defendant, transferred for trial to a county other than the plaintiff, if the plaintiff be a county, and other than that in which I §§ 395-397 PLACE OF TRIAL. 150 the plaintiff is situated, if the plaintiff be a city. [Amendment approved March 10, 1891; Stats. 1891, 56. In effect immediately.] § 395. In all other cases, the action must tried in the county in which the defendants, or some of them reside at the commencement of the action; or, if none of the defendants reside in the State, or, if residing in this State, and the county in which they reside is unknown to the plaintiff", the same may be tried in any county which the plain- tiff may designate in his complaint; and if the de- fendant is about to depart from the State, such ac- tion may be tried in any county where either of the parties reside, or service is had; subject, how- ev.er, to the power of the court to change the place of trial as provided in this Code. Changing venue in criminal actions: See sees. 1033, 1034, Pen. Code. § 396. If the county in which the action is com- menced is not the proper county for the trial there- of, the action may, notwithstanding, be tried there- in, unless the defendant, at the time he appears and answers or demurs, files an affidavit of mer- its, and demands, in writing, that the trial be had in the proper coumy. § 397. The court may, on motion, change the place of trial in the following cases: 1. When the county designated in the com- plaint is not the proper county; 2. When there is reason to believe that an im- partial trial cannot be had therein; 3. When the convenience of witnesses, and the ends of justice would be promoted by the change; 4. When from any cause the judge is disquali- fied from acting. A])peal— from order as to change of venue, sec. 939, subd. 3. 151 PLACE OF TRIAL. §§ 398-400 Judge, when disqualified: See ante, sec. 170. Mandamus and prohibition.— Controlling action of court on motion to change the place of trial by- resort to these Avrits, see the note to the next sec- tion, and sections 1085, 1102, post. § 398. If an action or proceeding is commenced or pending in a court, and the judge or justice thereof is disqualified from acting as such, or if, from any cause, the court orders the place of trial changed, it must be transferred for trial to a court the parties may agree upon, by stipulation in writ- ing, or made in open court and entered in the minutes; or, if they do not so agree, then to the nearest or most accessible court, where the lilie objection or cause for making the order does not exist, as follows: 1. If in a Superior Court, to another Superior Court. 2. If in a Justice's Court, to another Justice's Court in the same county. [Approved March 27, 1897; Stats. 1897, c. 121. In effect immediately.] § 399. When an order is made transfemng an action or proceeding for trial, the Clerk of the Court, or Justice of the I*eace, must transmit the pleadings and papers therein to the Clerk or Jus- tice of the Court to which it is transferred. The costs and fees thereof, and of filing the papers anew, must be paid by the party at whose in- stance the order was made. The court to which an action or proceeding is transferred has and ex- ercises over the same the like jurisdiction as if it had been originally commenced therein. § 400. AVhen an action or proceeding affecting the title to or possession of real estate has been brought in or transferred to any court of a county other than the county in which the real estate, or p §§ 405, 400 MANNER OF COMMENCING. 152 some portion of it, is situated, the Clerli of such court must, after final judgment therein, certify under his seal of office, and transmit to the cor- responding court of the county in which the real estate affected by the action is situated, a copy of the judgment. The Clerk receiving such copy must file, docket, and record the judgment in the record of the court, briefiy designating it as a judgment transferred from court (naming the proper court). TITLE Y- OF THE MANNER OF COMMENCING CIVIL ACTIONS. § 405. Actions, how commenced. § 406. Complaint, how indorsed. When summons may be issued, and how waived. § 407. Summons, how issued, directed, and what to con- tain. § 408. Alias summons. § 409. Notice of the pendency of an action affecting the title to real property. § 410. Summons, how served and returned. § 411. Summons, how served. § 412. Publication when defendant is absent from the State, concealed, or a foreign corporation having no agent, etc. § 413. Manner of publication and appointment of attorney. § 414. Proceedings where there are several defendants, and part only are served. § 415. Proof of service, how made. § 416. When jurisdiction of action acquired. § 405. Civil actions in the courts of this State are commenced by filing a complaint. [Amend- ment approved March 24, 1874; Amendments 1873- 4, 29G. In effect July 1, 1874.] § 406. The Clerk must indorse on the com plaint the day, month, and year that it is filed: and at any time within one year thereafter, the plaintiff may have a summons issued; and if the action be brought against two or more defendants. 153 MANNER OF COMMENCING. § 407 who reside in different counties, may have a sum mons issued for each of such counties at the same time. But at any time witliin the year after the complaint is filed, the defendant may, in writing, or by appearin.u- and answering or demurring, waive the issuing of summons; or, if the action be ])rought upon a joint contract of two or moi"e defendants, and one of them has appeared within the year, the other or others, may be served or appear after the year, at any time before trial. [Amendment approved March 24, 1874; Amend- ments 1873-4, 296. In effect July 1, 1874.] Admission of service by defendant: Sec. 415. Alias summons: Sec. 408. Appearance: Sees. 416, 1014. , § 407. The summons must be directed to the defendant, signed by the Clerk, and issued under the seal of the court, and must contain: 1. The names of the parties to the action, the court in which it is brought, and the county in which the complaint is filed; 2. A direction that the defendant appear and answer the complaint within ten days, if the sum- mons is served within the county in which the action is brought; within thirty days, if served elsewhere; 3. A notice that, unless the defendant so ap- pears and answers, the plaintiff will tal^e judg- ment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint. [Approved March 2, 1897; Stats. 1897, .•..-,8.] Abbreviations, etc., sec. 186. Amen dments. sec, 478. Abbreviations and numerals: Sec. 186. mendment: Sec. 473. §§ 408, 109 MANNER OF COMMENCING. 154 Clerk's duties, generally: Sec. 2G2. Spanish language, proceedings in: Sees. 185. 1056. Style of process.— The style of all process shall be: "The people of the State of California," and all prosecutions shall be conducted in their name and by their authority: Const. Cal., art. 6, sec. 18. The sovereignty of the State resides in the people thereof, and all writs and processes must issue in their name: Polit. Code, sec. 30. § 408. If the summons is returned without be- ing served on any or all of the defendants, or if it has been lost, the Clerk, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original; provided, that no such alias summons shall be issued after the expiration of one year from the date of the filing of the com- > plaint. [Amendment approved March 8, 1887; Stats. 1887, 50. In effect March 8, 1887.] § 409. In an action affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and the defend- ant, at the time of filing his answer, when affirma- tive relief is claimed in such answer, or at any time afterward, may record in the office of the Re- corder of the county in which the property is situ- ated a notice of the pendency of the action, con- taining the names of the parties and the object of the action or defense, and a description of the property in that county affected thereby. From the time of filing such notice for record only shall a purchaser or incumbrancer of the property af- fected thereby be deemed to have constructive no- tice of the pendency of the action, and only of its pendency against parties designated by their real names. [Amendment approved March 24, 1874; Amendments 1873-4, 297. In effect July 1, 1874.] r..') MANNER OF COMMENCING. §§ 410, 411 f Partition— recording notice of suit, sec. 755. Person in possession of real property, action airainst, cannot be prejudiced by any alienation made by him: Sec. 747. § 410. The summons may be served by the |_Sheriff of the county where the defendant is found I or by any other person over the age of eighteen, I not a party to the action. A copy of the complaint must be served with the summons, upon each of the defendants. When the summons is served by the Sheriff, it must be returned, with his certifi- cate of its service, and of the service of any copy ' of the complaint, where such copy is served, to \ the office of the Clerk from which it issued. When it is served by any other person, it must be re- turned to the same place with an affidavit of such person of its service, and of the service of a copy of the complaint, where such copy is served. [Amendment approved March 23, 1893; Stats. 1893, 207.] Costs, where served by person other than Sher- iff: See post. Appendix, 790. § 411. The summons must be served by deliver- ing a copy thereof, as follows: 1. If the suit is against a corporation formed under the laws of this State, to the president or other head of the corporation, secretary, cashier, or managing agent thereof; 2. If the suit is against a foreign corporation, or a nonresident joint stocli company, or associa- tion, doing business and having a managing or business agent, cashier, or secretary within this State, to such agent, cashier, or secretary; 3. If against a minor under the age of fourteen years, residing within this State, to such minor, personally, and also to his father, mother, or guar- § 412 MANNER OF COMMENCING. 15ft dian; or, if there be none within this State, then to any person having the care or control of such minor, or Avith whom he resides, or in whose ser- vice he is employed; 4. If against a person residing within this State, who has been judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such person and also to his guardian; 5. If against a county, city or town, to the president of the Board of Supervisors, president of the Council or trustees, or other head of the legis- lative department thereof; 6. In all other cases, to the defendant personal- ly. [Amendment approved March 24, 1874; Amend- ments 1873-4, 298. In effect July 1, 1874.] Association, service may be on one of the mem- bers of: Sec. 388. Return of summons: Sees. 411, 415. Spanish language, proceedings in: Sees. 185, 1056. Telegraph, service by: See. 1017. § 412. Where the person on whom service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of summons, or is a foreign cor- poration having no managing or business agent, cashier, or secretary within the State, and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the ac- tion; or when it appears by such affidavit, or by the complaint on file herein, that it is an action 157 MANNER OF COMMENCING. S 413 which relates to or the subject of which is real or personal property in this State, in which such per- son defendant or foreign corporation defendant has or claims a lien or interest, actual or contin- gent, therein, or in which the relief demanded con- sists wholly or in part in excluding such person or foreign corporation from any interest therein, such court or judge may make an order that the service be made by the publication of the sum- mons. [Amendment approverd March 23. 1893; Stats. 1893, 285. In effect immediately.] i § 413. The order must direct the publication to Ube made in a newspaper, to be designated, as most f likely to give notice to the person to be served, I, and for such length of time as may be deemed f reasonable, at least once a week; but publication i* against a defendant residing out of the State, or f absent therefrom, must not be less than two I' months. In case of publication, where the resi- j' dence of a nonresident or absent defendant is . known, the court or judge must direct a. copy of ; the summons and complaint to be forthwith de- ! iK)sited in the postotiice. directed to the person to J be served, at his place of residence. When publi- ; cation is ordered, personal service of a copy of the ! summons and complaint out of the State is equiv- ; alent to publication and deposit in the postotiice, { and in either case the service of the summons is ; complete at the expiration of the time prescribed I by the order for publication. [Amendment ap- i proved :March 24. 1874; Amendments ] 873-4, 299. I; In effect .Tulv 1, 1874.] : Liens, mechanics, etc., publication under: S«m- I 1191. I Publication, proof of: Sees. 2010, 2011. j .Judgment by default: Sec. 585, subd. 3. j Code Civ. Proc— 14. i 1 §§ 414-413 MANNER OP COMMENCING. 158 § 414. When the action is against two or more defendants, jointly or severally liable on a con- tract, and the summons is served on one or more but not on all of them, the plaintiff may proceed against the defendants served in the same man- ner as if they were the only defendants. Joining persons severally liable upon instru- ments: fcSec. 383. Judgment against some defendants, proceed- ings continuing against the others: Sec. 579. Joint debtors, proceedings against, after judg- ment against some: Sec. 989. § 415. Proof of the service of summons and complaint must be as follows: 1. If served by the Sheriff, his certificate there- of; 2. If by any other person, his affidavit thereof; or. 3. In case of publication, the affidavit of the printer, or his foreman or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the postofiice, if the same has been deposited; or, 4. The written admission of the defendant in case of service otherwise than by publication; the certificate or affidavit must state the time and place of service. Time and place: See sees. 416, post. § 416. From the time of the service of the sum- mons and of a copy of the complaint in a civil ac- tion, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the pap- ties, and to have control of all the subsequent proceedings. The voluntary appearance of a de- 159 THE PLEADINGS IN GENERAL. § 420 fendant is equivalent to personal service of the summons and copy of the complaint upon him. [Amendment approved March 24, 1874; Amend- ments 1873-4, 299. In effect July 1, 1874.] An act concerning- service of summons upon ab- sent defendants by publication, approved March 15, 1872, is repealed. [In effect March 20, 1874.] Admission of service: Sec. 415. Appearance: Sec. 1014. Waiver of summons: Sec, 406. 7u^4r{jud. '""■^- TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. Chapter I. The pleadings in general. II. The complaint. III. Demurrer to the complaint. IV. The answer. V. Demurrer to answer. VI. Verification of pleadings. VII. General rules of pleading. VIII. Variance — Mistalies in pleadings and amendments. CHAPTER I. THE PLEADINGS IN GENERAL. § 420. Definition of pleadings. § 421. This Code prescribes the form and rules of plead- ings. § 422. "What pleadings are allowed. § 420. The pleadings are the formal allegations by the parties of their respective claims and de- fenses, for the judgment of the court. §§ 421, 426 THE COMPLAINT. 160 § 421. The forms of pleading iu civil actious, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this Code. One form of actions: Sec. 307. § 422. The only pleadings allowed on the part of the plaintiff are: 1. The complaint; 2. The demurrer to the answer. And on the part of the defendant: 1. The demurrer to the complaint; 2. The answer. CHAPTER II. THE COMPLAINT. 5 425. Complaint, first pleading. § 426. Complaint, what to contain. § 427. What causes of action may be joined. § 425. The first pleading on the part of the plaintiff is the complaint. S 426. The complaint must contain: 1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cauSe of action, in ordinary and concise language; .3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. Title, papers defectively entitled: Sec. 1046. Venue: Sees. 392-400. Parties: Sees. 367-389. Association may be sued under common name: Sec. 388. 161 THE COMPLAINT. ?; 426 Fictitious uaiiios for defendants: See. 474. Abbreviations and nnmerals: Sec. ISO. Construction of pleadings to be liberal: Sec. 432. Errors and defects to be disregarded: Sec. 475. Material allegations not controverted taken a» true: Sec. 462. Proceedings in Spanish language: Sees. 185, 1056. Service of complaint: Sec. 410. Several causes of action, uniting: Sec. 427. Pleading, in particular cases— Account. Items of, need not be set out in complaint: Sec. 454; Suit for: See sees. 1498-8, post. Amendment of pleadings: Sees. 472, 473; of com- plaint: Sec. 432. Claim and delivery: See sec. .509, post. Cloud on title, action to remove: Sees. 738, 1050. As to effect of setting out written instrument, if its genuineness is not denied on oath: Sees. 447- 449." Conditions precedent, mode of averring perform- ance of: Sec. 457. Variance between name of corporation sued and corporation making contract: Sec. 471. Death, suggestion of: Sec. 385. As to the necessity of demanding a deed: vSee sec. 457. Detainer, unlawful: Sees. 1159-1179. Complaint in: Sec. 1166. Detinue: See "Replevin," infra. Disability, suggestion of: Sec. 385. Divorce: See Civ. Code, sees. 90 et seq. Nuisance: Sec. 731, post. Parent, action for the injury or death of minor child: Sees. 376, 377. Partition: Sees. 752, 753. Partnership.— Persons doing business as part- uers contrary to tlie provisions of the Civil Code, § 420 THE COMPLAINT. 162 division 3, part 4, title 10, chapter 2, article 7— i. e., Civil Code, sections 246G-2471— cannot maintain any action upon or on account of any contracts made or transactions had in their partnership name, in any courts of this State, until they have first filed the certificate, and made the publication therein required: Civil Code, sec. 2468. "Partnership": See Civil Code, sees. 2395 et seq., for the. general provisions on the subject. Quiet title to real estate, action to: Sec. 738. To money or obligation: Sec. 1050. Replevin: See post, sec 509. Seduction, unmarried female may prosecute ac- tion for her own: Sec. 374. Father, or in certain cases mother, may prosecute: Sec. 375. Guardian may prosecute: Sec. 375. Misjoinder, nonjoinder, etc.: Sec. 430. Ejectment, order for party to make survey of prop- erty in dispute: Sees. 742, 743. Executor: See "Administrator," "Ejectment," supra. Forcible entry, etc.: Sees. 1159-1179. Gold coin, allegations to obtain judgment in: Sec. 667. Goods sold, etc.— Liquors.— By chapter 314, ap- proved March 20, 1874, Stats. 1874, p. 509, the pur- chase of or sale and delivery of any spirituous or malt liquors, wine, or cider, by retail or by the drink, is declared to be an invalid consideration for any promise to pay, or assumpsit of account therefor, when the amount of such account or de- mand exceeds five dollars; and no court in any action at law is to render judgment for a greater amount than five dollars for the sale at retail, or by the drinlv, of any spirituous or malt liquors, wine, or cider, together with costs; but nothing in that act is to be construed to affect in any manner debts contracted prior to its passage. 163 THE COMPLAINT. § 426 Guardian, action by, for injury or deatli of ward: Sees. 376, 377. Waste by: Sec. 732. Heirs or representatives, action by, for deatli of a person: Sec. 377. Husband and wife: Sees. 370, 371. Intervention: Sec. 387. Limitations, statute of: Sees. 312-363. How pleaded: See. 458. Slieriff : Action may be maintained against sher- iff for any money come to bis hands, with twenty- five per cent damages, and ten per cent per month interest, if he does not pay over same on demand to person entitled thereto: Folit. Code, sec. 4181; also for two hundred dollars and all damages sus- tained by party aggrieved if Sheriff do not return notice or process with the necessary indorsements without delay: Id., sec. 4179; also for neglecting or refusing to sell upon execution: Id., sec. 4180. Action against Sheriff for escape or rescue: Id., sees. 4182, 4183. Slander.— Extrinsic facts need not be stated: Sec. 460. Statute, private, how pleaded: See sec. 459. Stock.— Action to recover stock sold for delin- quent assessment: Sec. 341, and note. Supplemental complaint: Sec. 464. Surety, action by, to compel principal to satisfy debt: Sec. 1050. Tenants, waste by: Sec. 732. Tenants in common, waste by: Sec. 237. Timber, cutting down or injuring: See sec. 733. Trusts, enforcement of: See Civ. Code, sees. 2215 et seq. Usage of trade: See post, sec. 1870, subd. 12; and Civ. Code, sec. 1644. Variance: See post, sees. 469-471. Vendor's lien: See Civ. Code, sec. 3046. Verification of pleadings: Sec. 446. § 426 TUB COMPLAINT. 164 Vessels, steamers, and boats, actions against: Sec. 813. Waste, reference to: Sec. 732. Forfeiture.— Whenever by the terms of an obli- gation a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his fail- ure to comply with its provisions, he may be re- lieved therefrom upon making full compensation to the other party, except in case of a grossly neg- ligent, willful, or fraudulent breach of duty: Civ. Code, sec. 3275. Relief of a tenant from forfeit- ure of a lease: Sec. 1179. Liquidated damages.— Every contract by which the amount of damage to be paid or other com- pensation to be made for a breach of an obliga- tion is determined in anticipation thereof is to that extent void, except as expressly provided in the next section: Civ. Code, sec. 1670. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of dam- age sustained by a breach thereof, when from the nature of the case it would be impracticable or ex- tremely difhcult to fix the actual damage: Civ. Code, sec. 1671. Damages, persons sulfering detriment may re- cover reasonable.— Every person who suffers detri- ment from the unlawful act or omission of another may recover from the person in fault a compensa- tion therefor in monej', whicli is called damages: Civ. Code, sec. 3281. Damages must in all cases be reasonable; and where an obligation of any Ivind appears to create a right to unconscionable and grossly oppressive damages, contrary to substan- tial justice, no more than reasonable damages can be recovered: Id., sec. 3359. Damages on revoking submission: Sec. 1290. — Damages are exclusive of exemplary damages and interest, except where those are expressly men- 165 THE COMPLAINT. >. 426 tioued: Civ. Code, sec. 3357. No person can re- cover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the articles on exemplary damages and penal damages, and in the Civil Code, sees. 3319, 3339, and 3340: Civ. Code, sec. 335.S. Nominal damages.— When a breach of duty has caused no appreciable detriment to the party af- fected, he may yet recover nominal damages: Civ. Code, sec. 3360. Remoteness.— As to remoteness, Civ. Code, sec. 3301, infra. Detriment, definition of.— Detriment is a loss or harm suffered in person or property: Civ. Code, sec. 3282. Prospective damages.— Damages may be award- ed in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to re- sult in the future: Civ. Code, sec. 3283. Peculiar value, property of.— Where certain prop- erty has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer: Civ. Code, sec. 3355. Writing, value of.— For the purpose of estimat- ing damages the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner: Civ. Code, sec. 3356. Interest on legacy, see Civil Code, section 1369, As to what is the legal rate: Civ. Code, sec. 1917. Ill an action for the breach of an obligation not arising from contract, and in every case of oppres- sion, fraud, or malice, interest may be given, in the discretion of the jury: Civ. Code. sec. 328S. i 426 THE COMPLAINT. 16S Any legal rate of interest stipulated by a contract remains cliargeable after a breach thereof, as be- fore, until the contract is superseded by a verdict or other new obligation: Civ. Code, sec. 3289. Ac- cepting payment of the whole principal as such waives all claim to interest: Civ. Code, sec. 3290. Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise stipulated at the time, in writing: Civ. Code, sec. 1914; see also Id. 1917. Interest is the compensa- tion allowed by law, or fixed by the parties, for the use, or forbearance, or detention of money: Civ. Code, sec. 1915. When a rate of interest is prescribed by a law or contract, without specify- ing the period of time by which such rate is to be calculated, it is to be deemed an annual rate: Civ. Code, sec. 191G. Interest, agreement for: See Civ. Code, sec. 1917. Damages on deposit, measure of.— A depositor must indemnify the depositary: 1. For all dam- age caused to him by the defects or vices of the thing deposited; and, 2. For all expenses neces- sarily incurred by him about the thing, other than such as are involved in the nature of the under- taking: Civ. Code, sec. 1833. Insurance: See Civ. Code, sees. 25, 27. Deatli, damages for occasioning: See sec. 377, ante. Current money, borrower to pay in.— A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan be- comes due, whether such money is worth more or less than the actual money lent: Civ. Code, sec. 1913. See sec. 667, post. Foreign bills of exchange, damages or dishonor of.— For the dishonor of foreign bills of exchange, 167 THE COMPLAINT. § 426 the damages are prescribed by sections 3235, 3237, and 3238 of the Civil Code. Real estate, covenants, damages for breach of.— The detriment caused by the breach of a cove- nant of "seisin," of "right to convey," of "war- ranty," or of "quiet enjoyment," in a grant of an estate in real property, is deemed to be: 1. The price paid to the grantor; or, if the breach is par- tial only, such proportion of the price as the value of tlie property affected by the breach bore at the time of the grant to the value of the whole prop- erty; 2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding five years; 3. Any expenses prop- erly incurred by the covenantee in defending his possession: Civ. Code, sec. 3304. Ileal estate, damages for not conveying.— The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid and expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land: Civ. Code, sec. 3306. lieal estate, damages for not accepting.— The detriment caused by the breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him: Civ. Code, sec. 3307. Goods, damages on breach of warranty of title to.— The detriment caused by the breach of a war- ranty of the title of personal property sold is deem- ed to be the value thereof to the buyer when he is 5 426 THE COMPLAINT. 168 deprived of its possofssiou, together with any costs which he has become liable to pay in an action brought for the property by the true owner: Civ. Code, sec. 3312. Goods, damages on breach of warranty of qual- ity of.— The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been com- plied with, over its actual value at that time: Civ. Code, sec. 3313. The detriment caused by the breach of a war- ranty of the fitness of an article of personal prop- erty for a particular purpose is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faitli to use it for such purpose: Civ. Code, sec. 3314. Carrier, damages for omitting to carry.— The detriment caused bj" the breach of a carrier's obli- gation to accept freight, messages, or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage and the amount A\hich it would be necessary to pay for the same service when it ought to be per- formed: Civ. Code, sec. 3315. Carrier, damages for not delivering freight: Civ. Code, sec. 3316. Carrier, damages for delay: Civ. Code, sec. 3317. Agent, damages for breach of warranty of au- thority of: See Civ. Code, sec. 8318. ]\Iarriage. damages for breach of promise of.— The damages for the breach of a promise of mar- riage rest in the sound discretion of the jury: Civ. Code, sec. 3319. Deposit.— The liability of a depositary for negli- gence cannot exceed the amount which ho is in- 169 THE COMPLAINT. § 426 formed by the depositor, or has reason to suppose, the thing deposited to be worth: Civ. Code, sec. 1840. Libel or slander, damages on.— In actions for li- bel or slander defendant may justify and allege mitigating circumstances, and whether he prove justification or not, he may give in evidence the mitigating circumstances: Sec. 461. Mesne profits.— The detriment caused by the wrongful occupation of real property in cases not embraced in sections 3335, .3344, and 3345 of this Code (Civil Code), or section 1174 of the Code of Civil Procedure, is deemed to be the value of the use of the property for the time of such occui)a- tion, not exceeding five years next preceding the commencement of the action or proceeding to en- force the right to damages, and the costs, if any, of recovering the possession: Civ. Code, sec. 3334. Ejectment, damages on: Sec. 427. Where plain- tiffs right terminates during pendency of action, plaintiff may recover damages for withholding the property: Sec. 740. Defendant may set oft' value of improvements where made under color of title: Sec. 741. Holding over real propertj^ damages for.— For willfully holding over real property, by a person wlio entered upon the same as guardian or trus- tee for an infant, or by right of an estate termin- able Avith any life or lives, after the termination of tlie trust or particular estate, without the consent of the party immediately entitled after such termi- nation, the measure of the damages is the value of tlio profits received during such holding over: Civ. (^od^, sec. 333.5. Conversion of goods, damages for. — Tlie detri- ment caused by the wrongful conversion of per- sonal property is presumed to be: 1. The value of Code Civ. Proc— lo. § 426 THE COMPLAINT. 170 the property at the time of the conversion, with the interest from that time; and 2. A fair com- pensation for the time and money properly ex- pended in pursuit of the property: Civ. Code, sec. 3330. Seduction.— The damages for seduction rest in the sound discretion of the jury: Civ. Code, sec. 3339. An unmarried woman may prosecute as plaintiff an action for her own seduction, and may recover pecuniary or exemplary damages: Sec. 374. Animals, injuries to: See Civ. Code, sec. 3340. Penal damages.— Waste by guardians, tenants for life or years, joint tenants, or tenants in com- mon: Sec. 731, post. Wasting or embezzling es- tate of deceased: Sees. 14.58-14()0. Executor fraud- ulently selling real property: Sec. 1572. Holding over. — Damages for forcible entry and detainer: See sec. 1174. Forcible or unlawful entry uijon or detention of any building or cul- tivated real property: See. 735; see also as to forcible entry, or forcible or unlawful detainer, sec. 1174. If any tenant give notice of his in- tention to quit the premises, and does not de- liver up the possession at the time specified in the notice, he must pay to the landlord treble rent during the time he continues in possession after such notice: Civ. Code, sec. 3344. If any tenant, or any person in collusion with the tenant, holds over any lands or tenements after demand made and one month's notice, in writing given, requir- ing the possession thereof, such person holding over must pay to the landlord treble rent during the time he continues in possession after such no- tice: Civ. Code, sec. 3345. For wrongful injuries to timber, trees, or un- derwood upon the land of another, or removal thereof, the measure of damages is three times 171 THE COMPLAINT. § 427 such a sum as would compensate for the actual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was talien by the authority of highway officers for the purposes of a highway; in which ca,se the damages are a sum equal to the actual detriment: Civ. Code, sec. 3346. For cutting down or carrying off wood, underwood, trees, or timber, or girdling or otherwise injuring trees or timber,, on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds, or on the commons or public grounds of any citj^ or town, or on the street or highway in front thereof: Sec. 733. The wording of section 733 more resembles the woitiing of sections 735 and 1174, the sections as to forcible entry, etc., than that as to waste, section 732. Dueling. — If any person slays or permanently disables another person in a duel in this State, the slayer must provide for the maintenance of the widow or wife of the person slain or permanently disabled, and for the minor children, in such man- ner and at such cost, either by aggregate compen- sation in damages to each, or by a monthly, quar- terly, or annual allowance, to be determined by the court: Civ. Code, sec. 3347. If any person slays or permanently disables another person in a duel in this State, the slayer is liable for and must pay all debts of the person slain or perma- nently disabled: Id., sec. 3348. Specific and preventive relief.— Specific or pre- ventive relief may be given in cases specified in the Civil Code, sections 33G6-3423 and in no others. § 427. The plaintiff may unite several causes of action in the same complaint, where they all arise out of: § 427 THE COMPLAINT. 172 1. Contracts, express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a con- tract or by operation of laAv; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property. The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person. Replevin: See post, sec. oOJ>. 173 DEMl^RER TO COMPLAINT. § 430 CHAPTER III. DEMURRER TO THE COMPLAINT. § 430. When defendant may demur. } 431. Demurrer must specify, etc. May be taken to part. May answer and demur at same time. § 432. What proceedings are to be had when complaint amended. § 433. Objection not appearing on complaint, may be taken by answer. § 434. Objections, when deemed waived. § 430. The defeiidant maj^ demur to the com- plaint within the time required in the summons to answer, when it appears upon the face thereof, either : 1. That the court has no jurisdiction of the per- son of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between tlie same parties for the same cause; or, 4. That there is a defect or misjoinder of par- ties plaintiff or defendant; or, 5. That several causes of action have been im- properly united; or, G. That the complaint does not state facts suffi- cient to constitute a cause of action; or, 7. That the complaint is ambiguous, unintelligi- l)le, or uncertain. General and special demurrer: See sec. 431, in- fra. Demurring and ansAvering at same time: See sees. 431, 441. Serving demurrer: See sec. 405. Judgment on demurrer: Sec. G3G. Demurrer is an appearance: See sec. 1014. ]»<>st. §§ 431-434 DEMURRER TO COMPLAINT. 174 Waiving objections by not demurring: Sec. 434. Joinder of plaintiffs: Sees. 378, 381. Tenants m common, etc.: Sec. 381. Necessary party refusing to join as plaintiff may be made a defendant: Sec. 382. General and special demurrer: See sec. 431, in- fra. § 431. The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. It may be taken to the whole com- plaint or to any of the causes of action stated therein, or the defendant may demur and answer at the same time. § 432. If the complaint is amended, a copy of the amendments must be filed, or the court may, in its discretion, require the complaint, as amend- ed, to be filed, and a copy of the amendments, or amended complaint, must be served upon the de- fendants affected thereby. The defendant must answer the amendment or the complaint, as amended, within ten days after service thereof, or such other time as the court may direct, and judg- ment by default may be entered upon failure to answer, as in other cases. [Amendment approved March 9, 1880; Amendments 1880, 2. In eft^ect March 9, 1880.] Amendment— generally, sees. 472, 473. § 433. When any of the matters enumerated in «ection430 do not appear upon the face of the com- plaint, the objection may be taken by answer. § 434. If no objection be taken, either by de- murrer or answer, the defendant must be deemed to have waived the same, excepting only the ob- jection to the jurisdiction of the court, and the ob- jection that the complaint does not state facts sufficient to constitute a cause of action. 175 THE ANSWER. § 437 CHAPTER IV. THE ANSWER. § 437. Answer, what to contain. § 438. When counterclaim may be set up. § 439. When defendant omits to set up counterclaim. § 440. Counterclaim not barred by death or assignment. § 441. Answer may contain several grounds of defense. Defendant may answer part and demur to part of complaint. § 442. Cross-complaint. § 437. The answer of the defendant shall con- tain: 1. A general or specific denial of the material allegations of the complaint controverted by the defendant; 2. A statement of any new matter constituting a defense or counter-claim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or ac- cording to the information and belief of the de- fendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a gen- eral denial is sutticient, but only puts in issue the material allegations of the complaint. [Amend- ment approved March 24, 1874; Amendments 1873- 4, 300. In effect July 1, 1874.] Pleas in abatement: See ante, sec. 430. Answer in particular cases: See sec. 426. Account demanding items of: Sec. 454. Amendment: Sees. 472, 473. Appearance, answering is: Sec. 1014. Assignment of chose in action: Sec. 368. § 438 THE ANSWER. 176 Claim aud delivery.— Defendant may claim a re- tm-n of the property: Sec. 067. Conditions precedent in contract, pleading per- formance of: Sec. 457. Counter-claim: Sees. 438-441. Cross-complaint: Sec. 442. Death of party: Sec. 385. Disability of party: Sec. 385. Disclaimer: See sec. 739, post. Ejectment.— Defendant may set off against dam- ages value of improvements made under color of title: Sec. 741, Errors and defects to be disregarded: Sec. 475. Estoppel: Sec. 1908. Gold coin, etc.. allegations as to money being payable in, should be denied: Sec. 667. Husband and wife: Sees. 370, 371. Judgment or other determination of a court, oflSi- cer, or board, pleading: Sees. 456, 1908. Libel. — Defendant may justify and allege miti- gating circumstances: Sec. 461. Mortgage: Sec. 726. Quiet title, action to.— Defendant maj' disclaim: Sec. 739. Slander: Sec. 461. Statute, private.— Pleading: Sec. 459. Striking out: Sec. 453. Supplemental ansAver: Sec. 464. Time to answer.— Extension of: Sec. 1054. Writing.— Setting forth an ansAA'er, effect of: Sees. 448. 449. f 438. The counler-claim mentioned in the last section must be one existing in favor of a defend- ant and against a plaintiff between whom a sev- eral judgment might be had in the action, and arising out of one of the following causes of ac- tion: 177 THE ANSWER. §§ 439-441 1. A cause of action arisiug- out of the trausac- tion set forth in the complaint as the foundation of the plaintiff's claim, or connected with the sub- ject of the action: 2. In an action arising upon contract: any other ! cause of action arising also upon contract, and ex- isting at the commencement of the action. Dismissing action where counter-claim: Sec. 581. \ Omission to set up counter-claim prevents future action thereon: Sec. 439. Compensated, cross-demands deemed: Sec. 441. p § 439. If the defendant omit to set up a coun- [/ ter-claim in the cases mentioned in the first subdi- vision of the last section, neither he nor his as- signee can afterward maintain an action against the plaintiff therefor. § 440. When cross-deluands have existed be- tween persons under such circumstances that, if one had brought an action against the other, a counter-claim could have been set up, the two de- mands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other. [Amendment approved ^Nlarch 24, 1874: Amendments 18T:]-4, 300. In effect July 1, 1874.] § 441. The defendant may set forth by answer as many defenses and counter-claims as he may have. They must be separately stated, and the several defenses must refer to the causes of ac- tion which they are intended to answer, in a man- ner by which they may be intelligibly distin- guished. The defendant may also answer one or more of the several causes of action stated in the complaint, and demur to the residue. §§ 442, 444 DEMURRER TO ANSWER. ITS § 442. Whenever the defendant seeks affirma- tive relief against any party, relating to or de- pending upon the contract or transaction upon vrhich the action is brought, or affecting the prop- erty to which the action relates, he may, in addi- tion to his answer, file at the same time, or by permission of the court subsequently, a cross-com- plaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original com- plaint. [New section approved March 24, 1874; Amendments 1873-4, 301. In effect July 1, 1874.] Answer to cross-complaint: See sees. 437-441. Original complaint: Sees. 426, 427. Dismissing action, where counter-claim: Sec. 581. CHAPTER V. DEMURRER TO ANSW^ER. § 443. When plaintiff may demur to answer. § 444. Grounds of demurrer. § 443. The plaintiff may, within the same length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant, or to one or more of the several defenses or counter-claims set up in the answer. [Amendment approved March 24, 1874; Amendments 1873-4, 301. In effect July 1, 1874.] Demurrer to complaint: Sec. 430. Service of demuiTer: Sec. 46-5. Time to demur, extending: Sec. 1054. Time to answer when demurrer overruled begins to run from service of notice of decision: Sec. 476, § 444. The demurrer may be talcen upon one or more of the following grounds: 179 VERIFICATION OF PLEADINGS. § 446 1. That several causes of counter-claim liave beeu improperly joined; 2. That the answer does not state facts suffi- cient to constitute a defense or counter-claim; 3. That the answer is ambiguous, unintelligible, or uncertain. Grounds of demurrer: See sec. 430. CHAPTER VI. VERIFICATION OF PLEADINGS. § 446. Verification of pleadings. § 447. Copy of written instrument contained in complaint admitted, unless answer is verified. § 448. When defense is founded on written instrument set out in answer, its execution admitted, unless de- nied by plaintiff, under oath. § 449. Exceptions' to rules prescribed by two preceding sec- tions. § 446. Every pleading must be subscribed by the party or his attorney; and when the complaint is verified, or when the State, or any officer of the State, in his official capacity, is plaintiff, the an- swer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or, unless an officer of the State, in his official capacity, is defendant. In all cases of a verification of a pleading, the affidavit of the party must state that the same is true of his OAvn Ivnowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true; and where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county, where the attorney resides, or from some cause unable to verify it. or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is §§ 417-449 VERIFICATION OF PLEADINGS. 180 verified by the attorney, or any other person ex- cept one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. AVhen a corporation is a party, the verification may be made by any officer thereof. Attorneys' power to bind client: Sec. 283. Yeritying accusation for disbarring attorney: See sec. 291, ante. § 447. When an action is brought upon a writ- ten instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instru- ment are deemed admitted, unless the answer denying the same be verified. § 448. When the defense to an action is founded on a written instrument, and a copy thereof is contained in the ansAver, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted unless the plain- tifl! file with the. clerk, within ten days after re- ceiving a copy of the answer, an affidavit denj'ing the same, and serve a copy thereof on the defend- ant. [Amendment approved March 24, 1874; Amendments 1873-4, 301. In effect July 1, 1874.] § 449. But the execution of the instrument mentioned in the two preceding sections is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy, upon the adverse party or his attorney, and filed with the papers in the case. [Amend- ment approved April 16. 1880: Amendments 1880. 111. In effect April in. 1880.1 Inspection of writrngs, order for: Sec. 1000. 181 GENERAL RULES OF PLEADING §§ iy2-[r,4 CHAPTER VII. GENERAL RULES OF PLEADING. § 452. Pleadings to be liberally construed. § 453. Sham and irrelevant answers, etc., may be stricken out. § 454. How to state an account in pleadings. § 4.55. Description of real property in a pleading. § 456. Judgments, how pleaded. § 457. Conditions precedent, how to be pleaded. § 458. Statute of Limitations, how pleaded. § 459. Private statutes, how pleaded. § 460. Libel and slander, how stated in complaint. Not necessary to allege or prove special damages. § 461. Answer in such cases. § 462. Allegation not denied, when to be deemed true. When to be deemed controverted. § 463. A material allegation defined. § 464. Supplemental complaint and answer. § 465. Pleadings subsequent to complaint must be filed and served. § 452. In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, vrith a view to sub- stantial justice between the parties. § 453. Sham and irrelevant answers, and irrele- vant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose. § 454. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general or is defective in any particular. [Amendment approved March 9, 18S0; Amend- ments 1880, 2. In efieect March 9, 1880.] Code Civ. Proc— 16. §§ 455-459 GENERAL RULES OP PLEADING. 182 § 455. In an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer upon execution to identify it. § 456. In pleading a judgment, or other deter- mination of a court, officer, or board, it is not necessary to state the facts conferring jurisdic- tion, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on tlie trial the facts conferring jurisdiction. Judgment as an estoppel: See post, sec. 1908. § 457. In pleading the performance of condi- tions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly per- formed all the conditions on his part, and if such allegations be controverted, the party pleading must establish, on the trial, the facts showing such performance. Conditions precedent, interpretation of: See Civ. Code, sees. 1437 et seq. § 458. In pleading the Statute of Limitations; it is not necessary to state the facts showing the de- fense, but it may be stated generally that the cause of action is barred by the provisions of sec- tion (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allega- tion be controverted, the party pleading must es- tablish, on the trial, the facts showing that the cause of action is so barred. § 459, In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage. 1S3 GENERAL RULES OF PLEADING. §§ 4G0-464 § 460. In an action for libel or slander, it is not necessary. to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such al- legation be controverted, the plaintiff must estab- lish, on the trial, that it was so published or spoken. § 461. In the actions mentioned in the last sec- tion, the defendant may, in his answer, allege both the truth of the matter charged as defamatorj^ and any mitigating circumstances, to reduce the amount of damages; and whether he prove the jus- tification or not, he may give in evidence the miti- gating circumstances. See Civ. Code, sees. 45 et seq. § 462. Every material allegation of the com- plaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counter- claim, must, on the trial, be deemed controverted by the opposite party. Cross-complaint must be replied to: See ante, sees. 442. 438. Answer: See, generally, ante, sec. 437. § 463. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insutlicieut. Immaterial allegations need not be answered: See sec. 4G2. § 464. The plaintiff and defendant, respective- §§ 465, 469 VARIANCE-MISTAKES. 184 ly, may be allowed, on motion, to make a supple- mental complaint or answer, alleging facts ma- terial to the case occurring after the former com- plaint or answer. Amending to pleadings: Se sec. 472. § 465. All pleadings subsequent to the com- plaint must be filed with the clerlv, and copies thereof served upon the adverse party or his at- torney. [Amendment approved March 24, 1874; Amendments 1873-4, 401. In effect July 1, 1874.] Service of papers: Sec. 1011 et seq. Amendment pleadings, service of: See sees. 472, 432. Extending time to serve papers: See post, sec. 1054. CHAPTER VIII. VARIANCE— MISTAKES IN PLEADINGS AND AMEND- MENTS. § 469. Material variances, how provided for. § 470. Immaterial variance, how provided for. § 471. "What not to be deemed a variance. § 472. Amendments of course, and effect of demurrer. § 473. Amendments by the court. Enlarging time to plead and relieving from judgments, etc. § 474. Suing a party by a fictitious name, when allowed. § 475. No error or defect to be regarded unless it affects substantial rights. § 476. Time to amend or answer, running of. § 469. No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. AYlienever it appears that a party has been so misled, the court may order the pleadings to be amended, upon such terms as may be just. [Amendment approved March 24, 1874; Amendments 1873-4. 302. In effect July 1, 1874.] 185 VARIANCE— MISTAKES. §§ 470-472 Immaterial variance: Sec. 470. Variance, fatal: Sec. 471. Immaterial errors, generally: See post, sec. 475. § 470. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Variance, material: Sec. 469; fatal: Sec. 471. § 471. Where, Jiowever, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof. Proof, generally: Sees. 1824, 1869. Proof, failure of— dismissal for: Sec. 581, subd. 5. § 472. Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demur- rer and before the trial of the issue of law thereon, by filing the same as amended, and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overruled, and there is no answer filed, the court may, upon such terms as may be just allow an answer, to be filed. If a demurrer to the answer be overruled, the facts al- leged in the answer must be considered as denied to the extent mentioned in section 462. [Amend- ment approved March 24, 1874; Amendments 1873- '4, 302. In effect July 1, 1874.] Complaint, amended— filing: Sec. 432. § 473 VARIANCE— MISTAKES. 186 Answer no waiver of demurrer: See sec. 481, ante. Fictitious party: See, generally, sec. 474, post. § 473. The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correct- ing a mistake in the name of a party, or a mis- take in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after no- tice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this Code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; pro- vided, that application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal repre- sentative, at any time within one year after the rendition of any judgment in such action, to an- swer to the merits of the original action. When, in an action to recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the offi- cer taking the property, or the sureties on any bond or undertaking, is sued for taking the same, the officer or sureties may in their answer set up the true value of the property, and that the persoii 187 VARIANCE— MISTAKES. §§ 474, 475 in whose behalf said affidavit was made was en- titled to the possession of the same when said affi- davit was made, or that the value in the affidavit stated was inserted by mistake, the court shall dis- regard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. [Amendment approved March 9, 1880; Amend- ments 1880, 2. In effect March 9, 1880.] See sec. 585, post. § 474. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be desig- nated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. § 475. The court must, in every stage of an ac- tion, disregard any error, improper ruling, instruc- tion, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judg- ment, decision, or decree shall be reversed or af- fected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party com- plaining or appealing sustained and suffered sub- stantial injury, and that a different result w^ould have been probable if such error, ruling, instruc- tion, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown. [Ap- proved February 2G, 1897; Stats. 1897, c. 47. In effect immediately.] §§ 475, 476 VARIANCE— MISTAKES. 188 § 476. When a demurrer to any pleading is sus- tained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order. [Amendment, approved ISIarch 24, 1874; Amendments 1873-4, 304. In effect July 1, 1874.] Time to answer: Sees. 432, 472, 473. Notice, service of: Sec. 1010 et seq. TITLE VII. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. Oliapter I. Arrest and Bail. II. Claim and Delivery of Personal Prop- erty. III. Injnnction. lY. Attachment. V. Receivers. TI. Deposit in Court. CHAPTER I. ARREST AND BAIL. § 478. No person to be arrested except as prescribed by this Code. § 479. Cases in which defendant may be arrested. § 480. Order for arrest, by whom made. § 481. Affidavit to obtain order, what to contain. § 482. Security by plaintiff before order of arrest. § 483. Order, when made and its form. § 484. Affidavit and order to be delivered to the sheriff, and copy to defendant. § 485. Arrest, how made. § 486. Defendant to be discharged on bail or deposit. § 487. Bail, how given. § 488. Surrender of defendant. § 489. Same. § 490. Bail, how proceeded against. § 491. Bail, ^ow exonerated. § 492. Delivery of undertaking to plaintiff, and its accept- ance or rejection by him. § 493. Notice of justification. New undertaking, if other bail. § 494. Qualification of bail. § 495. Justification of bail. § 496. Allowance of bail. § 497. Deposit of money with sheriff. § 498. Payment of money into court by sheriff. § 499. Substituting bail for deposit. §§ 478, 479 ARREST AND BAIL. 190 § 500. Money deposited, how applied or disposed ot. § 501. Sheriff, when liable as bail, and his discharge from liability. § 502. Proceedings on judgment against sheriff. § 503. Motion to vacate order of arrest or reduce bail. Affidavits on motion. § 504. When the order vacated or bail reduced. § 478. No person can be arrested in a civil ac- tion, except as prescribed in this Code. Exemption from arrest— Constitutional provi- sions.— Imprisonment for debt, except for fraud, and in civil actions for torts, except in cases of willful injury to person or property, abolished: Art. 1, sec. 15. Members of legislature exempted from arrest: Art. 4, sec. 11. Electors are privileged on election day while in attendance at an election: Art. 2, sec. 2. No person to be imprisoned for a militia fine in time of peace: Art. 1, sec. 15. Code provisions.— Electors are privileged from arrest on election days, being the same in effect as the constitutional provision above: Pol. Code, sec. 1069. Persons belonging to the militaiT forces, while in atendance for militaiy duty, are also exempt from arrest on civil process: Pol. Code, sec. 2021. Females privileged from arrest in civil actions, at least in justices' courts: Code Civ. Proc, sec. 861. Witnesses are liliewise privileged: Id., sec. 2067. § 479. The defendant may be arrested, as here- inafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to de- fraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently mis- applied, or converted to his own use, by a public 191 ARREST AND BAIL. §§ 480, 481 officer, or an officer of a corporation, or an attor- ney, factor, broker, agent, or clerk, in tlie course of bis employment as such, or by any other person in a fiduciary capacity; or for misconduct or neg- lect in office, or in a professional employment, or for a willful violation of duty; 3. In an action to recover the possession of per- sonal property unjustly detained, when the prop- erty, or any part thereof, has been concealed, re- moved, or disposed of, to prevent its being found or taken by the sheriff; 4. When the defendant has been guilty of a fraud in contracting the debt or incurring the ob- ligation for which the action is brought; or in con- cealing or disposing of the property for the taking, detention, or conversion of Avhich the action is brought; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. [Amendment, approved March 24, 1874; Amendments 1S73-4, 304. In effect July 1, 1874.] § 480. An order for the arrest of the defendant must be obtained from a .iudge of the court in which the action is brought. [Amendment, ap- proved March 9, 1880; Amendments 1880, 3. In ef- fect March 9, 1880.] § 481. The order may be made whenever it ap- pears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of ac- tion exists, and that the case is one of those men- tioned in section four hundred and seventy-nine. The affidavit must be either positive or upon infor- mation and belief, and when upon informa- tion and belief, it must state the facts upon wliich the information and belief are founded. If an order of arrest be made, the affidavit must be §§ 482-484 ARREST AND BAIL. 192 filed with the clerk of the court. [Amendment, ap- proved March 24, 1874; Amendments 1873-4, 305. In effect July 1, 1874.] § 482. Before making the order, the judge must require a written undertaking on the pait of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking must be filed with the clerk of the court. [Amendment, approv- ed March 24, 1874; Amendments 1873-4, 305. In ef- fect July 1, 1874.] Undertakings, generally: See sec. 1057. Effect of: See sec. 941. Court commissioner's power to take: Sec. 259, ante. On dismissing action, undertalving, when to be delivered to plaintiff: Sec. 581. § 483. The order may be made at the time of the issuing of the summons, or any time afterward before judgment. It must require the sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned, to the clerk of the court in which the action is pending. § 484. The order of arrest, with a copy of the affidavit upon which it is made, must be deliv- ered to the sheriff, who, upon arresting the de- fendant, must deliver to him a copy of the affida- vit, and also, if desired, a copy of the order of ar- rest. 193 ARREST AND BAIL. §§ 485-48& Sheriff's duties.— To excuse omissiou by slieriff, direction by party or attorney must be in writing: Pol. Code, sec. 4185. § 485. Tlae sheriff' must execute the order by ar- resting the defendant and lieeping him in custody until discharged by law. Production of process upon request: Pol. Code, sec. 4188. § 486. The defendant, at any time before exe- cution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. § 487. The defendant may give bail by causing a written undertalving to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of ar- rest, that the defendant will at all times render himself amenable to the process of the court dur- ing the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff' the amount of any judgment which may be recovered in the ac- tion. Bail— Qualifications of: Sees. 494, 1057. § 488. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surren- der himself to the sheriff of the county where he was arrested. § 489. For the purpose of surrendering the de- fendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the sheriff to do Code Civ. Proc— 17. §§ 490-493 ARREST AND BAIL. 194 SO. Upon the arrest of defendant hy the sherift', or upon his delivery to the sheriff by the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery, or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender be not made within ten days after judgment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. § 490. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment. § 491. The bail are exonerated by the death of the defendant, or his imprisonment in a State pris- on, or by his legal discharge from the obligation to render himself amenable to the process. § 492. Within the time limited for that purpose, the sheriff must file the order of arrest in the office of the clerk of the court in which the action is pending, with his return indorsed thereon, together witli a copy of the undertaking of the bail. The original undertaking he must retain in his posses- sion until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he is deemed to have accepted them, and the sheriff is exonerated from liability. If no notice be served within ten daj'S, the original undertak- ing must be filed with the clerk of the court. § 493. AYitliin five days after the receipt of no- tice, the sheriff or defendant may give to the plain- tiff, or his attorney, notice of the justification of the same, or other bail (specifying the places of 195 ARREST AND BAIL. §§ 494, 495 residence aucl occupations of the latter), before a judge of the court, or county clerk, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given, there must be a new undertaking. [Amendment, approved March 9, 1880; Amendments 1880, 3. In effect March 9, 1880.] Justification of bail: See see. 495, infra. § 494. The qualifications of bail are as follows: 1. Each of them must be a resident and house- holder, or freeholder, within the State. 2. Each must be worth the amount specified in the order of the arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the judge or county clerk,, on justification, may allow more than two sureties to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufiicient bail. [Amendment, approved March 24, 1874; Amendments 1873-4, 306. In effect July 1, 1874.] Qualifications— of bail: Sec. 1057, post. Exemptions from execution: See sec. 690, post. § 495. For the purpose of justification, each of the bail must attend before the judge or county clerk, at the time and place mentioned in the no- tice, and may be examined on oath, on the part of the plaintiff, touching his sutficiency, in such man- ner as the judge or clerk, in his discretion, may thinlc proper. The examination "must be reduced to writing, and subscribed by the bail, if required by the plaintiff. Justification: Sec. 259, subd. 3. §§ 496-499 ARREST AND BAIL. 196 § 496. If the judge or clerk find the bail suffi- cient, he must annex the examination to the un- dertalving, indorse his alloAvance thereon, and cause them to be filed, and the sheriff is thereupon exonerated from liability. Court commissioners— power as to bail, sec. 259, subd. 3. § 497. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. In case the amount of tlie bail be reduced, as provided in this chapter, the defendant may deposit such amount instead of giving bail. In either case, the sheriff must give the defendant a certificate of the deposit made, and the defendant must be dis- charged from custody. Deposit in court: Sees. 572-574, 2104. » § 498. The sheriff" must, immediately after the deposit, pay the same into court, and take from the clerk receiving the same two certificates of such payment, the one of which he shall deliver to the l)laintitl's attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency. Sheriff— penalty for nonpayment: Pol. Code, sec. 4181. § 499. If money is deposited, as provided in the two last sections, bail may be given, and may jus- tify upon notice, a't any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited must be re- funded to the defendant. 197 ARREST AND BAIL. §§ 500-504 § 500. Where money has beendeposited, if it re- main on deposit at the time of the recovery of a judgment in favor of the phiintift', the clerk must, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, refund the surplus, if any, to the de- fendant. If the judgment is in favor of the de- fendant, the clerk must, under like direction of the court, refund to him the whole sum deposited and remaining unapplied. § 501. If, after being arrested, the defendant escape or is rescued, the sheriff is liable as bail; but he may discharge himself from such liability by the giving bail at any time before judgment. § 502. If a judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned unsatisfied in whole or in part, the. same proceedings may be had on his official bond for the recovery of the whole or any defi- ciency, as in other cases of delinquency. § 503. A defendant arrested may, at any time before the trial of the action, or if there be no trial, before the entry of judgment, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiffs may oppose the same by afiidavits or other proofs, in addition to those on which the order of arrest was made. [Amendment, approved March 24, 1874; Amendments 1873-4, 30G. In ef- fect July 1, 1874.] § 504. If, upon such application, it apears that there was not sufiBcient cause for the arrest, the §§ 509, 510 CLAIM AND DELIVERY. 198 order must be vacated; or if it appears that the bail was fixed too liigh, the amount must be re- duced. CHAPTER II. CLAIM AND DELIVERY OF PERSONAL PROPERTY. § 509. Delivery of personal property, when it may be claimed. § 510. Affidavit and its requisites. 5 511. Requisition to sheriff to take and deliver the prop- erty. § 512. Security on the part of the plaintiff and proceediugs in serving the order. § 513. Exception to sureties and proceedings thereon, or on failure to except. § 514. Defendant, when entitled to redelivery. § 515. Justification of defendant's sureties. § 516. Qualification of sureties. § 517. Property, how taken, when concealed in building or inclosure. § 518. Property, how kept. § 519. Claim of property by third person. § 520. Notice and affidavit, when and where to be filed. § 521. Actions on undertaking. § 509. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer claim the delivery of such property to him, as pro- vided in this chapter. Judgment: See sees. 627, GG7, post. Verdict in actions for recovery of specific per- sonalty: Sec. 027. § 510. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing: 1. That the plaintiff is the owner of the prop- erty claimed (particularly describing it), or is en- titled to the possession thereof; 2. That the property is wrongfullj" detained by the defendant; 199 CLAIM AND DELIVERY. §§ 511, 512 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief; 4. That it has not been taken for a tax, asses- ment, or fine, pursuant to a statute, or seized un- der an execution or an attachment against the property of the plaintiff, or if so seized, that it is by statute exempt from such seizure. 5. The actual value of the property. Justices' courts: Sec.*510 et seq.; made applica- ble to: Sec. 870. Subdivision 5. Value — incorrectly stated in afh- davit: Sec. 473. § 511. The plaintiff or his attorney may, there- upon, by an indorsement in writing upon the affi- davit, require the sheriff of the county where the property claimed may be, to take the same from the defendant. § 512. Upon a receipt of the afladavit and notice V^with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff", to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may, from any cause, be recovered against the plaintiff', the sheriff must forthwith take the property described in the affi- davit, if it be in the possession of the defendant or his agent, and retain it in his custody. He must, without delay, serve on the defendant a copj^ of the affidavit, notice, and undertaking, by deliver- ing the same to him personally, if he can be found, or to his agent from whose ])ossession the prop- erty is taken, or if neither can be found, by leaving §§ 513, 514 CLAIM AND DELIVERY. 200 them at the usual place of abode of either, with some person of suitable age and discretion, or if neither have any known place of abode, by putting them in the nearest post-office, directed to the defendant. Sheriff's duties: Pol. Code, sees. 4185, 4188, and generally, sees. 4175-4193. Qualifications of sureties: Sec. 1057. Return of property to defendant — verdict for: Sec. 627; judgment for: Sec. 667. Dismissal of action on.— Clerli is to hand under- taking to defendant: Sec. 581; subd. 1. Officer executing process must produce same on request: Pol. Code, sec. 4188. Sheriff's duties: Sec. 262. Value stated in affidavit is not conclusive evi- dence against sheriff or sureties: Sec. 473. § 513. The defendant may, within two days after the service of a copy of the affidavit and un- dertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objection to them. When the defendant excepts, the sureties must justify on notice in like manner as upon bail on arrest; and the sheriff is responsible for the sufficiency of the sureties until the objection to them is either waived or until they justify. If the defendant except to the sureties, he cannot re- claim the property as provided in the next section. Justification of sureties: See sec. 495, ante. § 514. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, re- quire the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound 201 CLAIM AND DELIVERY. §§ 515-517 ill double the value of the property, as stated in the affidavit of the plaintiff, for the delivery there- of to the plaintiff, if such delivery be adjudged, and for the paj'ment to him of such sum as may, for any cause, be recovered against the defend- ant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section 519. As to undertakings generally, see sec. 941; qual- ifications of sureties, sec, 1057. § 515, The defendant's sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before a judge or county clerk, in the same manner as upon bail or arrest: and upon such justification the sheriff must deliver the property to the defendant. The sheriff is responsi- ble for the defendant's sureties until they justify, or until the justification is completed or waived, and may retain the property until that time; if they, or others in their place, fail to justify at the time and place appointed, he must deliver the property to the plaintiff'. § 516. The qualification of sureties must be such as are prescribed by this Code, in respect to bail upon an order of arrest. Sureties — qualifications of: Sec. 1057, and ante, sees, 494, 495. § 517. If the property, or any part thereof be concealed in a building or inclosure, the sheriff must publicly demand its delivery; if it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the poAver of his county. Duties of sheriff: See Pol, Code, sec. 4175 et seq. §§ 518-521 CLAIM AND DELTVERY. 202 § 518. Wlien the sheriff has taken property, as in this chapter provided, he must Iveep it in a se- cure place, and deliver it to the party entitled thereto, upon receiving his fees for tali;ing- and his necessary expenses for keping the same. § 519. If the property talven be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the sheriff, the sheriff is not bound to keep the prop- erty or deliver it to the plaintiff, unless the plain- tiff, on demand of him or his agent, indemnify the sheriff against such claim, by an undertaking, by tv^'o sufficient sureties; and no claim to such property by any other person than the defendant or his agent is valid against the sheriff unless so made. § 520. The sheriff must file the notice, under- taking, and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the prop- erty mentioned therein. § 521. [Repealed.] Act approved March 24, 1874; Amendments 1873-4, 306. In effect July 1, 1874.] 203 INJUNCTION. §§ 525, 526 CHAPTER HI. INJUNCTION. I 525. Injunction, what it is and who may grant it. § 526. When it may be granted. § 527. At what time it may be granted, and what is re- quired to obtain it. § 528. Injunction after answer. § 529. Security upon injunction. § 530. Order to show cause why injunction should not be granted. § 531: Injunction to suspend business of a corporation, how and by whom granted. § 532. Motion to vacate or modify injunction. § 533. When to be vacated or modified. § 525. An injimction is a writ or order requiring ^ a person to refrain from a particular act. It may be granted by the court in wliicli tlie action is brought, or by a jud^e thereof; and when made by a iudge, it may be enforced ns an order of the court. [Amendment, approved March 9, 1880; Amendments 1880, 3. In effect March % 1880.] Injunction.— Disobedience to is contempt: Sees. 1209, 1210; limitations, how affected by: Sec. 356; proceedings to obtain: Sees. 257, to 531; vacating or modifying: Sees. 532, 533. A seal is necessary to a writ: Sec. 152, subd. 1. Injunction, kinds of— provisional or preliminary, also called temporary: Sec. 525 et seq.; sec. 526, subds. 2 and 3, permanent or final (including lim- ited and perpetual), sec. 526, subd. ]. Courts and judges— power to grant injunction, on any day: Sees. 76, 134; at chambers: sec. 166; court commissioners not empowered to issue: Sec. 259, subd. 1. ^ § 526. An injunction may be granted in the fol- owing cases: § 527 INJUNCTION. 204 1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in re- straining the commission or continuance of the act complained of, either for a limited period or perpetually. 2. AVhen it appears by the complaint or affidavit that the commission or continuance of some act during the litigation would produce waste, great or irreparable injury to the plaintiff. 3. When it appears during the litigation that the defendant is doing, or threatens, or Is about to do, or is procuring or suft'ering to be done, some act in violation of the plaintift"'s rights, respecting the subject of the action, and tending to render the judgment ineffectual. Where the obligation arises from a trust: Civ. Code, sec. 3422. To prevent a legislative act by a municipal cor- poration: Civ. Code, sec. 3423. p]njoining nuisance: Sec. 731, post. Trademarlv, use of enjoined: Pol. Code, sees. 3196-3199. Individual cannot restrain public nuisance: See post, sees. 731, et seq. Mortgage.— Injunction to restrain party in pos- session from waste during foreclosure suit: Sec. 745. Disobeying order or process, contempt, etc.: Sees. 1209, 1210. § 527. The injunction may be granted at the time of issuing the summons upon the complaint, and at any time afterward, before judgment, upon affidavits. The complaint in the one case, and the affidavits in the other, must show satisfactorily that sufficient grounds exist therefor. No injunc- tion can be granted on the complaint unless it is 205 INJUNCTION. §§ 528. 529 verilied, AMieu granted on the conipaint, a copy of the comphiint and verificatiou attached must be served with the iujunctiou; ^Yhen granted upon affidavit, a copy of the affidavit must be served with the injunction. No injunction granted prior to the actual trial of the cause wherein it is grant- ed shall continue in force for a longer period than twelve months from the time such injunction was granted, except by consent of the parties, or unless the cause be set for trial upon its merits. [Amendment, approved March 12, 1895; Stats. 1895, 51. In effect March 12, 1895.] Complaint— verification of: Sec. 446. Service by sheriff: See Sheriff's Duties, Pol. Code, sees. 4175-4191. § 528. An injunction cannot be allowed after the defendant has answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the in- junction. § 529. On granting an injunction, the court or judge must require, except when the people of the State, a county, or municipal corporation, or a married woman in a suit against her husband, is a party plaintiff, a written undertaking on the part of the plaintiff, with sufficient sureties, to the ef- fect that the plaintiff will pay to the party enjoin- ed such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. Within five days after the service of the injunction, the de- fendant may except to the sufficiency of the sure- ties. If he fails to do so, he is deemed to have ^^'aived all objections to them. When excepted to. Code Civ. Proc— 18. I 530 INJUNCTION. 206 the plaintiff sureties, upon notice to tlie defendant of not less than tAYO nor more than five days, must justify before a judge or county clerli in the same manner as upon bail on arrest, and upon fail- ure to justify, or if others in their place fail to justify at the time and place appointed, the order granting an injunction shall be dissolved. [Amend- ment, approved April 15, 1880; Amendments 1880, 62. In effect April 15, 1880.] Undertakings generally: Sec. 941; returned on dismissal: Sec. 581, subd. 1. Sureties, qualifica- tions of: Sec. 1057; justification of: Sec. 495, also sec. 259, subd. 3. Court commissioners, power to take bonds and undertakings, examine sureties, etc.: Sec. 259, subd. 3, § 530. If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained. In all actions pend- ing or Avhich may be hereafter brought, when an injunction or restraining order has been or may be granted, or applied for, to prevent the diversion ]iending the litigation, of water used or to be used for irrigation or domestic purposes only, if it be made to appear to the court that the plaintiff is entitled to the injunction, but that the issuance tliereof pending the litigation will entail great damage upon the defendant, and that plaintiff can be fully compensated for such damages as he may suffer, the court may refuse the injunction upon the defendant giving a bond, such as is provided for in section 532; and upon the trial the same proceedings shall be had, and with the same effect, 207 INJUNCTION. §§ 531, 532 as in said section provided. [Amendment, ap- proved Marcli 24, 1887; Stats. 1887, 240. In effect Marcli 24, 1887.] § 531. An injunction to suspend the general and ordinary business of a corporation cannot be granted except by the court or a judge thereof; nor can it be granted without due notice of the ap- plication therefor to the proper officers or manag- ing agent of the corporation, except when the peo- ple of this State are a party to the proceeding. § 532. If an injunction be granted without no- tice, the defendant at any time before the trial, may apply, upon reasonable notice to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on whicli the injunc- tion was granted, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to those on which the injunction was granted. In all actions pending, or which may be hereafter brought, when an injunction or re- straining order has "been or may be granted or ap- plied for, to prevent the diversion, pending the lit- igation, of water used or to be used for irriga- tion or domestic purposes only, if it be made to ap- pear to the court that great damage will be suf- fered by the defendant in case the injunction is continued, and that the plainti^' can be fully com- pensated for any damages he may suffer by reason of the continuance of the acts of the defendant during the pendency of the litigation, the court, in its discretion, may dissolve or modify the injunc- § 533 INJUNCTION. 208 tion, upon the defendant giving a bond, with sure- ties to be approved by the judge, and in such amount as may be fixed by the court or judge, con- ditioned that the defendant will pay all damages which the plaintiff may suffer by reason of the continuance during the litigation of the acts com- plained of. Upon the trial the amount of such damages shall be ascertained, and in case judg- ment is rendered for the plaintiff, the amount fixed as such damages shall be included in the judg- ment, together with reasonable attorneys' fees. Upon a suit brought on the bond the amount of damages as fixed in said judgment shall be con- clusive upon the sureties. [Amendment approved March 24; Stats. 1887, p. 240. In effect March 24, 1887.] Vacating orders made out of court: Sec. 937. § 533. If upon such application it satisfactor- ily appear that there is not sufficient ground for the injunction, it must be dissolved; or if it sat- isfactorily appear that the extent of the injunction is loo great, it must be modified. i 209 ATTACHMENT. § 537 CUArXER IV. ATTACHMENT. § 537. Attachment, when and in what cases may issue. § 538. Affidavit for attachment, what to contain. § 539. Undertaking on attachment. § 540. Writ, to whom directed and what to state. § 541. Shares of stock and debts due defendant, how at- tached and disposed of. § 542. How real and personal property shall be attached. § 543. Attorney to give written instructions to sheriff what to attach. § 544. Garnishment, when garnishee liable to plaintiff. § 545. Citation to garnishee to appear before a court or judge. § 543. Inventory, how made. Party refusing to give mem- orandum may be compelled to pay costs. § 547. Perishable property, how sold. Accounts without suit to be collected. § 548. Property attached may be sold as under execution, if the interest of the parties require. § 549. When property claimed by a third party, how tried. § 550. If plaintiff bbtains judgment, how satisfied. § 551. When there remains a balance due, how collected. § 552. W^hen suits may be commenced on the undertaking. § 553. If defendant recover judgment, what the sheriff is to deliver. § 554. Proceedings to release attachment, before whom tak- en. § 555. Attachment, in what cases it may be released and upon what terms. § 556. When a motion to discharge attachment may be made, and upon what grounds. § 557. When motion made on affidavit, it may be opposed by affidavit. § 558. When writ must be discharged. § 559. When writ to be returned. § 537. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as in this chapter provided, in the following cases: § 538 ATTACHMENT. 210 1. lu an action upon a contract, express or im- plied, for the direct payment of mone3% where the contract is made or is payable in this State, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless: 2. In an action upon a contract, express or im- plied, against a defendant not residing in this State. [In effect July 1st, 1874.] Attachment, dissolution generally: Sees. 556-558; sherifC's duties, sees. 542, 550, and return, sees. 546, 559; affidavit, see sec. 557; bonds, sees. 539, 555; garnishment, sees. 542, 543-545. I'reventing levy by counter-bond: See sec. 540. Pwesidence: See Polit. Code, sec. 52. § 538. The clerk of the court must issue the j writ of attachment, upon receiving an affidavit \ by or on behalf of plaintiff, showing: w 1. That the defendant is indebted to the plain- tiff (specifying the amount of such indebtedness over and above all legal setoffs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this State, and that the pay- ment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless; or, 2. That the defendant is indebted to the plain- tiff (specifying the amount of such indebtedness over and above all legal setoffs or counter-claims) and that the defendant is a nonresident of the State; and 211 ATTACHMENT. g 536 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delaj', or de- fraud any creditor of the defendant. [Amendment approved March 24, 1874; Amendments 1873-4, p. 307. In effect July 1, 1874.] Duty of clerk: See Polit. Code, sec. 1032. § 539. Before issuing the writ the clerk must require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, and not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recover .iudgment, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceed- ing the sum specified in the undertaking. With- in five days after service of the summons in the action, the defendant may except to the suffi- ciency of the sureties. If he fails to do so, he is deemed to have Avaived all objections to them. When excepted to, the plaintiff's sureties, upon notice to the defendant of not less than two nor more than five days, must justify before a judge or county clerk in the same manner as upon bail on arrest, and upon failure to justify, or if others in their place fail to justify, at the time and place appointed, the clerk or judge shall issue an order vacating the writ of attachment. [Amendment approved March 30, 1874; Amendments 1873-4, p. 406. In effect March 30, 1874.] Undertaking, generally: Sees. 259, subd. 3, 581; subd. 1. Sureties, justification of: Sec. 495; qualifications of: Sec. 1057. Dismissal of action on. — Clerk is to hand uudei- taking to defendant: Sec. 581, subd. 1. §§ 540-542 ATTACHMENT. 212 § 540. The writ must be directed to the sheriff or any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plain- tiff's demand, the amount of which must be stated in conformity with the complaint, unless the de- fendant give him security by the undertaking of at least two sufficient sureties, in an amount suf- ficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be attached; in which case, to take such undertaking. Several writs may be issued at the same time to the sher- iffs of different counties. Writ, generally: Sec. 51; seal necessary to writ, sec. 153, subd. 1. Sheriff, duties, of, excused only by written di- rections: Polit. Code, sec. 4185; when must show process, Polit. Code, sec. 4188. Exemptions from execution: Sec. 690. Bond for release after appearance: Sec. 555. § 541. The rights or shares which the defend- ant may have in the stock of any corporation or company, together, with the interest and protit thereon, and all debts due such defendant, and all other property in this State of such defendant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judg- ment and execution. Stocks or shares, how attached: Sec. 542, subd. 4. Debts and credits, etc., how attached: Sec. 542, subd. 5. Garnishment, generally: Sees. 543-545. \j § 542. The sheriff to whom the writ is directed and delivered must execute the same without de- 213 ATTACHMENT. § 542 lay, and if the undertaking mentioned in section five liundred and forty be not given, as follows: 1. Ileal property, standing upon the records of the county in the name of the defendant, must be attached, by filing with the recorder of the coun- ty, a copy of the writ, together with a description of the property attached, and a notice that it is at- tached; and by leaving a similar copy of the writ, description, and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached. 2. Real property, or an interest therein, belong- ing to the defendant, and held by any other per- son, or standing on the records of the county, in the name of any other person, must be attached, by filing with the recorder of the county a copy of the writ, together with a description of the property, and a notice that such real property, and any interest of the defendant therein, held by or standing in the name of such other person (nam- ing him), are attached; and by leaving with the occupant if any, and with such other person, or his agent, if known and within the county, or at tbo residence of eitlier. if within the county, a copy of the writ, with a similar description and no- tice. If there is no occupant of the property, a copy of the writ, togetlier with such description and notice, must be posted in a conspicuous place upon the property. The recorder must index such attachment when filed, in the names, both of the defendant and of the person by whom the property is held or in whose name it stands on the records : 3. Personal property, capable of manual de- livery, must be attaclied by taking it into custody; 4. Stocks or shares, or interest in stocks or shares, of any corporation or company, must be §§ 543. 544 ATTACHMENT. 214 attached by leaving with the president, or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ; 5. Debts and credits, and other personal prop- erty, not capable of manual delivery, must be at- tached by leaving with the person owing such debts, or having in his possession, or under his control, such credits and other personal property, or with his agent, a copy of the writ, and a no- tice that the debts owing by him to the defend- ant or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ. Attachment lien, officer's: Civ. Code, sec. 3057; leviable interest, in mortgaged property. Civ. Code, sees. 2968-2970; fraudulent transfers, Civ. Code, sees. 1227, 3431, 3432, 3439-42. § 543. Upon receiving information in writing from the plaintiff or his attorney, that any per- son has in his possession or under his control any' credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the sheriff must serve upon such person a copy of the writ and a notice that such credits, or other property, or debts, as the case may be, are at- tached, in pursuance of such writ. § 544. All persons having in their possession or under their control any credits or other personal property belonging to the defendant, or owing any debts to the defendant, at the time of ser- vice upon them of a copy of the writ and notice, US provided in the last two sections, shall be, un- 215 ATTACHMENT. §§ 545, 546 less such property be delivered up or transferred, or such debts be paid to the sheriff, liable to the plaintiff for tlie amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. Similar provision as to execution: Sec. 71G. § 545. Any person owing- debts to the defend- ant, or having in his possession or under his con- trol any credits or other personal property belong- ing to the defendant, may be required to attend before the court or judge, or a referee appointed by the court or judge, and be examined on oath re- specting the same. The defendant m^iy also be re- quired to attend, for the purpose of giving infor- mation respecting his property, and may be ex- amined on oath. The court or judge may, after such examination, order personal property, capa- ble of manual delivery, to be delivered to the sher- iff on such terms as may be just, having refer- JUDGMENT IN CIVIL ACTIONS. Chapter I. Jud.2:ment in general. II. Judgment upon failure to answer, III. Issues— the modes of trial and post- ponements. IV. Trial by jury. Y. Trial by the Court. VI. Of references and trials by referees. VII. Provisions relating to trials in general. VIII. The manner of giving and entering judgment. CHAPTER I. JUDGMENT IN GENERAL. § 577. Judgment defined. § 578. Judgment may be for or against one of the parties. § 579. Judgment may be against one party and action pro- ceed as to others. § 580. The relief to be awarded to the plaintiff. § 581. Action may be dismissed or nonsuit entered. § 582. All other judgments are on the merits. § 577. A judgment is the final determination of the rights of the parties in an action or proceed- ing. Judgment confession by: Sec. 1132; default by, sec. 585; demurrer on. sec. (>3G; estoppel as to, sec. 1908; generally, G64; nonsuit, sec. 581; pleadings, judgment on, sec. 582; on trial by court, sec. 633; on trial by jury. sec. GG4. Order defined: Sec. 1003. Final judgment: See, also, sees. 664, 939, post. 227 JUDGMENT IN GENERAL. §§ 578-581 § 578. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. Strilving out party: Sec. 473. Fresh parties, bringing in: Sec. 389. Service on one defendant out of several, effect of: Sec. 414. Joint debtors, proceedings against: Sec. 989. .Joining persons severally liable on same instru- ment: Sec. 383. Association, action against persons under name of: Sec. 388. § 579. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, -whenever a several judgment is proper. Striking out party: Sec. 473. Fresh parties, bringing in: Sec. 389. Service on one defendant out of several, effect of: Sec. 414. .Joint debtors, proceedings against: Sec. 989. Joining persons severally liable on same instru- ment: Sec. 383. § 580. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief con- sistent with the case made by the complaint and embraced within the issue. § 581. An action may be dismissed, or a judg- V ment of nonsuit entered, in the following cases: § 581 JUDGMENT IN GENERAL. 228 1. By the plaintiff himself, by written request to the clei'li, tiled among the papers in the case, at any time before trial, upon payment of costs; pro- ' \ided, a counter-claim has not been made, or af- firmative relief sought by the cross complaint or answer of the defendant. If a provisional rem- edy has been allowed, tlie undertaking must there- upon be delivered by the clerlv to the defendant, who may have his action thereon; 2. By either party upon tlie written consent of the other; 3. By the court, when the plaintiff fails to ap- pear on the trial, and the defendant appears and asks -for the dismissal; 4. By the court, when, upon the trial and be- fore the final submission of the case, the plaintiff abandons it; 5. By the court, upon motion of the defendant, when upon the trial the plaintiff' fails to prove a sufficient case for the jury; G. By the court, when, after verdict or final sub- mission, the party entitled to judgment neglects to demand and have the same entered for more than six months. The dismissals mentioned in subdivisions one and two hereof are made by entrj' in the clerk's register. The dismissals mentioned in subdivisions three, four, five, and six of this section, shall be made by orders of the court entered upon the minutes thereof, and shall be effective for all purposes when so entered, but the clerk of the court shall note such orders in his register of actions in the case. 7. And no action heretofore or hereafter com- menced shall be further prosecuted, and no further proceedings shall be had therein, and all actions lieretofore or hereafter commenced shall be dis- 229 JUDGMENT UPON FAILURE TO ANSWER. §§ 582, 585 missed by the court iu which the same shall have l>eeii commenced, on its own motion, or on mo- tion of any party interested tlierein, whether named in the complaint as a party or not, unless summons shall have been issued within one year, and all such actions shall be in like manner dis- missed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such ac- tions may be prosecuted, if appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served. [Approved March 9, 1S97; Stats. 1S97, c. 95.J This section was also amended in 1895; Stats. 1895, p. 31. Dismissal for Tsant of prosecution: See sec. 594. Variance, fatal or otherwise: Sees. 469-471. Trial.— Either party may bring on: Sec. 594. § 582. In every case, other than those men- tioned in the last section, judgment must be ren- dered on the merits. ''^"^ CHAPTER II. JUDGMENT UPON FAILURE TO ANSWER. § 585. In what cases judgment may be had upon the fail- ure of the defendant to answer. § 585. Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In an action arising upon contract for the recovery of money or damages only, if no answer lias been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amotmt specified in the sum- mons, including the costs, against the defendant, or against one or more of several defendants in Code Civ. Proc— 20. § 585 JUDGMENT UPON FAILURE TU ANSWER. 2.'>0 the cases proA'ided fur in section four Imudred aiul fourteeu; 2. lu other actious, if no answer has been lih-vl with the clerk of the court within the time sjiiHi- fied in the summons, or such further time as iiia\ have been granted, the clerlv must enter the dv- fault of the defendant; and thereafter tlie phiintiff maj' apply at the iirst or any subsecjuent term of the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary, to enable the court to give judg- ment, or to carry tiie judgment into effect, ilie court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examina- tion of a long account be involved, by a reference as above provided; 3. In actions Avhere the service of the summons was by publication, the plaintiff, upon the expira tion of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the State, must require the plaintiff, or his agent, to be examined on oath, respecting any payments tliat have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Pleadings, judgment on: Sec. 582. As to validity of service of summons: Sec. 411. Names, fictitious, amending, etc.: Sec. 474. Appeal: Sec. 939. Award, judgment on: Sec. 1286. 231 ISSUES. § 588 Confession, judgment by: Sec. 1133. Dollars and cents, without fractions, money judgments must be in: Polit Code, sec. 3274. Fiduciary capacity, judgment against person in: Sec. 6G7. Gold coin, judgment in: Sec. 667, Joint debtors, proceedings against: Sec. 989. Judgment, generally, docketing, satisfaction, etc.: Sees. 664-675. Judgment, void, etc., setting aside: Sec. 473, Mechanics' lien, judgment on: Sec. 1193. Objections, waiver of, by not demuiTing or an- swering: Sec. 434. Particulars, after order for: Sec. 454. Feuding, action when: Sec. 1049. Reference: Sees. 6.3S, 639. ■Replevin, judgment in: Sec. 667. CHAPTER III. iSSUES-THE MODE OF TRIAL AND POSTPONEMENTS. § 588. Issue defined, and the different kinds. 589. Issue of law, how raised. 590. Issue of fact, how raised. 591. Issue of law, how tried. § 592. Issue of fact, how tried. When issues both of law and fact, the former to be first disposed of. § 593. Clerk must enter causes on the calendar, to remain until disposed of. 5 594. Parties may bring issue to trial. § 595. Motion to postpone a trial for absence of testimony, requisites of. § 596. In cases of adjournment a party may have the tes- timony of any witness taken. § 588. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party, and is controverted by the other. They are of two Idnds: 1. Of Inw; and. §§ 5S9-503 ISSUES. 232 2. Of fact. See sees. 589, 590. § 589. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. § 590. An issue of fact arises— 1. Upon a material allegation in the complaint controverted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined thereon. § 591. An issue of law must be tried by the court, unless it is referred upon consent. Trial by court, generally: Sec. G31 et seq. § 592. In actions for The recovery of specific real or personal property, Avith or without dam- ages, or for money claimed as due upon contract, or as damages for breach of contract, or for in- juries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is or- dered, as provided in this Code. Where in these cases there are issues both of law and fact, the is- sue of law must be first disposed of. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this Code. [Amendment approved March 24, 1874; Amendments 1873-4, p. 309. In effect July 1, 1874.] Generally, as to jury trial: See sees. GOO-628. Waiver of jury trial: Sec. 631. Iteference: Sees. 0.38-645. Court, trial by: Sees. 631-636. § 593. The clerk must enter causes upon the calendar of the court according to the date of 233 ISSUES. §§ 594, 595 issue. Causes once placed ou the calendar must remain upon the calendar until linally disposed of; provided, that causes may be dropped from the calendar by consent of parties, and may be again restored upon notice. [In effect March 9, 1880.] Clerk placing on calendar, mandamus for fail- ure: Sec. 108.J. Issue, generally: Sec. 588. Abolition of terms: See Const. Cal., art. G, sec. 5. s,^^ § 594. Either party may bring an issue to trial ^ or to a hearing, and in the absence of the adverse fs^. party, unless the court, for good cause, otherwise I direct, may proceed with his case, and take a dis- missal of the action, or a verdict or judgment, as the case may require. Dismissal: Sec. 581. Answer, service of, where plaintiff cannot be found: Sec. 465. Surprise, setting aside judgmeut for: Sec. 473. New trial: Sec. 057. § 595. A motion to postpone a trial on the ground of the absence of evidence can only be made upon aflidavit showing the materiality of the evidence expected to be obtained, and that due dil- igence has been used to procure it. A trial shall be postponed Avhen it appears to the court that the attorney of record, party, or principal Avitness is actually engaged in attendance upon a session of the legislature of this State as a member thereof. The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evi- dence which he ex])ects to obtain; and if the ad- verse party thereupon admits that such evidence would be given, and tliat it be con.^idered as §§ 596, 600 TRIAL BY JURY. 234 actually given on the trial, or offered and over- ruled as improper, the trial must not he post- poned. [Amendment approved March 2, 1880; Amendments 1880, p. 1. In effect March 2, 1880.] Costs on continuance: See sec. 1029. § 596. The party obtaining a postponement of a trial in any court of record must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in at- tendance, be then taken by deposition before a judge or clerk of the "court in which the case is pending, or before such notary public as the court may indicate, which must accordingly be done, and the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witnesses were pro- duced. Depositions, in the State: Sees. 2019-2021, 2031- 2038. CHAPTER IV. TRIAL BY JURY. Article I. Formation of Jury. II. Conduct of the Trial. III. The Verdict. ARTICLE I. FORMATION OF THE JURY. § 600. Jury, how drawn. § 601. Challenges. Each party entitled to four peremptory challenges. § 602. Grounds of challenge. § 603. Challenges, how tried. § 604. Jury to be sworn. § 600. When the action is called for trial by jury, the clerk must draw from the trial jury box 235 TlilAL BY JURY. g:) 601, 602 of the court the ballots containing the names of the jurors, until the jury is completed or the bal- lots are exhausted. Jury, generally, sees. 190-254; trial jury, sees. 193, 194. Trial by jury, conduct of: Sec. 607 et seq.; waiver of, sec. 631; verdict after, sec. 624 et seq. Trial jury box: Sec. 246. Jurors, who are competent: Sees. 198, 190. Exemptions and excuses: Sees. 200-202. § 601. Either party may challenge the jurors; but where there are several parties on either side, they must join in a challenge before it can be made. The challenges are to individual jurors, and are either peremptory or for cause. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be talven by the parties alter- nately, commencing with the plaintiff. [Amend- ment approved March 24, 1874; Amendments 1873- 4, p. 310. In effect July 1, 1874.] Challenge for cause: Sec. 202. L § 602. Challenges for cause may be taken on 'one or more of the following grounds: 1. A want of any of the qualifications prescribed by this Code to render a person competent as a juror; 2. Consanguinity or affinity within the fourth degree to any party; 3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent, to either party, or being a member of the family of either party, or a part- ner in business with either party, or surety on any bond or obligation for either party; 4. Having served as a juror or been a witness g§ 603, 604 TRIAL BY JURY. 236 on a previous trial between ttie same parties, for the same cause of action; 5. Interest on tlie part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or cit- izen of a municipal corporation; 6. Having- an unqualified opinion or belief as to the merits of the action, founded upon knowledge of its material facts, or of some of them; 7. The existence of a state of mind in the juror evincing enmity against or bias to or against either party. [Amendment approved March 24, 1874; Amendments 1873-4, p. 310. In effect July 1, 1874.] Subd. 1. Want of necessary qualifications.— Competent jurors: Sec. 198. Incompetent jurors: Sec. 199. Exemptions and excuses: Sec. 200. Subd. 2. Consanguinity or affinity, generally: See sec. 170, ante. Challenge in criminal causes: See Ten. Code, sees. 1055 et seq. § 603. Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge. § 604. As soon as the jury is completed, an oath must be administered to the jurors, in sub- stance, that they and each of them will well and truly try the matter in issue between , the plaintiff, and , defendant, and a true verdict render, according to the evidence. Oath, administration of: See sees 2093-2097. 237 TRIAL BY JURY. § 607 ARTICLE IT. CONDUCT OP THE TRIAL. § 607. Order of proceedings on trial. § 608. Cliarge to the jury. Court must furnish, in writing, upon request, the points of law contained therein. § 609. Special instructions. § 610. View by jury of the premises. § 311. Admonition when jury permitted to separate. § 612. Jury may take with them certain papers. § 613. Deliberation of jury, how conducted. § 614. May come into court for further instructions. § 615. Proceedings in case a juror becomes sick. § 616. When prevented from giving verdict, the cause may be again tried. § 617. While jury are absent, court may adjourn from time to time. Sealed verdict. Final adjournment dis- charges the jury. § 618. Verdict, how declared. Form of. Polling the jury. § 619. Proceedings when verdict is informal. § 607. "When the jury li'^s been sworn, the trial iiiiist proceed in tlie followiniz: order, unless the judge, for special reasons, otherwise directs: 1. Tlie plaintiff, after stating- the issue and his case, must produce the evidence on his part; 2. Tlie defendant may then open his defense, and offer his evidence in support thereof. 3. The parties may then respectively offer rebut- ting evidence only, unless the court, for good rea- son, in furtherance of justice, permit them to of- fer evidence upon their original case; 4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the plaintiff must commence and may conclude the argument; 5. If several defendants, having separate de- fenses, appear by different counsel, the court must determine their relative order in the evidence and argument; § 607 TRIAL BY JURY. 23S G. The court may then charge the jury. Order of proof, discretion of court, as to, gen- erally: Sec. 2042. Proceedings, etc., on trial. — Amendments: Sec. 473. Arguments: Sec. 607. Charge to jury: Sees. 608, 609. Contempts: Sees. 1209-1222. Contin- uance: Sees. 595, 596. Crim. con., private trial: Sec. 125. Damages, interest, etc.: Sec. 426, note. Di- vorce, private trial: Sec. 125. Either party may bring on trial: Sec. 594. Errors to be disregarded: Sec. 475. Exceptions: Sees. 646-653. Fact, ques- tions of, are for jury: Sec. 2102. Inspection of writings: Sec. 100. Instructions to jury: Sees. 608, 609. Judge, disqualification of: Sec. 170. Language of proceedings: Sees. 185, 1056. Law^ questions of, are for court: Sec. 2102. Marriage, breach of promise of, private trial: Sec. 125. Non- suit, etc.: Sec. 581. As to the proof necessary to make out a case, see sees. 1867, 1869, post. Phono- graphic reporters: Sees. 269-274. Place of trial: Sees. 392-400. Pleadings, construction of: Sees. 452-465. Proof, etc., order of: Sees. 607, 2042. Ref- erence, by consent. Sec. 638. Compulsory: Sec. 639. Seduction, private trial: Sec. 125. Title of papers, detective: Sec. 1046. Variance: Sees. 469- 471. Arguments: sec. 607. Charging the jury: See infra, sees. 608, 609. Verdict: Sees. 624-628. View by jury: Sec. 610. Evidence.— Admissibility is for court: Sec. 2102. Allegations, material only need be proved: Sec. 1867. Burden of proof: Sees. 1869, 1981. Declara- tions, acts, admissions, etc.: Sees. 1848, 1854, 1870; sees. 2-8. Estoppel: Sees. 1962, 1978. Indispensa- ble evidence, including statute of frauds, etc.: Sees. 1967-1974. Judicial knowledge: Sec. 1875; jury to accept: Sec. 2102. Presumptions: Sees. 1957-1963. Offer to compromise: Sees. 997, 2074, 2078. Proof, order of: Sec. 2042. Relevancy of evi- 239 TRIAL BY JURY. § 007 dence, sees. 18GS-1870. Kelevancy, eollatcnil f.-icis: Sees. lSi)8, 1870. Tender: Sec. 2U7U. Witnesi^es.— Affidavits: Sees. 2(309-2015. All i;e.-- sons may be: Sec. 1879: iiieliidiiig- judge: Sec. 1883 ; exceptions: Sees. 1880, 1881; must be sworn, or a:- tirm: Sec. 1840. Answer, witness must: Sec. 200."). Arrest of witness: Sec. 2070. Common reputation, testimony as to: Sec. 1870, subd. 11. Cumpelliuii- attendance: Sees. 1085-1997, 2004. Credibility; Sees. 1847, 1870, sub J. 10. Cross-examination: Sec. 2048. Depositions: Sees. 2019-2038. Terpetuating testimony: Sees. 2083-2089. Direct examination: See. 2045. Excluding witnesses from court room: Sec. 2043. Experts: Sec. 1870, subd. 9. Impeach- ing, and evidence of good character: Sees. 2049- 2054. Insanity, etc., opinion as to: Sec. 1870, subd. 10. Interpreters: See. 1884. Leading ques- tions: See. 2046. Mode of interrogation: Sec. 2044. Oaths: Sees. 2093-2097. One witness sufficient to prove a fact, except perjury and treason: Sec. 1844. I'ersonal knowledge, M-itness must testify as to: Sec. 1845. Presumed to speak truth; repelling presumption; credibility for jury: Sec. 1847. Pro- tection of witnesses: See. 2066. Refreshing mem- ory: See. 2047. Testimony, clerk to take down, if no shorthand reporter: See. 1051. Usage, testi- mony as to: See. 1870, subd. 12. Writing shown to witness, other side may see: Sec. 2054. Writings. — Agreement reduced to: See. 1856. (^ommon reputation, monuments, family books, ere.: Stc. 1870, subd. 13. Construction: Sees. 1857- 18(>6; is for court: See. 2102; descriptive part of conveyances of real property: See. 2077: Sees. 1855. 1870, subd. 14. Erasures: See. 1982. Inspection: See. 1000. Private writings: Sees. 1929-1951. Pub- lif writings: Sees. 1892-1926. Receipts: See. 2075. Material objects.- (Jenerally: See. 1954. .Tudicial knowledge.— Generally: Sec. 1875. Jury to accept: Sec. 2102. §§ 608-611 TRIAL BY JURY. 240 § 608. In cbargiijg the jury, the court iiuay state to tlieiii all matters of law which it thiuks necessary for their iuformation in giving their verdict; and if it state the testimony of the case, it must inform the jury that they are the exclusive judges of all questions of fact. The court must furnish to either party, at the time, upon request, a statement, in writing, of the points of law con- tained in the charge, or sign at the time a state- ment of such points prepared and submitted by the counsel of either party. Matters of laAv, court stating in charge: Const. Cal., art. 7, sec. ir-; sec. 2102, also sec. 20G1; sec. 057, subd. 7. § 609. Where either party asks special instruc- tions to be given to the jury, the court mtist either give such instruction, as requested, or refuse lo do so, or give the instruction with a moditication, in such manner that it may distinctly appear wliat instnictions were given in whole or in part. Exceptions: Sec. 046. § 610. When, in the opinion of the court, it is proper for the jury to have a view of the properly which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an otticer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than 1he person so appointed, shall speak to them on any subject connected with the trial. § 611. If the jury are permitted to separate, either during the trial or after the case is sub initted to them, they shall be admonished by the 211 TRIAL BY JURY. §§ 312-614 convt that it is tlieir duty uot to converse with or sutler themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon nntil the case is finally submitted to them. § 612. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except deposi- tions or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony or other pro- ceedings on the trial, taken by themselves, or any of them, but none taken by any other person. § 613. When the case is finally submitted to the jury, they may decide in court or retire for delib- eration; if they retire, they must be kept together, in some convenient place, under charge of an offi- cer, until at least three-fourths of them agree up- on a verdict or are discharged by the court. Unless by order of the court, the officer having them un- der his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they or three-fourths of them are agreed upon a verdict; and he must not, before their verdict is rendered, communicate to any per- son the state of their deliberations, or the verdict agreed upon. [Amendment approved March 10, 1880; Amendments 1880, p. 10. In effect March 10, 1880.] Three-fourths, agreement of, amendment, 1880: See Const. Cal., art. 1, sec. 7. § 614. After the jury have retired for delibera- tion, if there be a disagreement between them as Code Civ. Proc— 21. ?§ 615-617 TRIAL, BY JURY. 242 to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. Holidays, Sundays, etc.— Instructions may be given to juries deliberating on: Sec. 134, subd. 1. On nonjudicial days: Sec. 134, subd. 1. § 615. If, after the impaneling of the jury, and before verdict, a juror become sick, so as to be un- able to perform his duty, the court may order him to be discharged. In that case the trial may pro- ceed with the other jurors, or another juror may be sworn and the trial begin anew; or the jury may be discharged and a new jury then or after- ward impaneled. § 616. In all cases where the jury are dis- charged, or prevented from giving a verdict, by reason of accident or other cause, during the pro- gress of the trial, or after the cause is submit- ted to them, the action may be again tried Im- mediately, or at a future time, as the court may direct. § 617. While the jury are absent the court may adjourn from time to time, in respect to other business; but it is nevertheless open for every pur- pose connected with the cause submitted to the jury until a verdict is rendered or the jury dis- charged. The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess or adjourn- ment for the day. [Amendment approved March ]0, 1880; Amendments 1880, p. 10. In effect March 10, 1880.] 243 TRIAL BY JURY. §§ 618, 624 § 618. When the jury, or three-fourths of them, have agreed upon a verdict, they must be conduct- ed into court, their names called by the clerk, and the verdict rendered by their foreman; the verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the in- quiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict; if upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disa- greement be expressed, the verdict is complete and the jury discharged from the case. [Amendment approved March 10, 1880; Amendments 1880, p. 10. In effect March 10, 1880.] Verdict received, on nonjudicial day: Sec. 134. § 619. When the verdict is announced, if it is informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. ARTICLE III. THE VERDICT. § 624. General and special verdicts defined. § 625. When a general or special verdict may be rendered. § 626. Verdict in actions for recovery of money or on es- tablishing counterclaim. § 627. Verdict in actions for the recovery of specific per- sonal property. § 628. Entry of verdict. § 624. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a spec- ial verdict is that by which the jury find the facts §§ 625, 626 TRIAL BY JURY. 241 only, leaving the judgment to the court. The spec- ial verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented, as that nothing shall remain to the court but to draw from them conclusions of law. Special verdict: Sec. 625. Ejectment.— Where plaintiff's right terminated pending action: Sec. 740. Improvements, claim for: Sec. 741. Misconduct of jury: Sec. 657, subd. 2. Several, judgment for or against, some of: Sees. 578, 579. Intendments in favor of verdict: Sec. 53, note; sec. 1963, subd. 18. Amendments: Sec. 473. § 625. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing, upon all, or any of the issues, and in all cases may in- struct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding there- on. The special verdict or finding must be filed with the clerlv and entered upon the minutes. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the coiu-t must give judgment accord- ingly. Submitting special issues in equity causes: Sec. 592. § 626. When a verdict is found for the plaintifif. in an action for the recovery of money, or for the 245 TRIAL BY JURY. §§ 627, 62S defeudaut when a couuterclaim for the recovery of money is established, exceeding the amount of the phiintitl's chiim as established, the jury must also hud the amount of the recovery. § 627. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff", or, if being- in favor of the defendant, they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may, at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing par- ty has sustained by reason of the taking or deten- tion of such property. [Amendment approved March 24, 1874; Amendments 1873-4, p. 311. In effect July 1, 1874.] Jury must find, etc.: See post, sec. GG7. and com- pare with sec. 509. § 628. Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length, and where a special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consid- eration, the order thus reserving it. §§ 631-633 TRIAL BY COURT. 246 CIIAPTEK V. TRIAL BY THE COURT. § 631. When and how trial by jury may be waived. § 632. Upon trial by court, decision to be in writing and filed within twenty days. § 633. Facts found and conclusions of law must be sep- arately stated. Judgment on. § 634. Findings may be waived, how. § 335. Findings, how prepared. § 636. Proceedings after determination of issue of law. § 631. Trial by jury may be waived by the sev- eral parties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court in other actions, in manner following: 1. By failing to appear at the trial; 2. By written consent, in person or by attorney, filed with the clerk; 3. By oral consent, in open court, entered in the minutes. [Amendment approved March 24, 1874; Amendments 1873-4, p. 311. In effect July 1, 1874.] Waiver of jury trial: See Const. Cal., art. 1, sec. 7; court disregarding, sees. 309, 592. Submitting special issues to a jury: See sec. 592, ante. § 632. Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerlv within thirty days after the cause is submitted for decision, [Amendment approved March 24, 1874; Amendments 1873-4, p. 312. In effect July 1, 1874.] § 633. In giving the decision, the facts found and the conclusions of law must be separately 247 TRIAL BY COURT., ^ » ' S§ 634-636 Stated. Judgment upon the decision mus^t be en- tered accordingly. § 634. Findings of fact may be waived by the several parties to an issue of fact: 1. By failing to appear at the trial; 2. By consent in writing, filed with the clerk; 3. By oral consent in open court, entered in the minutes. r, .^ i § 635. Repealed. [Amendments 1875-6, p. 91. In effect April 3, 1876.] § 636. On a judgment for the plaintiff upon an issue of law, he may proceed in the manner pre- scribed by the first two subdivisions of section five hundred and eighty-five, upon the failure of the defendant to answer. If judgment be for the de- fendant upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a refer- ence may be ordered as in that section provided. Issue of law: Sec. 589; when a bar, see sec. 1908. Reference: Sec. 638 et seq. Leave to answer, after defendant's demurrer overruled: Sec. 472. Default, judgment by: Sec. 585. .Judgment, generally: Sec. 664. §§ 638, 039 TRIALS BY REFEREES. 248 CHAPTEIl VI. OF REFERENCES AND TRIALS BY REFEREES. § 638. Reference ordered upon agreement of parties, in what cases. § 639. Reference ordered on motion, in what cases. § 640. Number of referees, qualifications, etc. § 641. Either party may object. Grounds of objection. § 642. Objections, how disposed of. § 643. Referees to report within ten days. Effect of. How excepted to, etc. § 644. Effect of referees' finding. § 645. How excepted to, etc. § 638. A reference may be ordered upon the agreement of the parties filed with the clerlv or entered in the minutes: 1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon; 2. To ascertain a fact necessary to enable the court to determine an action or proceeding. Reference in general, court commissioners: Sec. 259, subd. 2; fees for, sec. 1028; private trial, sec. 125; compulsory, see next section. Referees, number, etc., sec. (MO; objections to, sees. 041, 042; report of, sees. 043-45. Trial by referee: Sec. 1053. § 639. AYhen the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. AVhen the trial of an issue of fact requires the examination of a long account on either side, in which case the referees may be directed to hear and decide tlie whole issue, or report upon any spe- cific question of fact involved therein; 2. When the taking of an account is necessary 249 TRIALS BY REFEREES. §§ 640. 641 for the information of the court before judgment, or for carrying a judgment or order into effect; 3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action; 4. When it is necessary for the information of the court in a special proceeding. lieference on proceedings supplementary to exe- cution: Sec. 714, post. § 640. A reference may be ordered to any per- son or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge must appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable, and against whom there is no legal objection, or the reference may be made to a court commissioner of the county where the cause is pending. Reference ordered: See sees. 638, 639. Three referees, two may act: Sec. 1053. Court commissioner: Sec. 259, subd. 2. CA § 641. Either party may object to the appoint- Yuent of any person as referee, on one or more of tlie following grounds: 1. A want of any of the qualifications pre- scribed by statute to render a person competent as a juror; 2. Consanguinity, or affinity, within the third degree, to either party, or to any judge of the court, in which the appointment shall be made; 3. Standing in the relation of guardian and wjird, master and servant, employer and clerk, or l)rincipal and agent, to either party; or, being a member of the family of either party; or a partner in business with either party; or being security on any bond or obligation for either party; 4. Having served as a juror or been a witness §§ 642-645 TRIALS BY REFEREES. 250 on any trial between the same parties for the same cause of action; 5. Interest on the part of such person in the event of the action, or in the main question in- volved in the action; G. Having formed or expressed an unqualified opinion or belief as to the merits of the action; 7. The existence of a state of mind in such per- son evincing enmity against or bias to either party. [Approved March 3, 1897; Stats. 1897, c. 69.] § 642. The objections fallen to the appointment of any person as referee must be heard and dis- posed of by the court. Affidavits may be read and witnesses examined as to such objections. Objections: See sec. 641. § 643. The referees or commissioner must re- port their findings in writing to the court, within twenty days after the testimony is closed, and the facts found and conclusions of law must be sepa- rately stated therein. Referees: See sees. 640-642. Reference: Sees. 638, 639. Commissioner: Sec. 2.59, subd, 2. Referees, where three, all must meet, but two can act: Sec. 1053. Enforcing order: Sec. 128, subd. 2. Findings, effect of: Sec. 645. § 644. The finding of the referee or commis- sioner upon the whole issue must stand as the find- ing of the court, and upon filing of the finding with the clerlv of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court. § 645. The finding of the referee or commis- sioner may be excepted to and reviewed in Jilie 251 TRIALS IN GENERAL. § 646 manner as if made by the court. When the refer- ence is to report the facts, the finding reported has the effect of a special verdict. Exceptions, generally: Sees. G46 et seq.; new trials, sec. G56 et seq.; court commissioner's report, time and mode of excepting to, sec. 259, subd. 2. CHAPTER VII. PROVISIONS RELATING TO TRIALS IN GENERAL. Article I. Exceptions. II. New Trials. ARTICLE I. EXCEPTIONS. § 646. Exceptions may be taken. Time when taken, etc. § 647. What deemed excepted to. § 648. Exception, form of. § 649. Exceptions signed by judge and filed with clerk. § 650. Exceptions not presented at time of ruling. Notice to adverse party, how settled upon, etc. § 651. Exceptions after judgment, etc. § 652. When exception is refused, application to Supreme Court to prove the same, etc. § 653. Proceedings when judge ceases to hold oflBce. § 646. An exception is an objection upon a mat- ter of law to a decision made, either before or after judgment, by a court, tribunal, judge, or oth- er judicial officer, in an action or proceeding. The exception must be talveu at the time the decision is made, except as provided in sec. G47. [Amend- ment approved April 3, 187G; Amendments 1875-6, p. 91. In effect, June 1, 1876.] Matters deemed excepted to: Sec. 647. Absence of party, as affecting: Sec. 647. Amendments to: Sec. 650. 8§ 647-649 TRIALS IN GENERAL. 252 § 647. The verdict of the jury, the final decision in an action or proceeding-, an interlocutory order or decision, finally determining the rights of the parties, or some of them ; an order or decision from which an appeal may be taken; an order sustain- ing or overruling a demurrer, allowing or refus- ing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a con- tinuance; an order made upon ex parte applica- tion, and an order or decision made in the absence of a party, are deemed to have been excepted to. [Amendment approved April 3, 1876; Amendments 1875-6, p. 91. In effect June 1, 1876.] § 648. No particular form of exception is re- quired, but when the exception is to the verdict or decision, upon the ground of the insufliciency of the evidence to justify it, the objection must spe- cify the particulars in which such evidence is al- leged to be insutticient. The objection must be stated with so much of the evidence or other mat- ter as is necessary to explain it, and no more. Only tlie substance of the reporter's notes of the evi- dence shall be stated. Documents on file in the action or proceeding may be copied, or the sub- stance thereof stated, or a reference thereto, suflS- cient to identify them, may be made. [Amend- ment approved April 3, 1876; Amendments 187r>-6, 01. In effect June 1, 1876.] § 649. A bill containing the exception to any decision may be presented to the court or judge for settlement, at the time the decision is made, and after having been settled, shall be signed by tlie judge and filed with the clerk. When the decis- ion excepted to is made by a tribunal other than n court, or by a judicial officer, the bill of excep- tions shall be presented to, and settled and signed 'J53 TRIALS IN GENERAL. § 650 by sueli tribimal or officer. [Ameudment approved ipril 3. 1876; Amendments 1875-6, 91. In effect ./line 1, 1876.] Refusal to settle: See sec. 682, infra. ^ 650. AYlien a party desires to have exceptions taken at a trial settled in a bill of exceptions, lie may, within ten days after the entry of judgment, if the action were tried with a jury, or after re- ceiving notice of the entry of judgment, if the ac- tion were tried without a jury, or such further time as the court in which the action is pending, or a judge thereof, may allow, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party re- lies. Within ten days after such service the ad- verse party may propose amendments thereto, and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill, to the judge who tried or heard the case, upon five days' notice t6 the adverse party, or be delivered to the Clerk of the Court for the Judge. When received by the Clerk he must immediately deliver them to the Judge, if he be in the county; if he be ab- sent from the county, and either party desire the papers to be forwarded to the Judge, the Clerk must, upou notice in writing of such party, imme- diately forward them by mail, or other safe chan- nel; if not thus forwarded, the Clerk must de- liver them to the Judge immediately after his re- turn to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immedi- ately notify the parties of such designation. At the time designated, the judge must settle the bill. Co90 THE EXECUTION. 280 or hoisting gear; and also bis mining claim, actu- ally worked by him, not exceeding in value the sum of one thousand dollars; <;. Two horses, two oxen, or two mules, and their harness, and one cart or wagon, one dray or truck, one coupe, one hack or carriage, for one or two horses, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his liv- ing, and one horse, with vehicle and harness or other equipments, used by a physician, surgeon, constable, or minister of the gospel, in the legiti- mate practice of his profession or business, with food for such oxen, horses, or mules for one month; 7. One fishing boat and net, not exceeding the total value of tive hundred dollars, the property of any fisherman, by the lawful use of which he earns a livelihood; 8. Poultry not exceeding in value twenty-five dollars; 9. Seamen and sea-going fishermen's wages and earnings, not exceeding one hundred dollars; 10. The earnings of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of execution or attachment, when it appears, by the debtor's affi- davit or otherwise, that such earnings are neces- sary for the use of his family, residing in this State, supported in whole or in part by his labor; but Avhere debts are incurred by any such per- son, or his wife or family, for the common neces- saries of life, or have been incurred at a time when the debtor had no family, residing in this State, supported in Avliole or in imrt by his labor, the one- half of such earnings above mentioned are never- tlieless subject to execution, garnishment, or at- tncliment to satisfy debts so incurred: 281 THE EXECUTION. § G.!0 11. Theshares held by a member of a homestead association duly incorporated, not exceeding in value one thousand dollars, if the person holding the shares is not the owner of a homestead under the laws of this State. All the nautical instru- ments and wearing apparel of any master, officer, or seaman of any steamer or other vessel; 12. All moneys, benefits, privileges, or immuni- ties, accruing or in any manner growing out of any life insurance on the life of the debtor, if the annual premiums paid do not exceed five hundred dollars ; 13. All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, imple- ments, and apparatus thereunto appertaining, and all furniture and uniforms of any fire company or department organized under any laws of this State; 14. All arms, uniforms, and accoutrements re- quired by law to be kept by any person, and also one gun, to be selected by the debtor; 15. All courthouses, jails, public offices, and buildings, lots, grounds, and personal property, the fixtures, furniture, books, papers, and appur- tenances belonging and pertaining to the jail and public offices belonging to any county, or to any city and county of this State, and all cemeteries, public squares, parks, and places, public build- ing, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and apper- taining, owned, or held by any town or incorpo- rated city, or dedicated by such town or city to health, ornament, or public use, or for the use of any fire or military company organized under the laws of this State; 10. All material purchased in good faith for use in the construction, alteration, or repair of any §§ 691, 692 THE EXECUTION. 282 building, miuiug claim, or other improvement, as long- as in good faith the same is about to be ap- plied to the construction, alteration or repair of such building, mining claim, or other improve- ment; No article, however, or species of property men- tioned in this section is exempt from execution is- sued upon a judgment recovered for its price, or upon a judgment of foreclosure of a mortgage thereon. [Approved March 27, 1897; Stats. 1897, c. 120; Also amended in 1887; Stats. 1887, 99.] § 691. The Sheriff must execute the writ against the property of the judgment debtor, by levying on a sufficient amount of property, if there be sufficient, collecting or selling the things in ac- tion, and selling the other property, and paying to the plaintiff or his attorney so much of the pro- ceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more property of the judg- ment debtor than is sufficient to satisfy the judg- ment and accruing costs within the view of the Sheriff, he must levy only on such part of the property as the judgment debtor may Indicate, if the property indicated be amply sufficient to sat- isfy the judgment and costs. [Amendment ap- proved March 24, 1874; Amendments 1873-4, 321. In effect July 1, 1874.] Sheriff must execute writ: Polit. Code, sec. 4180. Selling property: Sec. G94 et seq. Paying over proceeds: Polit. Code, sec. 4181; la- bor claims: Sec. 1206. Debts, payment of to Sheriff: Sees. 544, 71G. § 692. Before the sale of property on execution, notice thereof must be given as follows: 283 THE EXECUTION. § 693 1. In case of perishable property, by posting written notice of the time and place of sale in three public places of the township or city where the sale is to tal^e place, for such time as may be reasonable, considering the character and condi- tion of the property; 2. In case of other personal property, by posting a similar notice in three public places in the town- ship or city where the sale is to tal^e place, for not less than five nor more than ten days; 3. In case of real property, by posting a similar notice, particularly describing the property, for twenty days, in three public places of the town- ship or city where the property is situated, and also where the property is to be sold, and pub- lishing a copy thereof, once a weelv for the same period, in some newspaper published in the county, if there be one; 4. When the judgment under which the prop- erty is to be sold is made payable in a specified kind of money or currency, the several notices re- quired by this section must state the kind of money or currency in which bids may be made at such sale, which must be the same as that speci- fied in the judgment. [Amendment approved March 24, 1874; Amendments 1873-4, 322. In ef- fect July 1, 1874.] Sale of vessels, notice of: Sees. 824, 827. Sale without notice: See sec. 693. Perishable property, sale under attachment: Sec. 547. Specified kind of money: See sec. 682; subd. 4. § 693. An officer selling without the notice pre- scribed by the last section forfeits five hundred dollars to the aggrieved party, in addition to his actual damages; and a person willfully taking down or defacing the notice posted, if done before §§ 694, G95 THE EXECUTION. 284 the sale or the satisfaction of the judgment (if the judgment be satisfied before sale), forfeits five hundred dollars. § 694. All sales of property under execution must be made at auction to the highest bidder, be- t^Yeen the hours of nine in the morning and five in the afternoon. After suflicient property has been sold to satisfy the execution, no more can be sold. Neither the ofiicer holding the execution nor his deputy can become a purchaser or be inter- ested in any purchase at such sale. When the sale is of personal property, capable of manual deliv- ery, it must be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price; and when the sale is of real property, consisting of several linown lots or parcels, they must be sold separately; or, when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thu&; sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the Sheriff must follow such directions. Auctioneer, Sheriff as: Polit. Code, sec. 3291. § 695. If a purchaser refuse to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property at any time to the highest bidder, and if any loss be occasioned thereby, the officer may re- cover the amount of such loss, with costs, from the bidder so refusing, in any court of competent jurisdiction. [Amendment approved March 24, 1874; Amendments 1873-4, 323. In effect July 1, 1874.] 285 THE EXECUTION. §§ 696-700 vj 696. When a purchaser refuses to pay, the officer may, in his discretion, thereafter, reject any subsequent bid of such person. [Amendment ap- proved March 24, 1874; Amendments 1873-4, 323. In effect July 1, 1874.] § 697. The two preceding sections must not be construed to mal^e the officer liable for any more than the amount bid by the second or subsequent purchaser, and the amount collected from the pur- chaser refusing to pay. § 698. When the purcliaser of any personal property, capable of manual delivery, pays the purchase money, the officer malving the sale must deliver to the purcliaser the property, and if de- sired, execute and deliver to him a certificate of the sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied. Certificate of sale: See next section. S 699. AVhen the purchaser of any personal property, not capable of manual delivery, pays the purchase money, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the right which the debtor had in such prop- erty on the day the execution or attachment was levied. Attachment: Sec. 542. § 700. Upon a sale of real property, the pur- i ^ ant so appear and answer, the plaintiff will apply 3 /§ to the court for the relief demanded. If the plain- ^ /^ tiff has appeared by attorney, the name of the at- ^ >vtorney must be indorsed upon the summons. 347 COMMENCING ACTIONS. §§ 845-848 L Amendment approved March 2G, 1880; Amend- ments, 1880, 19. In effect March 26, 1880.] Contents of summons— compare sec. 407. § 845. The time specified in the summons for the appearance of the defendant must be as fol- lows: 1. If an order of arrest be indorsed upon the summons, forthwith; 2. In all other cases, the summons must con- tain a direction that the defendant must appear and answer the complaint within five days, if the summons be served in the city and county, town- ship, or city, in which the action is brought; with- in ten days, if ^served out of the township or city; but in the county in which the action is brought, and within twenty days, if served elsewhere. [Amendment approved March 20, 1880; Amend- ments 1880, 19. In effect March 26, 1880.] § 846. If the summons is returned without be- ing served upon any or all of the defendants, the justice, upon the demand of the plaintiff, may issue an alias summons in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed ninety days from its date. Alias summons, generally: Compare sec. 408. § 847. The justice may, within a year from the date of the filing of the complaint, issue as many alias summons ps may be demanded by the plain- tiff. Alias summons: See sec. 408. § 848. The summons cannot be served out of the county of the Justice before whom the action is brought, except when the action is brought upon § 849 COMMENCING ACTIONS. 348 a joint contract or obligation of two oi* more per- sons, who reside in different counties and tlie sum- mons has been served upon the defendant, resi- dent of the county, in which case the summons may be served upon the otlier defendant out of the county; and except, also, when an action is brought against a party who has contracted to per- form an obligation at a particular place, and re- sides in a different county, in which case sum- mons may be served in the county where he re- sides; and except, also, where an action is brought for injury to person or property, and the defend- ant resides in a different county, in which case summons may be served in the county where the defendant resides. [Amendment approved April 3, 1876; Amendments 1875-6, 98.] Process of justices' courts— extent of: Sees. 94, 106. § 849. The summons may be served by a Sher- iff or constable of any of the counties of this State; provided, that when a summons issued by a jus- tice of the peace is to be served out of the county in which it was issued, the summons shall have attached to it a certificate, vmder seal, by the County Clerk of such county, to the effect that the person issuing the same was an acting justice of the peace at the date of the summons, or the summons may be served by any male resident, over the age of eighteen years, not a party to tlie suit, within the county where the action is brought and must be served and returned, as provided in title five, part two, of this Code, or it may be served by publication; and sections four hundred and thirteen and four hundred and twelve, so far as they relate to the publication of summons, are made .applicable to justices' courts, the word "jus- tice" being substituted for the word "judge" wher- rvor the latter word occurs. [Amendment ap- 349 PLEADINGS. §§ 850, 851 [n-oved .Alai-cli 10, 18D1; Stats. 1801, 51. In effect iiiULuxl lately.] Maimer of service and return of summons in jus- tice court in San Francisco: See post, Appendix, p. 858. Publication, service by: Sees. 412, 413. § 850. When all the parties served with pro- cess shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendants who have appeared, thereof. The par- ties are entitled to one hour in which to appear after the time fixed in the said notice, but are not bound to remain longer than that time, unless both parties have appeared, and the justice, being pres- ent, is engaged in the trial of another cause. [Amendment approved April 3, 1876; Amend- ments 18T5-(3, 98. In effect sixty days after pas- sage.] Time of trial: Sec. 873 et seq. CHAPTER III. PLEADINGS IN JUSTICES' COURTS. § 851. Form of pleadings. § 852. Pleadings in Justices' Courts. § 853. Complaint defined. § 854. When demurrer to complaint may be put in. § 855. Answer. § 856. If the defendant omits to set up counterclaim. § 857. When plaintiff may demur to answer. § 8-58. Proceedings on demurrer. § 859. Amendment of pleadings. § 860. Answer or demurrer to amend pleadings. § 851. Pleadings in justices' courts: 1. Are not required to be in any particular form, but must be such as to enable a person of com- mon understanding to know what is intended; Code Civ. Proc— 30. 1852-855 PLEADINGS. ^."^ 3^0 2. May, except the complaint, be oral oi* in writ- ing; 3. Must not be verified, unless otherwise pro- vided in this title; 4. If in writing, must be filed witli the justice; 5. If oral, an entry of their substance must be made in tlie docliet. Subdivision 3— verified answer: Sec. 112, subd. 2, sec. 838. § 852. The pleadings are: 1. The complaint by the plaintiff; 2. The demurrer to the complaint; 3. The answer by the defendant; 4. The demurrer to the answer. Abbreviations and numerals: Sec. 186. Trial: See sees. 873 et seq. List of pleadings— generally: Sec. 422. § 853. The complaint in justices' courts is a concise statement, in writing, of the facts consti- tuting the plaintiff's cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based. Complaint— generally: Sec. 426. § 854. The defendant may, at any time before answering, demur to the complaint. Demurrer, generally: Sec. 430. § 855. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counter- claim, upon which an action might be brought by the defendant against the plaintiff in a justices* court. Answer, generally: Sec. 437. 351 r:, PLEADINGS. 2§ 856-8" § 856. If the defendant omit to set up a coun- ter-claim in the cases mentioned in the last sec- tion, neither he nor his assignee can afterward maintain an action against the plaintiff tlierefor. Counter-claim waived— generally : Sec. 439. § 857. When the answer contains new matter in avoidance, or constituting a defense or a coun- ter-claim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such demurrer. Demurrer to answer — generally: Sec. 443. § 858. The proceedings on demurrer are as fol- lows: 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the court allows, amend his com- plaint; 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith; 3. If the demurrer to an answer is sustained, the defendant may amend his answer within such time, not exceeding two days, as the court may allow; 4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed. Proceedings on demurrer— compare sees. 472, 636. § 859. Either party may, at any time before the conclusion of the trial, amend any pleading, but if the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an ad- journment must be grantf^d. The court may also, in its discretion, when an adjournment will by the 860 PLEADINGS 852 amendment be rendered necessary, require, as a condition to the alloAvance of such amendment, made after issue, joined, tlie payment of costs to the adverse party, to be fixed by the court, not exceeding twenty dollars. The court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistalve. inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days af- ter the entry of the judgment and upon an affida- vit shoAving good cause therefor. Amendment, generally: Sec. 473; adjournment for: Sec. 874, subd. 2. § 860. When a pleading is amended, the ad- verse party may answer or demur to it Avithin such time, not exceeding two days, as the court may allow. 'IMme to plead— compare sec. 432. 353 PROVISIONAL REMEDIES. § 861 CHAPTER ly. PROVISIONAL REMEDIES IN JUSTICES' COURTS. Article I. Arrest and Bail. II. Attachment. III. Claim and Delivery of Personal Property. ARTICLE 1. ARREST AND BAIL. § 861. Order of arrest and arrest of defendant. § 862. Affidavit and undertaking for order of arrest. § 833. A defendant arrested must be taken before the jus- tice immediately. § 864. The officer must give notice to the plaintiff of ar- rest. § 865. The officer must detain the defendant. § 861. An order to. arrest the defendant may- be indorsed on a summons issued by tlie justice, and the defendant may be arrested thereon by the Sheriff or Constable, at the time of serving the summons and brought before the justice, and tliere detained until duly discharged, in the fol- lowing cases: 1. In an action for the recovery of money or damages, on a cause of action arising upon con- tract, express or implied, when the defendant is about to depart from the State, with intent to de- fraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently mis- applied, or converted to his own use by one who received it in a liduciary capacity; 3. When the defendant has been guilty of a fraud in contracting the debt or incurring the ob- ligation for wliich the action is brought; §§ 832, 863 PROVISIONAL REMEDIES. 354 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female can be arrested in any action. Arrest and bail: Sees. 478 et seq. Mesne and final process of justices' courts may be issued to any part of the county: Sec. 116. § 862. Before an order for an arrest can be made, the party applying must prove to the sat- isfaction of the justice, by the affidavit of himself or some other person, the facts upon which the application is founded. The plaintitf must also execute and deliver to the justice a written un- dertakmg in the sum of three hundred dollars, with sufficient sureties, to the effect that the plain- tiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause,. not exceeding the sum specified in the undertaliing. [Amendment ap- proved March 24, 1874; Amendments 1873-4, p. 334. In effect July 1, 1874.] Affidavit and undertaliing for arrest: Compare sees. 481, 482. Qualification of sureties: Sec. 1057. § 863. The defendant, immediately, upon being arrested, must be fallen to the office of the jus- tice who made the order, and if he is absent or unable to try the action, or if it appears to him by the affidavit of defendant, that he is a ma- terial witness in the action, the officer must im- mediately talve the defendant before another jus- tice of the township or city, if there is another, and if not, then before the justice of an adjoin- ing township, who must talce jurisdiction of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. 355 PROVISIONAL REMEDIES. §§ 864, 867 § 864. The officer making the arrest must im- mediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. § 865. The officer making the arrest must keep the defendant in custody until he is discharged by order of the justice. ARTICLE II. ATTACHMENT. § 866. Writ of attachment shall issue upon affidavit. § 867. Undertaking on attachment must be required. § 868. Writ of attachment, substance of. Officer may take an undertaking instead of levying. I 869. Certain provisions apply to all attachments in Jus- tices' Courts. § 866. A writ to attach the property of the de- fendant must be issued by the justice at the time of, or after issuing summons and before answer, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section five hundred and thirty-eight of this Code. Attachment, generally: Sec. 537 et seq. Mense and final process of justices' courts may be issued to any part of the county: Sec. 116. § 867. Before issuing the writ, the justice must require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty, nor more than three hundred dollars, to the effect that if the defendant recover judgment, the plaintiff* will pay all costs that may be awarded to the defendant, and all §§ 868, 869 PROVISIONAL REMEDIES. 356 damages wliieli he may sustain by reason of the attachment, not exceeding the sum specitied in the undertaliing. Undertaking on attacliment, generally: Sec. 539. § 868. The writ may be directed to the sheriff or any constable of the county, or the sheriff of any otJier county, and must require him to attach and safely keep all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, un- less the defendant give him security, by the un- dertaking of two sutiicient sureties, in an amount sufficient to satisfy such demand, besides costs; in Avhich case, to take such undertaking. Contents of writ: Compare sec. 540. § 869. The sections of this Code from section five himdred and forty-one to section five hun- dred and fifty-nine, both inclusive, are applicable to attachments issued in justices' courts, the word "constable" being substituted for the word "sher- iff," wlienever the writ is directed to a constable, and the word "justice" being substituted for the word "judge." §§ 541-559. Sec. 541, property attachable. Sees. 542, 543, property, how sheriff attaches. Sec. 544, garnishee's liability. Sec. 545, examination of de- fendant and garnishee. Sec. 546, inventory, re- turn, etc. Sec. 547, perishables. Sec. 548, other property, immediate sale of. Sec. 549, claim by third person. Sec. 550, realization of attached pro])erty after judgment for plaintiff'. Sec. 551, collecting balance by sheriff. Sec. 552, proceedings if execution unsatisfied. Sec. 553, effect of judg- ment for defendant. Sees. 554-558, discharge of attachment. Sec. 559, sheriff's return, lieleasing attachment. 357 PROVISIONAL REMEDIES. § 870 ARTICLE 111. TLAIM AND DELIVERY OF PERSONAL PROPERTY. te£S2 $ 70. How claim and delivery enforced. § 870. Ill an action to recover poysession of per- sonal property, the plaintiff may, at the time of issniug summons, or at any time thereafter before answer, claim the delivery of such property to liim; and tlie sections of this Code, from section five hundred and ten to section live hundred and twenty-one. both inclusive, are applicable to such claim when made in justices' courts, the powers therein given and duties imposed on sheriffs being extended to constables, and the word "Justice" substituted for "judge." Claim and delivery: Sees. 509 et seq. §§ 510-521. Sec. 510, affidavit for claim and de- livery. Sec. 511, requisition for sheriff to take property claimed. Sec. 512, undertalving* by plain- tiff. Sec. 518, exception to sureties by defendant. Sec. 514, defendant claiming redelivery. Sec. 515, justification of defendant's sureties. Sec. 516, qualifications of sureties. Sec. 517, breaking open building, etc. Sec. 518, property, how kept. Sec. 511), claim by third person. Sec. 520, sheriff to file notice, affidavit, etc. Sec. 521 (repealed March 24; took effect .Tuly 1, 1874). §§ 871, 872 JUDGMENT BY DEFAULT. 358 CHAPTER V. JUDGMENT BY DEFAULT IN JUSTICES' COURTS, § 871. Judgment when defendant fails to appear. § 872. Judgment against defendant on demurrer. § 871. If the defendant fail to appear, and to ans^ver or demur within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had: 1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of plaintiff for the sum specified in the summons: 2. In all other actions the court must hear the evidence offered by the plaintitt, and must render judgment in his favor for such sum (not exceed- ing the amount stated in the summons) as appears by such evidence to be just. [Amendment ap- proved April 17, 1880; Amendments 1880, p. 113. In effect xVpril 10, 1880.] Default judgment, generally: Sec. 585. § 872. In the following cases the same pro- ceedings must be had, and judgment must be ren- dered in like manner, as if the defendant had fail- ed to appear and answer or demur: 1. If the complaint has been amended, and the defendant fails to answer it as amended, within the time allowed by the court: 2. If the demurrer to the complaint is overruled, and the defendant fails to answer at once; 3. If the demurrer to the answer is sustained, and the defendant fails to amend the answer within the time allowed by the court. Compare sec, 858. 359 "'. ^ixIAL AND POSTPONEMENTS. §§ 873-875 CHAPTER VI. TIME OF TRIAL AND POSTPONEMENTS IN JUSTICES' COURTS. 5 873. Time when trial must be commenced. I 874. When court may, of its own motion, postpone trial. I 875. Postponement by consent. § 876. Postponement upon application of a party. J 877. No continuance for more than ten days to be grant- ed, unless upon filing of undertaking. § 873. Unless postponed as provided in this chapter, or unless transferred to another court, the trial of the action must commence at the expira- tion of one hour from the time specified in the no- tice mentioned in section 850, and the trial must be continued without adjournment for more than twenty-four hours at any one time, until all the issues therein are disposed of. [Amendment ap- proved April 3, 1876; Amendments 1875-6, p. 98. In effect sixty days after passage.] § 874. The court may, of its own motion, post- pone the trial: 1. For not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amend- ment of the pleadings, or the allowance of time to make such amendment or to plead, a postpone- ment is rendered necessary; 3. For not exceeding three days, if the trial is upon issues of fact, and a jury has been de- manded. xVmendment of pleadings, etc.: See sees. 858, 859. § 875. The court may, by consent of the parties, given in Avriting or in open court, postpone the trial to a time agreed upon by the parties. § 876 TRIAL AND POSTPONEMENTS. 360 § 876. The trial may be postponed upon the application of either party, for a period not ex- ceeding four months: 1. The party mals;iug the application must prove, by his o^Yn oath or otherwise, that he can- not, for want of material testimony, Avhich he ex- pects to procure, safely proceed to trial, and must show in Avhat respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so; 2. If the application is on the part of the plain- tiff, and the defendant is under arrest, a postpone- ment for more than three liours discharges the de- fendant from custody; but the action may pro- ceed, notwithstanding, and the defendant is sub- ject to arrest on execution, in the same manner as if he had not been discharged; 3. If the application is on the part of a defend- ant under arrest, before it can be granted he must execute an uudertaliing, with two or more suflicient sureties, to be approved by, and in a sum to be fixed by, the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertalving. On filing the undertalving speci- fied in this subdivision, the justice must order the defendant to be discharged from custody; 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then talcen by depo- sition before the justice, and that the testimony so talxcn may be read on the trial, witli the same effect, and subject to the same objections, as if the witness was produced. 361 TRIALS IN JUSTICES' COURTS. §§ 877, 878 But ilie court mu3' require the party making tlie applieatiou to state, upou aliidavit, the evideuee wliicli lie expects to obtain; and if the adverse partj' tliereupoii admit tliat sucli evidence Avould be siiven, and that it be considered as actually given on the trial, or offered and overruled as im- proper, the trial must not be postponed. Postponement, generally: Sec. 595; costs of, sec. 1020. Arrest and bail: Sec. 478 et seq. § 877. No adjournment nmst, unless hy con- sent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the justice, with two sureties, to be approved by the justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum spec- ified in the undertaking. CHAPTER VTI. TRIALS IN JUSTICES' COURTS. § 878. Issue defined, and the different kinds. § 879. Issue of law, how raised. § 880. Issue of fact, how raised. § 881. Issue of law, how tried. § 882. Issue of fact, how tried. § 883. Jury, how waived. § 884. Either party failing to appear, trial may proceed at request of other party. § 885. Challenges to jurors. § 886. Manner of pleading a written instrument. § 887. If a copy of an Instrument be filed, signatures will be deemed admitted, unless denied under oath. § 878. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the Code Civ. Proc.-.31. §§ 879-883 TRIALS IN JUSTICES' COURTS. 362 one party, and is controverted by tbe other. They are of two kinds: 1. Of law; and, 2. Of fact. Compare this and the next two sections with sections 588-590. § 879. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Same as sec. 589. § 880. An issue of fact arises: 1. Upon a material allegation in the complaint controverted by the answer; and, 2. Upon new matter in the answer, except an is- sue of law is joined thereon. Same as sec. 590. § 881. An issue of law must be tried by the court. Compare sec. 591. § 882. An issue of fact must be tried by a jury, unless a jury is waived, in which case it must be tried by the court. Compare sec. 592. § 883. A jury may be waived: 1. By consent of parties, entered in the docket; 2. By a failure of either party to demand a jury before the commencement of the trial of anj issue of fact; a. By the failure of either party to appear at the time fixed for the trial of an issue of fact. Waiter of jury: Compare sec. G31. 363 TRIALS IN JUSTICES' COURTS. §§ 884-887 § 884. If either party fails to appear at the time tixed for trial, the trial may proceed at the request of the adverse party. Compare sec. 594. § 885. The challenges are either peremptory or for cause. Each party is entitled to three per- emptory challenges. Either party may challenge for cause on any grounds set forth in section six hundred and two. Challenges for cause must be tried by the justice. Challenges: Compare sees. 601, 602. § 886. When the cause of action or counter- claim arises upon an account or instrument for the payment of money only, the court, at any time be- fore the trial, may, by an order under his hand, require the original to be exhibited to the inspec- tion of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order; or, if such order is not obeyed, the account or in- strument cannot be given in evidence. Order for inspection: Sec. 1000. § 887. If the plaintiff annex to his complaint, or file with the justice at the time of issuing the summons, the original or a copy of the promissory note, bill of exchange, or other written obligation for the payment of money, upon which the action is brought, the defendant is deemed to admit the genuineness of the signatures of the makers, in- dorsers, or assignors thereof, unless he specifically denies the same in his answer, and verify the answer by his oath. Compare sees. 447, 853. §§ 889, 890 JUDGMENTS. 364 CHAPTER VIII. JUDGMENTS (OTHER THAN BY DEFAULT) IN JUS- TICES' COURTS. § 889. Judgment by confession. § 890. Judgment of dismissal entered in certain cases with- out prejudice. § 891. Judgment upon verdict. § 892. Judgment after trial by the court. § 893. Judgment when the defendant is subject to arrest. § 894. If the sum found due exceeds the jurisdiction of the justice, the excess may be remitted. § 895. Offer to compromise before trial. § 896. Costs may be included in the judgment. § 897. Abstract of judgment. § 898. Abstract may be filed and docketed in county clerk's ofiice. § 899. Effect of docketing. § 900. Judgment not a lien unless abstract is recorded in the recorder's office. § 889. Judgments upon confession may be en- tered up in any justices' court specified in the con- fession. Confession of .indgment, generally: Sees. 1132- 1135; jurisdiction, sec. 112, subd. 6. § 890. Judgment that the action be dismissed, without prejudice to a new action, may be en- tered with costs, in the foUoAving cases: 1. When the plaintiff voluntarily dismisses the action before it is finally submitted: 2. When he fails to appear 9^ the time specified in the summons, or at the time to which the ac- tion has been postponed, or within one hour there- after; 3. When, after a demurrer to the complaint has been sustained, the plaintiff fails to amend it within the time allowed by the court; 4. When it is objected at the trial, and appears by the evidence, that the action is brought in the 365 JUDGMENTS. §§ 891-8S5. wrong county, or township, or city; but if the ob- jection is taken and overruled, it is cause only of reversal on appeal, and does not otherwise in- validate the judgment; if not talvcn at the trial, it is waived. Dismissal: Compare sec. 581. § 891. When a trial by jury has been had, judgment must be entered by the justice, at once, in conformity with the verdict. Entry of judgment, generally: Sec. 664; as af- fecting appeal, see sec. 939. § 892. When the trial is by the court, judgment must be entered at the close of the trial. § 893. The judgment in justices' courts must be entered substantially in the form required by section six hundred and sixty-seven of this Code. AYhen the judgment is rendered in a case where the defendant is subject to arrest and imprison- ment thereon, the fact tnat the defendant is so subject, must be stated in the judgment. [Amend- ment approved March 24, 1874; Amendments 1873-4, p. 334. In effect July 1, 1874.] Final process may be issued to any part of the county: Sec. 106. § 894. AYhen the amount found due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may re- mit the excess, and judgment may be rendered for the residue. Limit, three hundred dollars: Sec. 112. § 895. If the defendant, at any time before the trial, offer, in writing, to allow judgment to be taken against him for a specified sum, the plain- §§ 896, 897 JUDGMENTS. 366 t;£f may immediately have judgment therefor, with the ccsts then accrued; but if he do not accept such offer before the trial, and fail to recover in the action a sum in excess of the offer, he cannot recover costs, but costs must be adjudged against him, and, if he recover, be deducted from his re- covery. The offer and failure to accept it cannot be given in evidence nor affect the recovery, other- wise than as to costs. [Amendment approved March 2, 1S7S: Amendments 1877-8, p. 103.] Offer to compromise, compare sec. 997. § 896. The justice must tax and include in the judgment the costs allowed by law to the pre- vailing party. Percentage in San Francisco: See post. Appen- dix. § 897. The justice, on the demand of a party in whose favor judgment is rendered, must give him an abstract of the judgment in substantially the following form (hlJing blanks according to the facts): State of California, county, (or city and county). , plaintiff, v. , defendant. In justices' court, before , justice of the peace, township (or city, or city and county), , 18— [inserting date of abstract]. Judgment en- tered for plaintiff (or defendant), for $ , on the day of . I certify that the foregoing is a correct abstract of a judgment rendered in said action in my court— or (as the case may be) in the co\u*t of , justice of the peace, as appears by his docket, now in my possession, as his successor in office. , Justice of the Peace. [Amend- ment approved March 10, 1880; Amendments 1880, p. 10. In effect March 20. 1880.] 367 JUDGMENTS. §§ 898-900 § 898. The abstract may be filed in the office of the county clerk of the county in which the judgment was rendered, and the judgment docket- ed in the judgment doclvet of the Superior Court thereof. The time of the receipt of the abstract by the clerlv must be noted by him thereon, and entered in the doclcet. [Amendment approved March 10. 1880: Amendments 1880, p. 20. In ef- fect March 26, 1880.] Docketing, generally: Sec. 671. ilecoiding transcript: Sec. 674. § 899. From the time of docketing in the coun- ty clerk's office, execution may be issued thereon by the county clerlv to the sheriff of any county in the State, other than the county in wliich the judgment was rendered, in the same manner and witli like effect as if issued on a judgment of the Superior Court. [Amendment approved March 10, 1880; Amendments 1880, p. 20. In effect March 26. 1880.] Execution, generally: Sec. 681 et seq. Docketing: Sec. 671. Recording: Sec. 674. § 900. A judgment rendered in a justice's court creates no lien upon any lands of the defendant, unless such an abstract is filed in the office of the recordei' of the county in which the lands are sit- uated. When so filed, and from the time of filing, the judgment becomes a lien upon all the real property of the judgment debtor, not exempt from execution, in such county, owned by him at the time, or which he may afterward, and before the lien expires, acquire. The Lien continues for two years, unless the judgment be previously satisfied. [Amendment approved April 16, 1880; Amend- ments 1880, p. 113. In effect April 16, 1880.] Lien, extent and duration of, compare sec. 674. §§ 901, 903 EXECUTIONS. 388 CHAPTER IX. EXECUTIONS FROM JUSTICES' COURTS. § 901. Execution may issue at any time within five years. § 902. Execution, contents of. § 903. Renewal of execution. § 904, Duty of oflBcer receiving execution. § 905. Proceedings supplementary to execution. § 901. Execiitioii for the enforcement of a judgment of a justice's court may be issued by the justice who entered the judgment, or his succes- sor in office, on the application of the party enti- tled thereto, at any time within five years from the entry of judgment. Within five years, generally: Sec. 685. Execution, generally. Sec. 681 et seq. Final process may be issued to any part of the country: Sec. 116. § 90.2. The execution must be directed to the sheriff or to a constable of the county, and must be subscribed by the justice and bear date the day of its delivery to the olficer. It must intelli- gibly refer to the judgment, by stating the names of the parties, and the name of the justice before whom, and of the county and the township or city where, and the time when, it was rendered; the amount of judgment, if it be for money; and, if less than the whole is due, the true amount due thereon. It must contain, in lilvc cases, similar di- rections to the sheriff or constable, as are required by the provisions of title nine, part two, of this Code, in an execution to the sheriff. Compare sec. 681 et seq. § 903. An execution may, at the request of the judgment creditor, be renewed before the expira- 369 EXECUTIONS. §§ 904, 905 tion of the time fixed for its return, by the word ^'renewed," written tliereon, Avith the date thereof, and subscribed by tlie justice. Such renewal has the effect of an original issue, and may be re- peated as often as necessary. If an execution is returned unsatisfied, another may be afterward issued. § 904. The sheritf or constable to whom the execution is directed must execute the same in the same manner as the sheriff is required by the pro- visions of title nine, -part two, of this Code, to proceed upon executions directed to liim; and the constable, when the execution is directed to him, is vested for that purpose with all the powers of the sheriff. Execution of writ, compare sec. 691 et seq.; and generally, see sec. 688 et seq. See ante, sees, 681 et seq. § 905. The sections of this Code, from seven hundred and fourteen to seven hundred and twen- ty-one, both inclusive, are applicable to justices' courts, the word "constable" being substituted, to that end, for the word "sheriff," and the word "justice" for the word " judge." I'roceedings supplementary to execution: Sees. 714-721. §§ 906, 907 CONTEMPTS. 370 CHAPTER X. CONTEMPTS IN JUSTICES' COURTS. § 906. Contempts a justice may punish for. § 907. Proceedings for contempt. § 908. Same. § 909. Punishments for contempts. § 910. The conviction must be entered in the docket. § 906. A justice may pi^nish as for contempt, persons guilty of tlie following acts, and no other: 1. Disorderly, contemptuous, or insolent be- havior toward the justice while holding the court, tending to interrupt the due course of a trial or other judicial proceeding; 2. A breach of the peace, boisterous conduct, or violent disturbance in the presence of the jus- tice, or in the immediate vicinity of the court held by him, tending to interrupt the due course of a trial or other judicial proceeding; 3. Disobedience or resistance to the execution of a lawful order or process, made or issued by him; 4. Disobedience to a subpoena duly served, or refusing to be sworn or to answer as a wit- ness: 5. Rescuing any person or property in the cus- tody of an officer by virtue of an order or process of the court held by him. Contempts, generally: Sec. 1209 et seq. Courts and judicial officers, powers of: Sec. 128; sees. 177-179. § 907. When a contempt is committed in the immediate view and presence of the justice, it rany be punished summarily; to that end an order must be made reciting the facts, as they occurred, and adjudging that the person proceeded against 371 DOCKETS. §§ 908, 911 is thereby guilty of contempt, and tliat lie be pun- ished as therein prescribed. Compare sec. 1211. § 908. When the contempt is not committed in the immediate view and presence of the justice, a warrant of arrest may be issued by such justice, on which the person so guilty may be arrested and brought before the justice immediately, when an opportunity to be heard in his defense, or excuse, must be given. The justice may, thereupon, dis- charge him, or may convict him of the offense. Compare sec. 1211; sec. 1212 et seq. § 909. A justice may punish for contempts by fine or imprisonment, or both; such fine not to exceed in any case one hundred dollars, and such imprisonment one day. § 910. The conviction, specifying particularly the offense and the judgment thereon, must be en- tered by the justice in his docket. CHAPTER XI. DOCKETS OP JUSTICES. § 911. Docket, what to contain. § 912. Entries therein primary evidence of the facts. § 913. An index to the docket must be kept. § 914. Dockets must be delivered by justice to his suc- cessor, or to county clerk. §915. Proceed n GTS when office becomes vacant, and before a successor is appointed. § 916. Docket of another justice— Creation of a new county. § 917. Justice is successor of prior holder. § 918. Designation of succeeding justice. § 911. Every justice must keep a book, denom- inated a "docket," in which he must enter: §911 DOCKETS. 372 1. The title of every action or proceeding; 2. The object of the action or proceeding; and if a sum of money be claimed, the amount thereof; 3. The date of the summons, and the time of its return; and if an order to arrest the defendant be made, or a writ of attachment be issued, a state- ment of the fact; 4. The time when the parties, or either of them, appear, or their nonappearance, if default be made; a minute of the pleadings and motions; if in writing, referring to them; if not in writing, a concise statement of the material parts of the pleadings; 5. Every adjournment, stating on whose appli- cation and to what time; 6. The demand for a trial by jury, when the same is made, and by whom made, the order for the jury, and the time appointed for the return of the jury and for the trial; 7. The names of the jurors who appear and are sworn, and the names of all witnesses sworn, and at wliose request; S. The verdict of the jury, and when received; if Ihe jury disagree and are discharged, the fact of sucli disagreement and discharge; 9. The judgment of the court, specifying the costs included, and the time when rendered; 10. The issuing of the execution, when issued and to whom; the renewals thereof, if any, and when made, and a statement of any money paid to the justice, when and by whom; 11. The receipt of a notice of appeal, if any be given, and of the appeal bond, if any be filed. [Amendment approved March 24, 1874; Amend- ments 1873-4, p. 334. In effect July 1, 1874.] Docket in cities and counties: Sec. 93. 373 DOCKETS. §§ 912-915. § 912. The several particulars of the last sec- tion specified must be eutered under the title of the action to which they relate, and (unless otherwise in this title provided) at the time when they oc- cur. Such entries in a justice's docket, or a tran- script thereof, certified by the justice, or his suc- cessor in oftice, are prima facie evidence of the facts so stated. [Amendment approved March 10, 18S0; Amendments 1880, p. 20. In effect March 26, 1880.] Prima facie evidence: Sec. 1833. § 913. A justice must Ivcep an alphabetical in- dex to his docket, in which must be entered the names of the parties to each judgment, with a ref- erence to the paj?e of entry. The names of the plaintiffs must be entered in the index, in the alphabetical order of the first letter of the fam- ily name. § 914. Every justice of the peace, upon the ex- piration of his term of office, must deposit with his successor his official dockets and all papers filed in his office, as well his own as those of his prede- cessors, or any other which may be in his custody to be kept as public records. § 915. If the office of a justice become vacant by his deatli or removal from the township or city, or otlierwise. before his successor is elected and qualified, the docket and papers in possession of such justice must be deposited in the office of some other justice in the township, to be by him deliv- ered to the successor of such justice. If there is no other justice in the township, then the docket and papers of such justice must be deposited in the office of the county clerk of the county, to be ]>y him delivered to the successor in office of the justice. Code Civ. Proc— 32. §§ 916-918 DOCKETS. 374 § 916. Any justice with whom the docket of his predecessor or of another justice is deposited, has and may exercise over all actions and proceedings entered in such docket, the same jurisdiction as if originally commenced before him. In case of the creation of a neAv county, or the change of the boundary between two counties, any justice into whose hands the docket of a justice formerly act- ing as such within the same territory, may come, is, for the purposes of this section, considered the successor of such former justice. § 917. The justice elected to fill a vacancy is the successor of the justice whose office became vacant before the expiration of a full term. When a full term expires, the same or another person elected to take office in the same township or city, from that time is tlie successor. § 918. When two or more justices are equally entitled, under the last section, to be deemed the successors in office of the justice, a judge of the Superior Court must, by a certificate subscribed by him and filed in the office of the county clerk, designate which justice is the successor of a jus- tice going out of office, or whose office has become vacant. [Amendment approved March 10, 1880; Amendments 1880, p. 20. In effect March 26, 1880.] 375 GENERAL PROVISIONS. §§ 919-921 CHAPTER XII. GENERAL PROVISIONS RELATING TO JUSTICES' COURTS. § 919. Justices may issue subpoenas and final process to any part of the county. § 920. Blanks must be filled in all papers Issued by a jus- tice, except subpoenas. § 921. Justices to receive all moneys collected and pay same to parties. § 922. In case of disability of justice another justice may attend on his behalf. § 923. Justices may require security for costs. § 924. Who entitled to costs. § 925. What provisions of Code applicable to Justices' Courts. § 926. Deposit in lieu of undertaking. § 919. Justices of the peace may issue sub- poenas in any action or proceeding in the courts held by them, and final process on any judgment recovered therein, to any part of the county. Final process, to any part of the county: Sees. 94, lOG. § 920. The summons, execution, and every other paper made or issued by a justice, except a subpoena, must be issued without a blank left to be filled by another, otherwise it is void. § 921. Justices of the peace must receive from the sheriff or constables of their county, all moneys collected on any process or order issued from their courts respectively, and must pay the same, and all moneys paid to them in their official capacity, over to the parties entitled or authorized to re- ceive them, without delay. [Amendment approved March 10, 1880; Amendments 1880, p. 20. In effect March 20, 1880.] §§ 922-926 GENERAL PROVISIONS. 376 § 922. Il case of the sickness or other disabil- ity, or necessary absence of a justice, on a return of a summons, or at tlie time appointed for a trial, another justice of the same township or citj may, at his request, attend in his belialf, and thereupon is vested Avith the power, for the time being, of the justice before whom the summons was returnable. In that case, the proper entry of the proceedings before the attending justice, subscribed by him, must be made in the docket of the justice before whom the summons was returnable. If the case is adjourned, tlie justice before whom the sum- mons was returnable may resume jurisdiction. § 923. Justices may, in all cases, require a de- posit of money or an undertaking, as security for costs of court, before issuing a summons. Prepayment of fees: Sec. 01. § 924. The prevailing party in justices' courts is entitled to costs of the action, and also of any proceedings taken by him in aid of an execution, issued upon any judgment recovered therein. [Amendment approved March 24, 1874; Amend- ments 1873-4, p. 335. In effect July 1, 1874.] Costs: See sec. 896. § 925. Justices' courts being courts of peculiar and limited jurisdiction, only those provisions of this Code which are, in their nature, applicable to the organization, powers, and course of pro- ceedings in justices' courts, or which have been made applicable by special provisions in this title, are applicable to justices' courts and the proceed- ings therein. Teculiar and limited jurisdiction: Sees. 112-114. § 926, In all civil cases arising in justices' courts, wherein an undertaking is required as pre- 377 CIVIL ACTIONS IN POLICE COURTS. §§ 929-931 scribed iu this Code, the plaintiff or defendant may deposit with said justice a sum of money in United States gold coin equal to the amount re- quired by the said undertalving, which said sum of money shall be talcen as security in place of said undertaliing. [New section approved Febru- ary 25, 1878; Amendments 1877-8, p. 103. In effect sixty days after passage.] TITLE XII. PROCEEDINGS IN CIVIL ACTIONS IN POLICE COURTS. § 929. How commenced. § 930. Summons must issue on filing complaint. § 931. Defendant may plead orally or in writing. § 932. Trial by jury, when defendant is entitled to. § 933. Proceedings to be conducted as in Justices' Courts. § 929. Civil actions in police courts are com- menced by filing a complaint, setting forth the vio- lation of tlie ordinance complained of, with such particulars of time, place, aud manner of viola- tion as to enable the defendant to understand dis- tinctly the character of the violation complained of, and to answer the complaint. The ordinance may be referred to by its title. The complaint must be verified by the oath of the party com- plaining, or of his attorney or agent. § 930. Immediately after filing the complaint, a summons must be issued, directed to the defend- ant, and returnable either immediately or at any time designated therein, not exceeding four days from the date of its issuing. § 931. On the return of the summons the de- fendant may answer tlie complaint. The answer may be oral or in writing, and immediately there- after the case must be tried, unless, for good cause shown, an adjournment is granted. §§ 932, 933 CIVIL ACTIONS IN POLICE COURTS. 378 § 932. Ill all actions for violation of an ordi- nance, where the fine, forfeiture, or penalty im- posed by the ordinance is less than fifty dollars, the trial must be by the court. In actions where the fine, forfeiture, or penalty imposed by the or- dinance is over fifty dollars, the defendant is en- titled to a trial by jury. § 933. All proceedings in civil actions in police courts must, except as in this title otherwise pro- vided, be conducted in the same manner as civil actions in justices' courts. Civil proceedings in justices' courts: Sees. 832- 925. 379 APPEALS IN GENERAL. TITLE XIII. OF APPEALS IN CIVIL ACTIONS. Chapter I. Appeals in general. II. Appeals from District Courts. III. Appeals from County Courts. IV. Appeals from Probate Courts. V. Appeals to County Courts. CHAPTER I. APPEALS IN GENERAL. § 936. Judgment and orders may be reviewed. § 937. Orders made out of court, without notice, may be re- viewed by the judge. § 938. Party aggrieved may appeal. Names of parties. § 939. Within what time appeal may be taken. § 940. Appeal, how taken. § 941. Appellant must file undertaking within five days. § 942. Undertaking on appeal from a money judgment. § 943. Appeal from a judgment for delivery of documents. § 944. Appeal from judgment directing execution of a conveyance, etc. S 945. Undertaking on appeal concerning real property. § 946. Stay of proceedings. The security on appeal may DC limited in the case of an execution, etc. § 947. Undertaking may be in one instrument or several. § 948. Justification of sureties on undertaking on appeal. § 949. Undertakings in cases not specified. § 950. What papers to be used on an appeal from the judg- ment. § 951. What papers used on appeals from orders, except orders granting or refusing new trials. § 952. What papers to be used on an appeal from an order granting or refusing a new trial. § 953. Copies and undertakings, how certified. § 954. When appeal may be dismissed. When not. § 955. Effect of dismissal. § 956. What may be reviewed on appeal from judgment. § 957. Remedial powers of an appellate court. § 958. On judgment on appeal, remittitur must be certified to the clerk of the court below. § 959. Provisions of this chapter not applicable to appeals to County Courts. §§ 936-939. APPEALS IN GENERAL. 380 § 936. A judgment or order in a civil action, ex- cept when expressly made final by this Code, may be reviewed as prescribed in this title, and not otherwise. Judgments and orders, appeal from: Sec. 939. § 937. An order made out of court, without no- tice to the adverse party, may be vacated or mod- ified without notice, by the judge Avho made it; or ma 5' be vacated or modified on notice, in the manner in which other motions are made. Orders, generally: Sec. 1003 et seq. § 938, Any party aggrieved may appeal in the cases prescribed in this title. The party appeal- ing is known as the appellant, and the adverse party as the respondent. Death of party: Sec. 385. Appeals from judgments or orders in, courts ex- isting before January 1, 1880. See post, Appen- dix, p. 865. § 939. An appeal may be tal^eu: 1. From a final judgment in an action or spe- cial proceeding commenced in the court in which the same is rendered, within six months after the \ entry of judgment. But an exception to the de- C\ cision or verdict, on the ground that it is not sup- 4 ported by the evidence, cannot be reviewed on an .^ appeal from the judgment, unless the appeal is ^ taken within sixty days after the rendition of the /*" judgment; ^ 2. From a judgment rendered on an appeal from \i^j an inferior court, witliin ninety days after the en- \ try of sucli judgment; ;\ 3. From an order granting or refusing a new ^ trial; from an order granting or dissolving an in- ^y junction; from an order refusing to grant or dis- 3S1 APPEALS IN GENERAL § 940 solve an io junction; from an order appointing a receiver; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment; from an interlocutory judgment in actions for par- tition of real property; and from an order con- firming, changing, modifying, or setting aside the report, in whole or in part, of the referees in ac- tions for partition of real property in the cases mentioned in section seven hundred and sixty- three of this Code, within sixty days after the order or interlocutory judgment is made and en- tered in the minutes of the court, or filed with the clerk. [Approved March 3, 1897; Stats. 1897, c. 62.] Effect of appeal: See. sec. 94G, infra. As to the record on appeals, see sec. 951, post. Appeals, to Supreme Court: Sees. 963-966; to Superior Court, sees. 974-980. Definition of judgment, sec. 577; exceptions, need of, sees. 646, 956. As to appeal from judgment on controversy sul)mitted without action, see sec. 1140. Orders reviewable on appeal from judgment: Sec. 956. v^ 940. An appeal is taken by filing with the clerk of the court in which the judgment or order api)ealed from is entered, a notice stating the ap- peal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immate- rial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the ad- §§ 941, 942 APPEALS IN GENERAL. 382 verse party in writing. [Amendment approved March 24, 1874; Amendments 1873-4, p. 336. In effect July 1, 1874.] Filing and serving: Sec. 1015. Notice of appeal, generally: See sec. 1010 et seq.; see sec. 1714. Undertaliing on appeal, requirements of: Sec. 941; unnecessary, when, sees. 965, 1058; exception to sureties, time for, sec. 648. Exceptions, necessity for: Sees. 646, 956. Service of papers: Sees. 1010-1017. As to the practice on appeals in criminal causes in such cases, see Pen. Code, sec. 1237. § 941. The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hun- dred dollars; or that sum must be deposited with the clerk with whom tlie judgment or order was entered, to abide tlie event of the appeal. Undertaking on appeal, filing, time for: Sec. 940; and see sec. 1054; sufficiency of, sec. 954; sureties, paying judgment, sec. 10.'9. Deposit with clerk: Sec. 948; also sees. 573, 2104. Liability of. Civ. Code: Sec. 2836; qualification, sec. 1058; subrogation, sec. 709. Filing new undertaking in appellate court: See post, sec. 954. Qualilleation of sureties: Sec. 1057. Lial)jlity on undertakings, generally. As to sure- ties' rights, see sees. 709, 1059. § 942. If the appeal be from a judgment or or- der directing the payment of money, it does not 383 APPEALS IN GENERAL. § 942 stay the execution 'of the judgment or order un- less a written undertalving be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant Avill pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the appellant does not malie such payment within thirty days after the filing of the remittitur from the Supreme Court in the court from which the appeal is tal^en, judgment may be entered on mo- tion of the respondent in his favor against the sureties, for such amount, together with the in- terest that may be due thereon, and the damages and costs which may be awarded against the ap- pellant upon the appeal. If the judgment or order appealed from be for a greater amount than two thousand dollars, and the sureties do not state in their affidavils of justification accompanying the undertaking, that they are each worth the sum specified in the undertaking, the stipulation may be that the judgment to be entered against the sureties shall be for such amounts only as in their affidavits they may state that they are severally worth, and judgment may be entered against the sureties by the court from which the appeal is taken, pursuant to the stipulations herein desig- nated. When the judgment or order appealed from is made payable in a specified kind of money or currency, the judgment entered against the sure- ties upon the undertaking must be made payable in the same kind of money or currency. [Amend- § 943 APPEALS IN GENERAL. 384 meut approved March 24, 1874; •Amendments 1873- 4, p. 33(5. In effect July 1, 1880.] Deposit in lieu of undertaking: Sees. 941, 948. Qualification of sureties: Sec. 1057. Speciiied liind of money: Sec. 667. Stay where no provision made: See sec. 949. § 943. If the judgment or order appealed from direct tlie assignment or delivery of documents or personal property, the execution of the judgment or order cannot be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court, or a judge thereof, may direct, to the effect that the appellant will obej^ the order of the ap- pellate court upon the appeal. If the judgment or order appealed from appoint a receiver, the execu- tion of the judgment or order cannot be stayed by appeal, unless a written undertaking be exe- cuted on the part of the appellant, with two or more sureties, to the effect that if such judgment or order be affirmed or the appeal dismissed, tlie appellant will pay all damages which the re- spondent may sustain by reason of such stay, not exceeding an amount to be fixed by the judge of the court by which the judgment was rendered or order made, which amount must be specified in the undertnking. If the judgment or order appealed from direct the sale of personal property upon the foreclosure of a mortgage thereon, the execution of the judgment or order cannot be stayed on ap- ])('al. unless an undertaking be entered into on the part of the appellant, with at least two sureties, in sucli amount as the court, or the judge thereof, may direct, to the effect that the appellant will, on 385 APPEALS IN GENERAL. §§ 944, 945 demaud, deliver the mortgaged property to the proper officer if the judgment be affirmed, or in default of such delivery that the appellant and sureties will, on demand, pay to the proper officer the full value of such property at the date of the appeal. [Approved :SIarch 3, 1807; Stats. 1897, c. 64.] Receiver: Sec. 561. Undertalving: Sec. 041. § 944. If the judgmeut or order appealed from direct the execution of a convej'ance or other instrument, the execution of tlie judgment or order cannot be stayed by the appeal until the instru- ment is executed and deposited with the clerk with whom the judgment or order is entered, to abide the judgment of the appellate court. § 945. If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same cannot be stayed, unless a written undertalviug be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not com- mit, or suffer to be committed, any waste thereon, and tliat if the judgment be affirmed, or the ap- peal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding tlie sum to be fixed by the judge of the court by which the judgment was rendered or order made, and wliicli must be specified in the undertaking. TMien the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, tlie undertaking must also provid(^ for the payment of such deficiency. Code Civ. Proc— 33. §§ 946, 947 APPEALS IN GENERAL. §86 Realty, sale or delivery of possession of: Sees. .720, 744. Deposit witli clerlx: Sees. 941, 948. Undertaking: Sec. 941. Qualifications of sureties: Sec. 1057. Waste: Sees. 745, 74t>. § 946. Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or up- on the matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment; but the court below may proceed upon any other mat- ter embraced in the action and not affected by the order appealed from. And the court below may, in its discretion, dispense with or limit the secu- rity required by this chapter, when the appellant is an executor, administrator, trustee, or other person acting in another's right. An appeal does not continue in force an attachment unless an undertalving be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attach- ment, in case the order of the court below be sus- tained; and, unless, within five days after the en- try of the order appealed from, such appeal be perfected. [Amendment approved March 24, 1874; Amendments 1873-4, p. 337. In effect July 1, 1874.1 Security of executor: See sec. 966. § 947. The undertakings prescribed by sections nine hundred and forty-one, nine hundred and forty-two, nine hundred and forty-three, and nine hundred and forty-five, may be in one instrument or several, at the option of the appellant. 387 APPEALS IN GENERAL. §§ 948,949 § 948. The adverse party may except to the sufficiency of the sureties to any of the undertak- ings mentioned in sections nine hundred and forty- one, nine hundred and forty-two, nine hundred and forty-three, and nine hundred and forty-five, at any time witliin thirty days after the filing of such undertalving; and unless they or other sureties, \rithin twenty days after the appel- lant has been served with notice of such exception, justify before a judge of the court below, or coun- ty clerk, upon five days' notice to the respondent of the time and place of justification, execution of the judgment, order, or decree appealed from is no longer stayed; and in all cases where an un- dertaking is required on appeal by the provisions of this title, a deposit in the court below of the amount of the judgment appealed from, and three hundred dollars in addition, shall be equivalent to filing the undertaking, and in all cases the under- taking or deposit may be waived by the written consent of the respondent. [Amendment approved March 9, 18S0: Amendments 1880, p. 6. In ef- fect March 9, 1880.] Justification of sureties: See sec. 495. § 949. In cases not provided for in sections nine hundred and forty two, nine hundred and forty- three, nine hundred and forty-four, and nine hun- dred and forty-five, the perfecting of an appeal by giving the undertaking or making the deposit mentioned in section nine hundred and forty-one, sta.vs proceedings m the court below upon the judgment or order appealed from, except where it directs the sale of perishable property; in which case the court below may order the property to be sold and the proceeds thereof to be deposited, to abide the judgment of the appellate court. And except also, where it adjudges the defendant guil- ty of usurping, or intruding into, or unlawfully §§ 950, 951 APPEALS IN GENERAL. 388 holding public office, civil or military, within this State. And except also, ^Yhere the order grants, or refuses to grant, a change of the place of trial of an action. [Amendment approved February 16, 1874; Amendments 1873-4, p. 408. In effect Febru- ary IG, 1874.] § 950. On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial, or settled after de- cision of such motion, when the motion is made upon the minutes of the court, as provided in sec- tion six hundred and sixty-one, or any bill of ex- ceptions settled, as provided in sections six hun- dred and forty-nine or six hundred and fifty, or used on motion for a new trial, may be used on appeal from a final judgment equally as upon ap- peal from the order granting or refusing the new trial. [Amendment approved March 24, 1874; Amendments 1878-4, p. 838. In effect July 1, 1874.] Judgment roll: Sec. 070. Exceptions: Sec. 956. Transcript, authentication of: Sec. 953; contents, sees. 950-952. § 951. On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below. [Amendment approved March 24, 1874: Amendmeuts. 1873-4. p. 889. In effect July 1, 1874.] liost papers: Sec. 1045. 389 APPEALS IN GENERAL. §§ 952-954 § 952. On an appeal from an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the order appealed from, and of the papers desig- nated in section six hundred and sixty-one of this Code. [Amendment approved March 24, 1874; Amendments 1873-4, p. 839. In effect July 1, 1874.] Papers on appeal, generally: See sees. 950, 951. Lost papers: Sec. 1045. § 953. The copies provided for in the last three sections must be certified to be correct by the clerk or the attorneys, and must be accompanied with a certificate of the clerk or attorneys that an undertaking on appeal, in due form, has been prop- erly filed, or a stipulation of the parties waiving an undertaking. [Amendment approved March 24, 1874; Amendments 1873-4, p. 339. In effect July 1, 1874. J Ileview on appeal: Sec. 53. § 954. If the appellant fails to furnish the re- quisite papers, the appeal may be dismissed; but no appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient un- dertaking, approved by a justice of the Supreme Court, be filed in the Supreme Court before the hearing upon motion to dismiss the appeal. When it is made to appear to the satisfaction of the court, or a judge thereof, from which the appeal was talven. that a surety or sureties upon an ap- peal bond from any cause has or have become insufficient, and the bond or undertaking inade- quate as security for the payment of the judg- ment appealed from, the last-named court, or a judge thereof, may order the giving of a new bond with sufficient sureties, as a condition to the main- §§ 955-957 APPEALS IN GENERAL. 390 tenance of the appeal. The said bond or undertak- ini? shall be approved by the last-named court, or a judge thereof; and in case said sureties fail to justify before said last-named court, or a judge thereof, or fail to comply with the order to ap- pear and justify, execution may issue upon the judgment as if no undertalving to stay execution had been given. [Amendment approved March 16, 1895; Stats. 1-895, p. 59. In effect in sixty days.] See sec. 951. § 955. The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made with- out prejudice to another appeal. § 956. Upon an appeal from a judgment, the court may review the verdict or decision, and any intermediate order or decision excepted to, which involves the merits, or necessarily affects the judg- ment, except a decision or order from which an appeal might have been taken. [Amendment ap- proved April 3, ISTG; Amendments 1875-6, p. 91. In effect June 1, 1876.] § 957. When the judgment or order is reversed or modified, the appellate court may make com- plete restitution of all property and rights lost by the erroneous judgment or order, so far as such restitution is consistent with protection of a pur- chaser of property at a sale ordered by the judg- ment, or had under process issued upon the judg ment, on tlie appeal from which the proceedings were not stayed; and for relief in such cases the appellant may have his action against the respond- ent, enforcing the judgment for the proceeds of the sale of the property, after deducting therefrom the expenses of the sale. When it appears to the ap- 391 APPEALS IN GENERAL. §§ 958, 959 pellate court that the appeal was made for delay, it may add to the costs such damages as may be just. [Amendment approved March 24, 1874; Amendments 1873-4, p. 340. In effect July 1, 1874.] Judgment reversed: Sec. 966. Costs on appeal, generally: Sec. 1034; costs be- ^ow, etc., see sees. 1022, 1039; where modification of judgment, sec. 1027, subd. 2. § 958. AVhen judgment is rendered upon the appeal, it must be certified by the clerk of the Su- preme Court to the clerk with whom the judgment roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed must attach the certifi- cate to the judgment roll, and enter a minute of the judgment of the Supreme Court on the docket; against the original entry. In cases of appeal from an order, the clerk must enter at length in the re- cords of the court the certificate received, and min- ute against the entry of the order appealed from, a reference to the certificate, with a brief state- ment that such order has been affirmed, reversed, or modified by the Supreme Court on appeal. Judgment rendered on appeal: Sec. 45. Remittitur.— Judgment becomes final thirty days after it is filed: See Const., art. 6, sec. 2. § 959. The provisions of this chapter do not ap- ply to appeals to Superior Courts. [Amendment approved March 9, 1880; Amendments 1880, p. 6. In effect March 9, 1880.] Appeals to Superior Courts: Sees. 974-980. § 963 APPEALS TO SUPREME COURT. 392 CHAPTER II. APPEALS TO SUPREME COURT. § 963. When an appeal may be taken. § 934. Appeals; in what cases appealed from Justices' Courts. § 965. Appeals by executors and administrators. § 966. Acts of executors and administrators, where appoint- ment vacated. § 963. An appeal may be taken to the Supreme Coin't, from a Superior Court, in the following cases: 1. From a final judgment entered in an action, or special proceeding, commenced in a Superior Court, or brought into a Superior Court from an- other court. 2. From an order granting or refusing a new trial, or granting or dissolving an iniunction, or refusing to grant or dissolve an injunction, or ap- pointing a receiver, or dissolving or refusing to dis- solve an attachment, or changing or refusing to change the place of trial, from any special order made after final judgment, and from such interlo- cutory judgment in actions for partition as deter- mines the rights and interests of the respective ^' parties, and directs partition to be made; 3. From a judgment or order granting or refus- >j ing to grant, revolting or refusing to revolve, letters ^- testamentary, or of administration, or of guardian- j ship; or admitting or refusing to admit a will to \ probate, or against or in favor of the validity of a <^ will, or revolting the probate thereof; or against K or in favor of setting apart property, or making an !^ allowance for a widow or child; or against or in favor of directing the partition, sale, or convey- ance of real property, or settling an account of an executor, administrator, or guardian; or refusing. 393 APPEALS TO SUPREME COURTS. §§ 964, 965 allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, or legacy, or distributive sliare; or confirming or refusing to confirm a report of an ap- praiser or appraisers setting apart a. homestead. [Approved March 27, 1897; Stats. 1897, c. 151.] Appeal from final judgment, compare sec. 939, subd. 1. Appeals from orders, compare sec. 939, subd. 3. Appeals from probate decisions, generally: See sees. 1714, 1715; special administration, granting no appeal, sec. 1413. Appeals in criminal cases: See sec. 52, ante, and sees. 1237, 1238, of tlie Penal Code. § 964. The foregoing section does not apply in cases appealed from justices', i^olice, or other in- ferior courts, except cases of forcible entry and de- tainer, and cases involving tlie title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars Appeals to Superior Court: Sec. 974 et seq. Forcible entry and detainer, concurrent juris- diction of justices' courts, sec. 113, subd, 1. § 965. When an executor, administrator, or guardian, Avho has given an official bond, appeals from a judgment or order of the Superior Court made in the proceedings had upon the estate of which he is executor, administrator, or guardian, his official bond shall stand in the place of an un- dertalving on appeal: and the sureties thereon shall be liable as on such undertalcing. Undertalving on appeal, and generally: Sec. 941. Probate appeals: Sec. 9G3, subd. 3. §§ 966, 974 APPEALS TO SUPERIOR COURTS. 394 § 966. When the judgment or order appointing^ an executor, or administrator, or guardian, is re- versed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts in admin- istration upon the estate performed by such execu- tor, or administrator, or guardian, if he have qual- ified, are as valid as if such judgment or order had been afllrmed. Appointment of executor, etc., appeal from: Sec. 963, subd. 3. Restitution on reversal, etc: Sec. 957. CHAPTER III. APPEALS TO SUPERIOR COURTS. § 974. Appeal from judgment of Justice's or Police Court. § 975. Appeal on questions of law; statement. § 976. Appeal on questions of fact, or law and fact. § 977. Transmission of papers to appellate court, § 978. Undertaking on appeal. . § 979. Stay of proceedings on filing undertaking. S 980. Powers of Superior Court on appeal. § 974. Any party dissatisfied with a judgment rendered in a civil action in a Police or .Justice's Court, may appeal therefrom to the Superior Court of the county, at any time within thirty days after the rendition of the judgment. The appeal is taken bj'^ filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both. Notice of appeal, service on adverse party: See sec. 1015, and compare sec. 940. Appeals from decrees or orders of courts in ex- istence before January 1, 1880: See post. Appen- dix, p. 805. 395 APPEALS TO SUPERIOR COURTS. §§ 975-977 § 975. When a party appeals to the Superior Court on questions of law alone, he must, within ten days from the rendition of judgment, prepare a statement of the case and file the same with ine justice or judi^e. The statement must contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. Within ten days after he receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments. The pro- posed statement and amendments must be settled by the Justice or judge; and if no amendment be filed, the original statement stands as adopted. The statement thus adopted, or as settled by tne justice or judge, with a copy of the docliet of the justice or judge, and all motions filed with him by the parties during the trial, and the notice of ap- peal, may be used on the hearing of the appeal before the Superior Court. Settlement of statement on appeal: Compare sec. 650. § 976. When a party appeals to the Superior Court on questions of fact, or on questions of both law and fact, no statement need be made, but tne action must be tried anew in the Superior Court. [Amendment approved March 20, 1880; Amend- ments 1880, p. IG. In effect March 26, 1880.] Conduct of trial: Sec. 980. § 977. Upon receiving the notice of appeal, and on payment of the fees of the justice or judge, payable on appeal and not included in the judg- ment, and filing an undertalving as required in the next section, and after settlement or adoption of statement, if any, the justice or judge must, with- in five days, transmit to the clerk of the Superior § 978 APPEALS TQ SUPERIOR COURTS. 396 Court, if the appeal be ou questions of law alone, a certified copy of his docket, the statement as ad- mitted or as settled, the notice of appeal, and the undertaking- filed; or, if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions, and all other papers filed in the cause, the notice of appeal, and the undertaking filed; and the justice or judge may be compelled by the Superior Court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the justice or judge by the party or his attorney. In the Superior Court, either par- ty may have the benefit of all legal objections made in the Justice's or Police Court. [Approved March 27, 1897; Stats. 1897, ch. 152.] § 978. An appeal from a Justice's or Police Court is not effectual for any purpose, unless an undertaking be filed Avith two or more sureties in tlie sum of one liundred dollars for the payment of the costs on the appeal; or, if a stay of proceed- ings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money; or twice the value of property, including costs, Avhen the judgment is for the recovery of specific personal property, and must be conditioned, when the ac- tion is for the recovery of money, that the appel- lant will pay the amount of the judgment appeal- ed from, and all costs^ if the ai)peal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the Superior Court. When the action is for the recovery of or to enforce or foreclose a lien on specific personal property, the undertaking must be conditioned that the appellant will pay 397 APPEALS TO SUPERIOR COURTS. § 978 the jiKlgment and costs appealed from, and obey the order of the court made therein, if tlie appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the Superior Court, and will obey any or- der made by the court therein. When ^iie judg- ment appealed from directs the delivery of posses- sion of real property, the execution of the same cannot be stayed unless a written undertaliing be executed on the part of the appellant, with two or more sureties, to the effect that during the posses- sion of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the appeal be dismissed or withdrawn, or the judgment affirmed, or judgment be recovered against him in the action in the teu- I^erior Court, he will pay the value of the use and occupation of the property from the time of the ap- peal until the delivery of possession thereof; or Miat he will pay any judgment and costs that may be recovered against him in said action in the Su- perior Court, not exceeding a sum to be fixed uy the justice of the court from which the appeal is taken, and which sum must be specified in the un- dertalving. A deposit of the amount of the judg- ment, including all costs appealed from or of the value of the property, including all costs in ac- tions for the recovery of specific personal prop- erty, with the justice or judge, is equivalent to the filing of the undertaking, and in such cases, the justice or judge must transmit the money to the clerk of the Superior Court, to be by him paid out on the order of the court. The adverse party may except to the sufficiency of the sureties within five days after the fil- ing of the undertalving, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the ad- Code Civ. Proc— 34. §§ 979, 980 APPEALS TO SUPERIOR COURTS. 398 rerse party, to the amounts stated in their affida- vits, the appeal must be regarded as if no such undertaking- had been given. [Amendment ap- proved ^larch 20. 18S0; Amendments 1880, p. 16. In effect March 26, 1880. J Undertaking on appeal: Compare sec. 941. Sureties, justification: Sec. 948; qualification: Sec. 1057. § 979, If nn execution be issued on the filing of the undertaking staying proceedings, the justice or judge must, by order, direct the officer to stay all proceedings on the same. Such officer must, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the offi- cer may retain so much of the property or proceeds thereof as may be necessary to pay the same. [Amendment approved March 2G, 1880; Amend- ments 1880, p. 17. In effect March 26, 1880.] § 980. Upon an appeal heard upon a statement of the case, the Superior Court may review all or- ders affecting the judgment appealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to and dependent up- on such judgment, and may, if necessary or prop- er, order a new trial. AVhen the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the Superior Court. The provisions of this Code as to changing the place of trial, and all the provisions as to trials in the Su- perior Court, are applicable to trials on apeal in the Superior Court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the Superior Court, after notice, may or- 399 APPEALS TO SUPERIOR COURTS. § 980 der the appeal to be dismissed, with costs; and if it appear to such court that the appeal was made solely for delay, it may add to the costs such dam- ages as may be just, not exceeding twenty-five per cent of the judgment appealed from. Judgments rendered in the Superior Court on appeal shall have the same force and effect, and may be en- forced in the same manner, as judgments in ac- tions commenced in the Superior Court. [Amend- ment approved March 26, 18S0; Amendments 1880, p. 17. In effect March 2G, 1880.] The foregoing sections end chapter 3, which, with chapter 2 of title 12 of part 2, was entirely amended, and the foregoing chapters, 2 and 3, adopted as substitutes therefor, by act approved March 2G, 1880; Amendments 1880, 14 (Ban. ed. 52); took effect immediately; repealed all acts and parts of acts in conflict therewith. Chapters 4 and 5, of title 13 of part 2, and each and every section thereof, relating to appeals from probate courts and appeals to county courts, were repealed by act approved April 15, 1880; Amendments 1880, 64 (Ban. ed. 238). Took effect immediately. Amendments: Sec. 473. Trial de novo: See ante, sec. 976. New trial: See sees. 656 et seq. I REPEAL OF CERTAIN CHAPTERS. 400 TITLE XIII. CHAPTERS IV, V. The act is as follows: An act to repeal chapters four aud five, of title thirteen, of part two, of the Code of Civil Proced- ure, and each and every section of said chapters four and five, relating to appeals in civil actions. [Approved April 15, 18S0.] The People of the State of California, represent- ed in Senate and Assembly, do enact as follows: § 1. Chapters four and five, of title thirteen, of pnrt two, of the Code of Civil Procedure, and each aud every section of said chapters four and five (sees. 969-980), are hereby repealed. § 2. This act shall take effect immediately. 401 AGAINST JOINT DEBTORS. TITLE XIV. OF MISCELLANEOUS PROVISIONS. Chapter I. Proceedings against joint debtors. II. Offer of the defendant to compromise. III. Inspection of writings. IV. Motions and orders. V. Notices, and filing, and service of pa- pers. VI. Of costs. VII. General provisions. CHAPTER I. PROCEEDINGS AGAINST JOINT DEBTORS. § 989. Parties not summoned in action on joint contract may be summoned after judgment. § 990. Summons in that case, what to contain, and how served. § 991. Affidavit to accompany summons. § 992, Answer, when filed and what it may contain. § 993. What constitute the" pleadings in the case. § 994. Issues, how tried. Verdict, what to be. § 989. When a .iudgment is recovered against one or more or several persons, .iointly indebted upon an obligation, by proceeding, as provided in section four Imndred and fourteen, those Tvho were not originally served with the summons, and did not api)ear to the action, may be summoned to show cause why they should not be bound by the .judgment in the same manner as though they had been originally served with the summons. Cognate provisions: Sees. 383, 414, 579. Joining persons severally liable upon instrument: Sec. 383. Summons served on one defendant out of sev- §§ 990-993 AGAINST JOINT DEBTORS. 402 eral, plaintiff may proceed against him alone: !Sec. 414. Judgment 'against some defendants, proceeding continuing against others: Sec. 579. Release of one joint debtor does not discharge others: Civ. Code, sec. 1543. § 990. The summons, as provided in the last section, must describe the judgment, and require the person summoned to show cause why he should not be bound by it, and must be served in the same manner and returnable within the sairie time as the original summons. It is not necessary to file a new complaint. Summons, contents, service, etc.: Sees. 407, 410, et seq. § 991. The summons must be accompanied by au affidavit of the plaintiff, his agent, representa- tive, or attorney, that the judgment, or some part thereof, remains unsatisfied, and must specify the amount due thereon. § 992. Upon such summons, the defendant may answer within the time specified therein, deny- ing the judgment, or setting up any defense which may have arisen subsequently; or he may deny his liability on the obligation upon which the judgment was recovered, except a discharge from such liability by the statute of limitations. Answer: Sec. 437, notes, et seq. § 993. If the defendant, in his answer, deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, constitute the written allegations in the case; if he deny his liability on the obligation upon which the judg- 403 OFFER TO COMPROMISE. §§ 994, 997 ment was recovered, a copy of the original com- plaint and judgment, the summons, with the af- fidavit annexed, and the answer, constitute such written allegations. § 994. The issues formed may be tried as in other cases; but wlien the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found against him it must be for not exceeding the amount remaining unsatisfied on such original judgment, with interest thereon. Trial: Sees. 607-G45. CHAPTER II. OFFER OP THE DEFENDANT TO COMPROMISE. § 997. Proceedings on offer of the defendant to compromise after suit brought. § 997. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect there- in specified. If the plaintiff accept the offer, and give notice thereof, within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accord- ingly. If the notice of acceptance be not given, the ofl'er is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judg- ment, he cannot recover costs, but must pay the defendant's costs from the time of the offer. [Amendment approved March 24, 1874; Amerirl- ments 1873-4, p. 341. In effect July 1, 1874.] Offer, not an admission: See. 2078; equivalent to tender, sec. 2074. Judgment, by confession: Sec. 1132. § 1000 INSPECTION OF WRITINGS. 404 CHAPTER III. INSPECTION OF WRITINGS. § 1000. A party may demand inspection and copy of a book, paper, etc. § 1000. Any court in which an action is pend- ing, or a judge tliereof, may, upon notice, order either party to give to the other, within a speoi fled time, an inspection and copy, or permission to talve a copy, of entries of accounts in any bool?:, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts of the book, or the document, or paper from being given in evidence, or if Avanted as evidence by the party applying, may direct the jury to presume them to be such as he alleges them to be; and the court may also punish the party refusing for a con- tempt. This section is not to be construed to pre- vent a party from compelling another to produce books, papers, or documents, when he is examined as a witness. [Amendment approved -ipril 15, 1880; Amendments 1880, p. 72. In effect April 15, 1880. ] Items of an account: Sec. 454. Compelling production of books, etc.: Sec. 1985 et seq.; see, also, sees. 1938, 1939. Contempt: Sec. 1209 et seq. 405 MOTIONS AND ORDERS. §§ 1003-lOOB CHAPTER IV. MOTIONS AND ORDERS. ! § 1003. Order and motion defined. § 1004. Motions and orders, where made. § 1005. Notice of motion, at what time to be given. § 1006. Transfer of motions and orders to show cause. § 1007. Order for payment of money, how enforced. § 1003. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An applica- tion for an order is a motion. Ordeiv vacating: Sec. 937; enforcement, sec. 128, subd. 4; renewing, application for, sees. 182, 183; final, effect of as estoppel, sec. 1908. Motion, notice of, sec. 1005; heard before court commissioners, sec. 259, subd. 1. § 1004. Motions must be made in the county, or city and county, in which the action is pending. Orders made out of court may be made by the judge of the court in any part of the State. [Amendment approved Marcli 10, 1880; Amend- ments 1880, p. 12. In effect March 10, :^680.] Power of judge at chambers: Sees. 165, 166, 176; court commissioner's control of ex parte motions, sec. 259, subd. 1. § 1005. When a written notice of a motion is necessary, it must be given, if the court be held in the same county, or city and county, with both parties, live days before the time appointed for the hearing: otherwise, ten days. When the no- tice is served by mail, the number of days before the hearing must be increased one day for every twenty-five miles of distance between the place of deposit and the place of service; such increase. §§ 1006, 1007 MOTIONS AND ORDERS. 406 however, not to exceed in all thirty days; but in all eases the court, or a judge thereof, may pre- scribe a shorter time. [Amendment approved March 10, 1880; Amendments 1880, p. 13. in ef- fect Miivch 10, 1880.] Written, notice must be: Sec. 1010; order made without notice, sec. 937. Service, of papers, generally: Sec. 1010 et seq. § 1006. When a notice of motion is given, or an order to show cause is made returnable, before a judge out of court, and at the time fixed for iho motion, or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge, before whom it might originally have been brought. Notice of motion: Sec. 1005. § 1007. Whenever an order for the payment of a sum of money is made by a court, pursuant to the provisions of this Code, it may be enforced by execution in the same manner as if it weif^ a judgment. Enforced by execution: Sec. 681 et seq.; ocii- tempt, sec. 1209 et seq. 407 NOTICES, SERVICE OP PAPERS. §§ 1010, 1011 CHAPTER V. NOTICES, AND FILING AND SERVICE OF PAPERS. § 1010. Notices and papers, how served. § 1011. When and how served. § 1012. Service by mail, when. § 1013. Service by mail, how. § 1014. Appearance. Notices after appearance. § 1015. Service on non-residents. Where a party has an attorney, service shall be on such attorney, § 1016. Preceding provisions not to apply to proceeding to bring party into contempt. § 1017. Service by telegraph. § 1010. Notices must be in writing, and no- tices and other papers may be served upon the party or attorney in the manner prescribed in tliis cliapter, when not otherwise provided by this Code. § 1011. The service may be personal, by de- livery to the party or attorney on whom the ser- vice is required to be made, or it may be as fol- lows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the ofJ:ce: or if It be not open so as to admit of such servi'-'e, then by leaving them at the attorney's residence, with some person of suitable age and discretion, and if his residence be not known, then by put- ting the same, inclosed in an envelope, into tiie postoffice, directed to such attorney; 2. If upon a party, it may be made by leaving the notice or other paper at his residence, between §§ 1012,1014 NOTICE, SERVICE OF PAPERS. 408 the hours of eight in the morning and six in the evening, with some person of suitable age and dis- cretion; and if his residence be not known, by putting the same, inclosed in an envelope, into the postoffice, directed to such party. Service, on attorney: Sec. 1015. § 1012. Service by mail may be made, where the person making the service, and the person on Avhom it is to be made, reside or have their of- fices in diiferent places, between which there is a regular communication by mail. [Amendment ap- proved March 24, 1874; Amendments 1873-4. p. 343. In effect July 1, 1874.] § 1013. In case of service by mail, the notice or other paper must be deposited in the postoffice, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service is complete at the time of the deposit, but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty- five miles distance between the place of deposit and the place of address; such extension, however, not to exceed ninety days in all. [Amendment ap- proved March 24, 1874; Amendments 1873-4, p. 343. In effect July 1, 1874.] Distance: Sec. 1005. § 1014. A defendant appears in an action when: he answers, demurs, or gives the plaintiff writ- ten notice of liis appearance, or when an attorney gives notice of appearance for him. After appear- ance, a defendant or his attorney is entitled to ao tice of all subseciuent proceedings of whicli nolice 409 NOTICE, SERVICE OP PAPERS. §§ 1015-1017 is required to be given. But where a defendant has not nppeared. servioo of notice of papers need not be made upon him unless he is imprisoned for AN'ant of bail. Appearance, waiver of summons: Sees. 406, 416. Notice of subsequent proceedings, how given: 8ec. 1015. § 1015. When a plaintiff or a defendant, who has appeared, resides out of the State, and lias no attorney in tlie action or proceeding, tlie service may be made on the cierlv for him. But in all cases where a party has an attorney in the acHon or jH-oceeding, the service of papers, when re quired, must be upon the attorney instead of the party, except of subpoenas, of writs, and other process issued in the suit, and of papers to bring liini into contempt. Attorney, authority of: Sec. 283; duties of, sec. 282; disbarred, when, see sees. 287 to 299. Service, hoAv made: Sec. 1011. Exception of process and contempt: Sec. 1016. § 1016. The foregoing provisions of this chap- ter do not apply to the service of a summons or otlier process, or of any paper to bring a party into contempt. § 1017. Any summons, writ, or order, in any civil suit or proceeding, and all other papers re- quiring service, may be transmitted by telegraph for service in any place, and the telegrapiiic ropy of such writ, or order, or paper, so transmitted, may be served or executed by the officer or person to whom it is sent for that purpose, and returned by him, if any return be requisite, in the same manner, and with the same force and effect, in all respects, as the original thereof might be if de Code Civ. Proc— 35. § 1017 NOTICE, SERVICE OP PAPERS. 410 livered to hira; and the oflBcei* or person serving or executing the same has the same authority, and is subject to the same liabilities, as if the co]:y were the original. The original, when a writ or order, must also be filed in the court from which it was issued, and a certified copy thereof must be preserved in the telegraph office from which it was sent. In sending it, either the original or the certified copy may be used by the operator tor that purpose. Whenever any document to be sent by telegraph bears a seal, either private or official, it is not necessary for the operator, in send'ug the same, to telegraph a description of the seal, or any words or device thereon, but the same may be expressed in the telegraphic copy by the let- ters "L. S." or by the word "seal." 411 OP COSTS. $ 1021 CHAPTER VI. OF COSTS. § 1021. Compensation of attorneys. Costs to parties. § 1022. When allowed, of course, to the plaintiff. § 1023. Several actions brought on a single cause of action can carry costs in but one. § 1024. Defendant's costs must be allowed, of course, in certain cases. § 1025. Costs, when in the discretion of the court. § 1026. When the several defendants are not united in in- terest, costs may be served. § 1027. Costs of appeal discretionary with the court, in certain cases. § 1028. Referee's fees. § 1029. Continuance, costs may be imposed as condition of. § 1030. Costs when a tender is made before suit brought. § 1031. Costs in action by or against an administrator, etc. § 1032. Costs in a review other than by appeal. § 1033. Filing of, and affidavit, to bill of costs. § 1034. Costs on appeal, how claimed and recovered. § 1035. Interest and costs must be included by the clerk in the judgment. § 1036. When plaintiff is a non-resident or foreign corpora- tion, defendant may require security for costs. § 1037. If such security be not given, the action may be dis- missed. § 1038. Costs when State is a party. § 1039. Costs when county is a party. § 1021. The measure aiid mode of compensa- tion of attorneys and counsellors at law is left to the agreement, express or implied, of the part'es; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter pro- vided. Foreclosure, counsel fees on: Sec. 1500. See post appendix, p. 8G3. Contested election, costs: See sec. 1125. Eminent domain, costs: Sec. 1255. Action on fencing-bond, counsel fees: Sec. 1251. ^Mechanics' liens.— Costs and counsel fees: Sec. 1195. §§1022, 1023 OF COSTS. 412 Partition.— Costs and counsel fees: Sees. 768, 796, 798, 801. Probate matters.— Attorneys' fees: Sec. 1718. Costs as to homestead, etc.: Sec. 1485; revocation of probate: Sec. 1332. Shorthand reporter's fees: Sec. 274. Executor, etc. — Costs in actions against: Sec. 1509; on reference, sec. 1508; when claim allowed in part, sec. 1503; action by executor against es- tate, sec. 1510; winding up estate, sec. 1616. § 1022. Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the fol- lowing cases: 1. In an action for the recovery of real prop- erty: 2. In an action to recover the possession of personal property, where the value of the prop- erty amounts to three hundred dollars or over; such value shall be determined by the jury, court, or referee by whom the action is tried; 3. In an action for tlie recovery of money or damages, when plaintiff recovers three hundred dolars or over; 4. In aspecial proceeding; 5. In an action which involves the title or pos- session of real estate, or the legality of any tax. impost, assessment toll, or municipal fine. Costs discretionary, when: Sees. 1025, 1027. Subdivision 2. Personal property, value: Sec. 1025. z Subdivision 3. Money or damages: Sec. 1025. Subdivision 4. Special proceeding, generally: Sees. 1063-1822. Act requiring securityfor costs in libel and slan- der: See post, Appendix, p. 861. § 1023. When several actions are brought on one bond, undertali;ing, promissory note, bill of ex- 413 OF COSTS. §§ 1024-1023 change, or other iiistrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as de- fendants in tlie same action, no costs can be al- lowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other actions were, at the commencement of the previous action, openly within this State; but the disbursements of the plaintiff must be allowed to him in each action. Several parties, who might have been jojned as defendants: Sec. 383. § 1024. Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in section ten hundred and twenty-two, and in special proceedings. Special proceedings: Sees. 1063-1822. § 1025. In other actions than those mentioned In section ten hundred and tweuty-two, costs may be allowed or not, and, if allowed, may be appor- tioned between the parties, on the same or adverse sides, in the discretion of the court; but no costs can be allowed in an action for the recovery of money or damages when tlie plaintiff recovers less than three hundred dollars, nor in an action to recover the possession of personal property, when the value of the property is less than three hun- dred dollars. Arbitration and award, costs on: See post, sec. 12SG. § 1026. When there are several defendants in the actions mentioned in section ten hundred and twenty-two, not united in interest, and making separate defenses by separate answers, and plain- tiff fails to recover judgment against all, the §§ 1027-1030 OF COSTS. 414 court must award costs to such of the defendants as have judgmeut in their favor. Judgment for some defendants: Sec. 578. Several defendants: See sec. 1023. § 1027. In the following cases, the costs of ap- peal are in the discretion of the court: 1. When a new trial is ordered; 2. When a judgment is modified. p, § 1028. The fees of referees are five dollars to each for every day spent in the business of the reference; but the parties may agree, in writing, upon liny other rate of compensation, and there- upon such rate shall be allowed. Reference, generally: Sees. 638-645. Referees in partition, compensation of: Sees. 768, 796. § 1029. When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the court or referee, as a con- dition of granting the same. Postponement, generally: Sees. 595, 596. § 1030. When, in an action for the recovery of money only, the defendant alleges in his answer that before the commencement of the action, he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court for plaintiff the amount so tendered, and the alle- gation be found to be true, the plaintiff cannot re- cover costs, but must pay costs to the defendant. Tender: Sec. 2076. Offer to compromise: Sec. 997. Deposit in court: Sees. 572-57-1; sec. 1024, 415 OF COSTS. §§ 1031-1033 § 1031. In an action prosecuted or defended by an executor, administrator, trustee of express trust, or a person expressly authorized by statute, costs may be recovered as in action by and against a person prosecuting or defending, in his own right; but such costs must by the judgment be made chargeable only upon the estate, fund, or party represented, unless the court directs the same to be paid by the plaintiff or defendant, per- sonally, for mismanagement or bad faith in the action or defense. Costs against executor, etc.: Sees. 1508, 1509. § 1032. When the decision of a court of in- ferior jurisdiction in a special proceeding is brought before a court of higher jurisdiction for a review, in any other way than by appeal, the same costs must be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. Special proceedings, generally: Sees. 1063-1822. Decision of inferior court reviewed: Sees. 1067- 1110. Costs on appeal: Sees. 1027, 1034. § 1033. The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve upon the adverse party, within five days after the verdict or notice of the decision of the court or referee— or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made— a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his attorney, stating that to the best of his knowledge and be- §§ 1034-1036 OP COSTS. 416 lief the items are correct, and tliat the disburse- ments have been necessarily incurred in the action or proceeding. A party dissatislied with the costs claimed, may, within live days after notice of fil- ing of the bill of costs, file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge thereof at cham- bers. [Amendment approved March 24, 1874; Amendments 1878-4, p. 343. In effect July 1, 1874.] Shorthand reporter's fees: Sec. 274. § 1034. Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerli below, deliver to such cleric a memorandum of his costs, verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment. Remittitur: Sec. 958. § 1035. The clerk must include in the judgment entered up by him, any interest on the verdict or decision of tlie court, from the time it was ren- dered or made, and the costs, if the same have been taxed or ascertained; and he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blanlv, left in the judgment for that purpose, and must make a similar insertion of the costs in the copies and docket of the judgment. § 1036. When the plaintiff in an action resides out of the State, or is a foreign corporation, secu- rity for the costs and charges, which may be awarded against such plaintiff, may be required by the defendant. When required, all proceed- ings in the action must be stayed until an under- taking, executed by two or more persons, is filed 417 OP COSTS. §§ 1037-1039 with the clerk, to the effect that they Avill pay such costs and charges as may be awarded against the plaintiff by judgment, or in the pro- gress of the action, not exceeding the sum of three hundred dollars. A new or an additional under- taking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed un- til such new or additional undertaking is exe- cuted and filed. Qualification of sureties: Sec. 1057. § 1037. After the lapse of thirty days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as re- quired has been filed, the court or judge may or- der the action to be dismissed. § 1038. When the State is a party, and costs are awarded against it, they must be paid out of the State treasury. No security required of State: Sec. 1058. § 1039. When a county is a party, and costs are awarded against it, they must be paid out of the county treasury. No security required of county: Sec. 1058. §§ 1045-1047 GENERAL PROVISIONS. 418 CHAPTER VII. GENERAL PROVISIONS. § 1045. Lost papers, how supplied. § 1046. Papers witbout the title of the action, or with de- fective title, may be valid. § 1047. Successive actions on the same contract, etc. § 1048. Consolidation of several actions into one. § 1049. Actions, when deemed pending. § 1050. Actions to determine adverse claims, and by sure- ties. § 1051. Testimony, when to be taken by the clerk. § 1052. The clerk must keep a register of actions. § 1053. Two or three referees, etc., may do any act. § 1054. The time within which an act is to be done may be extended. § 1055. Actions against a sheriff for official acts. § 1056. Actions may be prosecuted in the Spanish language in certain counties. § 1057. Undertaking mentioned in this Code, requisites of. § 1058. People of State not required to give bonds when State is a party. § 1059. Surety on appeal substituted to rights of judgment creditor. § 1045. If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original. Lost certificates of deposit, statute relating to actions on: See post. Appendix, p. 874. § 1046. An alfidavit, notice, or other paper, Avithout tlie title of the action or proceeding in which it is made or with a defective title, is as valid and effectual for any purpose as if duly en- titled, if it intelligibly refer to such action or pro- ceeding. § 1047. Successive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom. Action defined: Sec. 22. 419 GENERAL PROVISIONS. §§ 1048-1053 § 1048. Whenever two or more actions are pending at one time between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated. § 1049. An action is deemed to be penanig from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. § 1050. An action may be brought by one per- son against another for the purpose of deter- mining an adverse claim, which the latter malies agamst the former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to sat- isfy a debt due to the other, for which plaintiff is bound as a surety. Quieting title to realty: Sec. 738. § 1051. On the trial of an action in a court of record, if there is no shorthand reporter of the court in attendance, either party may require the clerk to take down the testimony in writing. § 1052. The clerk must keep among the records of the court a register of actions. He must enter therein the title of the action, with brief notes under it, from time to time, of all papers filed and proceedings had therein. Records of the court: See sees. 6G8, 672, 683. § 1053, When there are three referees, or tliree arbitrators, all must meet, but two of them may do any act which might be done by all. References and trials by referees: Sees. 638-645. §§ 1054, 1055 GENERAL PROVISIONS. 420 § 1054. When an act to be done, as provided in tliis Code, relatey to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation of statements, or of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this Code may be extended, upon good cause shown, by the judge of the Superior Court in and for the county in which the action is pending, or by the judge who presided at the trial of said action; but such extension shall not exceed thirty days, without the consent of the adverse party; except that when it appears to the judge to whom said application is made, that the attorney of record for the party applying for said extension is actually engaged in attendance upon a session of the legislature of this State, as a member thereof; in which case it shall be the duty of said judge to extend said time until said session of the legislature adjourns, and thirty days thereafter. [Amendment approved January 31, 1895; Stats. 1895, p. 12. In effect January 31, 1895.] Time, order extending.— Time, generally: Sees. 10-13. Computation of time: See ante, sec. 12. § 1055. If an action be brought against a sher- ifi.' for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment I'ecovered therein shall be conclusive evidence of liis right to recover against such sureties; and the court ma3% on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs. [Amendment approved April 15, 1880; Amend- ments 1880. p. 73. In effect April 15, 1880.] 421 GENERAL PROVISIONS. § 1056 § 1056, In all cases where an undertaking or bond, with any number of sureties, is authorized or required by any provision of this Code, or of any law of this State, any corporation with a paid up capital of not less than one hundred thousand dollars, incorporated under the laws of this or any other State of the United States for the pur- pose of malvin.i;-, guaranteeing, or becoming a sure- ty upon bonds or undertalvings required or author- ized by law, or which, by the laws of the State where it was originally incorporated has such power, and which shall have complied with all the requirements of the law of this State regulating the formation or admission of these corporations to transact such business in this State, may become and shall be accepted as security or as sole and sufficient surety upon such undertalving or bond, and such corporate surety shall be subject to all the liabilities and entitled to all the rights of natural persons' sureties; provided, that the in- surance commissioner shall have the same juris- diction and powers to examine the affairs of such corporations as he has in other cases; shall re- quire them to file similar statements and issue to thein a similar certificate. And Avhenever the liabilities of any such corporation shall exceed its assets, the insurance commissioner shall re- quire the deficiency to be paid up in sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he sliall publish the same once a week for three weeks, in a daily San Francisco paper. And, until such deficiency is paid up, such company shall not do business in this State. In estimating the condition of any sucli company, the commis- sioner shall allow as assets only such as are al- lowed under existing laws at the time, and shall ehaige as linbilities, in addition of eighty per Code Civ. Proc —36. § 1057 GENERAL PROVISIONS. 422 cent of the capital stock, all outstanding indebted- ness of the companj^ and a premium reserve equal to iifty per centum of the premiums charged by- said company on all risks then in force. [New section added March, 1SS9; Stats. 1889, p. 215. In effect March IG, 1880.] Section 105G, relating to prosecuting actions in the Spanish language in certain counties, was re- pealed by act of April IG, 1880; Amendments 1880, 111 (Ban. ed. 347). Took effect immediately. § 1057. In any case where an undertaking or bond is authorized or required by any law of this State, the officer taking the same must, except in the case of such a corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each residents and householders, or freeholders, witliin the State, and are each worth the sum spe- cified in the undertaking or bond, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking or bond ex- ceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than the amount specified in the undertaking or bond, if the whole amount be equivalent to that of two sufficient sureties. Any corporation such as is mentioned in the next preceding section, may become one of such sureties. No such corporation shall be accepted in any case as a surety when- ever its liabilities shall exceed its assets as ascer- tained in the manner provided in section ten hun- dred and fifty-six. [Amendment approved March IG, 1880: Amendments 1889, p. 21 G. In effect March IG, 1SS9.] Propei-ty exempt from execution: Sec. GOO. Applied to guardians: Sec. 1809. 423 GENERAL PROVISIONS §§ 1058, 1059 § 1058. lu any civil action or proceeding wherein the State, or the people of the State, is a party plaintiff, or any State ofhcer, in his official capacity, or in behalf of the State, or any county, city and county, city, or town, is a party plaintiff or defendant, no bond, written undertaking, or se- curity can be required of the State, or the people thereof, or any officer thereof, or of any county,, city and county, city, or town; but on complying with the other provisions of this Code, the State, or the people thereof, or any State officer acting in his official capacity, have the same rights, rem- edies, and benefits as if the bond, undertaliing, or security were given and approved as required by this Code. [New section approved April 15, 1880: Amendments 1880, p. 76. In effect April 15, 1880.] Costs against State or county: Sees. 1038, 1039. § 1059. Whenever any surety on an undertak- ing on appeal, executed to stay proceedings upon a money judgment, pays the judgment, either with or without action, after its affirmation by the ap- pellate court, he is substituted to the rights of the judgment creditor, and is entitled to control, en- force, and satisfy such judgment in all respects as if he had recovered the same. [New section ap- proved March 24, 1874; Amendments 1873-4, p. 344. In effect July 1, 1874.] PART III OF SPECIAL PKOOEBDINGS OF A CIVIL NATURE. Title I. Of Writs of Mandate and Prohibition, §§ 1067-1110. II. Of Contesting Elections. §§ 1111-1127. III. Of Summary Proceedings, §§ 1232-1178. TV. Of Enforcement of Liens, §§ 1180-1206. V. Of Contempt, §§ 1209-1222. \I. Of Voluntary Dissolution of Corporations, §§ 1227-1223. VII. Of Eminent Domain, §§ 1237-1263. VITI. Of Escheated Estates, §§ 1269-1272. IX. Of Change of Name, §§ 1275-1278. X. Of Arbitrations, §§ 1281-1290. XI. Of Proceedings in Probate Courts, §§ 1294-1809. XII. Of Sole Traders, §§ 1811-1821. PRELIMINARY PROVISIONS. § 1063. Parties, how designated. § 1064. Judgment and order same meaning as in civil ac- tions. § 1063. The party prosecuting a special pro- ceeding may be known as the plaintiff, and the adverse party as the defendant. Plaintiff and defendant: Sec. 308. 4 425 WRIT OF REVIEW. §§ 1064, 1067 § 1064. A judgment in a special proceeding is the final determination of the rights of the par- ties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding. Judgment, definition of: Sec. 577. Motion and order: Sec. 1003. TITLE I. OF WRITS Of review, MANDATE AND PROHIBITION. Chapter I. Writ or review. II. "Writ of mandate. III. Writ of prohibition. IV. Writs of review, mandate, and prohi- bition may issue and be heard at chambers. V. Rules of practice and appeals. CHAPTER I. WRIT OP REVIEW. § 1067. Writ of review defined. § 1068. When and bv what courts granted. § 1069. Application for, how made. § 1070. The writ to be directed to the inferior tribunal, etc. § 1071. Contents of the writ. § 1072. Proceedings in inferior court may be stayed, or not. § 1073. Service of the writ. § 1074. The review under the writ, extent of. § 1075. A defective return of the writ may be perfected. Hearing and judgment. § 1076. Copy of judgment must be sent to the inferior tri- bunal. § 1077. Judgment rolls. § 1067. The writ of certiorari may be denom- inated the writ of review. [Amendment approved §§ 1068-1071 WRIT OF REVIEW. 426 March 24, 1874; Amendments 1873-4, p. 345. In effect July 1, 1874.] § 1068. A writ of review may be granted by any court, except a police or justice's court, when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. Certiorari, extent of review on: Sec. 1074. Supreme Court is always open for issuing this writ: Sec. 47. Court commissioners, power to hear and deter- mine ex parte motions for writ: Sec. 259. Returnable.— Writ may be made returnable at any time: Sec. 1108. See sec. 1070. § 1069. The application must be made on affi- davit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an or- der to show cause why it should not be allowed, or may grant the writ without notice. Application, Supreme Ct. rule 28. Issuance, only upon order of the court, Supreme Ct. rule 23. § 1070. The writ may be directed to the in- ferior tribunal, board, or officer, or to any other person having the custody of the record or pro- ceedings to be certified. When directed to a tri- bunal, the cleric, if there be one, must return the writ with the transcript required. § 1071. The writ of review must command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the record and proceedings 427 WRIT OF REVIEW. §§ 1072-1076 (.describing or referring to them witti convenient certainty), that the same may be reviewed by the court; and requiring the party, in the meantime, to desist from further proceedings in the matter to be reviewed. At specified time, see Supreme Ct. rule 23. § 1072. If a stay of proceedings be not intend- ed, the words requiring the stay must be omitted from the writ; these words may be inserted or omitted, in the sound discretion of the court; but if omitted, the power of the inferior court or of- ficer is not suspended or the proceedings stayed. § 1073. The writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court. Service of writ, on public tribunal, etc., and proof of same. Supreme Ct. rule 28. Service of summons: Sec. 410 et seq. § 1074. The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. § 1075. If the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, or annulling, or modifying the proceedings below. § 1076. A copy of the judgment, signed by the clerk, must be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. §§ 1077, 1085 WRIT OF MANDATE. 428 § 1077. A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll. Appeal: Sec. 939. CHAPTER II. WRIT OF MANDATE. § 1084. Mandate defined. § 1085. When and by what court issued. § 1086. Writ, when and upon what to issue. § 1087. Must be either alternative or peremptory. Sub- stance. § 1088. If the application be without notice, the alternative writ may issue; otherwise, the peremptory. Notice and default. § 1089. The adverse party may answer under oath. § 1090. If an essential question of fact is raised, the court may order a jury trial. § 1091. The applicant may demur to the answer or counter- vail it by proof. § 1092. Motion for new trial, where made. § 1093. The clerk must transmit the verdict to the court where the motion is pending, after which the hearing shall be had on motion. § 1094. If no answer be made, or if the answer raise no material issue of fact, the hearing must be be- fore the court. § 1095. If the applicant succeed, he may have damages, costs, and a peremptory mandate. § 1096. Service of the writ. § 1097. Penalty for disobedience to the writ. § 1084. The writ of mandamus may be de- nominated a writ of mandate. [Amendment ap- proved March 24, 1874; Amendments 1873-4, p. 345. In effect July 1, 1874.] § 1085. It may be issued by any court, except a justice's or police couit, to any inferior tribunal, corporation, board, or person, to compel the per- formance of an act which the law, specially en- joins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to 429 WRIT OF MANDATE. §§ 1086-1088 the use and eujoyment of a right or office to which he is entitled, and from which he is unUiwfully precluded by such inferior tribunal, corporation, board, or person. Supreme Court always open: Sec. 47. Superior Court always open: Sec. 73. Hearing, etc.. at chambers: Sec. 166. Court commissioners, power to hear and deter- mine ex parte motions for writ: Sec. 259. lieturnable, when may be made: Sec. 1108. § 1086. The ^\Tit must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested. Issued, Supreme Court, see Supreme Ct. rule 28. § 1087. The writ may be either alternative or peremptory. The alternative writ must state gen- erally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other spe- cified time, to do the act required to be performed, or to show cause before the court at a specified time and place, why he has not done so. The per- emptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted, and a return day inserted. Peremptory writ, without alternative: Sec. 1088; Supreme Ct. rule 28. Alternate writ. Supreme Court rule 31. § 1088. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative must be first issued; but if the application be upon due notice, §§ 1089-1091 WRIT OF MANDATE 43(3 and the writ be allowed, the peremptory may be issued in the first instance. The notice of the ap- plication, when 0ven, must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not. Proof of service, on public body. Supreme Ct. rule 28. § 1089. On the return of the alternative, or the day on which the application for the writ is no- ticed, the party on whom the writ or notice has been served may show cause by answer unde^* oath, made in the same manner as an answer to a complaint in a civil action. Answer: Sec. 437. § 1090. If an answer be mn^e, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the sub- stantial rights of the parties, and upon the sup- posed truth of the allegation of which the appli- cation for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had. and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any dam- ages which the applicant may have sustained, in case they find for him. § 1091. On the trial the applicant is not pre- cluded by the answer from any valid objection to Its sufficiency, and may countervail it by proof, either in direct denial or by way of avoidance. 431 WRIT OF MANDATE. §§ 1092-1096 § 1092. The motion for a new trial must be made in the court in whicli the issue of fact is tried. § 1093. If no notice of a motion for a new trial be given, or, if given, the motion be denied, the clerk, within Hve days after rendition of the ver- dict or denial of the motion, must transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial; after which either party may bring on the argument of the application, upon reaiionable notice to the adverse party. § 1094. If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue immaterial statements, not affecting the sub- stantial rights of the parties, the court must pro- ceed to hear or fix a day for hearing the argu- ment of the case. [Amendment approved March 24, 1874; Amendments 1873-4, p. 345. In effect July 1, 1874.] § 1095. If judgment be given for the applicant, he may recover the damages which he has sus- tained, as found by the jury, or as may be deter- mined by the court or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded with- out delay. Costs: Sees. 1021 et seq. § 1096. The writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body, is service upon the board §§ 1097, 1102 WRIT OF PROHIBITION. 432 or body, whether at the time of the service the board or body was in session or not. Service of summons: Sees. 410 et seq. § 1097. AVhen a peremptory mandate has been issued and directed to any inferior tribunal, cor- poration, board, or person, if it appear to the court that any member of such tribunal, corporation, or board, or such person upon whom the writ has been personally served, has, Avithout just excuse, re- fused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a re- fusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ. [Amendment approved March 24, 1874; Amendments 1873-4, p. 345. In effect July 1, 1874.] Contempt, generally: Sec. 1209 et seq. CHAPTER III. WRIT OF PROHIBITION. § 1102. Prohibition defined. § 1103. Where and when issued. § 1104. Writ may be alternative or peremptory. Form of. § 1105. Certain provisions of the preceding chapter appli- cable. § 1102. The writ of prohibition is the counter- part of the writ of mandate. It arrests the pro- ceedings of any tribunal, corporation, board, or person, whether exercising functions .i"dicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, cor- poration, board, or person. fAmendment approved i . .iiM..- .....; 433 WRIT OF PROHIBITION. §§ 1103-1105 Miu'cli V>, 1S81; stats. 1881, y. 20. lu effect March 3, 1881.] Mandate: Sec. 1104 et seq. § 1103. It may be issued by auy court except ])olice or justices' courts, to an inferior tribunal or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon alhdavit, ou the application of the person beneficially interested. :Mandate: Sees. 1084 et seq. Seal necessary to a writ: Sec. 1.j2. § 1 104, The writ must be either alternative or peremptory. The alternative writ must state gen- erallj' the allegation against the party to whom it is directed, and command such party to desist or re- frain from further proceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to shoAv cause before such court, at a specified time and place, why such party should not be absolutely re- strained from any further proceedings in such ac- tion or matter. The peremptory writ must be in a similar form, except that the words requiring the pary to show cause why he should not be abso- lutely restrained, etc., must be omitted, and a re- turn day inserted. Compare sec. 1087. § 1105. The provisions of the preceding chap- ter, except of the four first sections thereof, ap- ply to this proceeding. Code Civ. Proc— 37. ?§ 1108, 1110 RULES OF PRACTICE CHAPTER IV. WRITS OF REVIEW, MANDATE, AND PROHIBITION MAY ISSUE AND BE HEARD AT CHAMBERS. § 1108. Writs of review, mandate, and prohibition may is- sue and be heard at chambers. § 1108. Writs of review, mandate, and prohibi- tion issued bj' the Supreme Court, or by a Superior Court, may, in the discretion of the court issu- ing the writ, be made returnable and a hearing thereon be had at any time. [Amendment ap- proved April 15, 18S0; Amendments 1880, p. 73. In effect April 15, 1880.] Powers of judges at chambers: Sees. 165, 166. CHAPTER V. RULES OF PRACTICE AND APPEALS. § 1109. Certain provisions of part two applicable. § 1110. Same. § 1109. Except as otherwise provided in this ti- tle, the provisions of part two of this Code, are ap- l^lieable to, and constitute the rules of practice in the proceedings mentioned in this title. See ante, sees. 307 et seq. § 1110. The provisions of part two, of this Code, relative to new trials and appeals, except in so far as they are inconsistent Math the provisions of this title, apply to the proceedings meniioned in this title. See sees. 650 et seq.; and sees. 936 et seq. 435 CONTESTING CERTAIN ELECTIONS. § 1111 TITLE II. OF CONTESTING CERTAIN ELECTIONS. § 1111. Who may contest, and grounds of contest. § 1112. Irregularity and improper conduct of judges, when to annul elections. § 1113. When not to. § 1114. Illegal votes, when not to vitiate election. § 1115. Proceedings on contest. § 1113. Statement of cause of contest. When based on re- ception of illegal votes, contestant to deliver to re- spondent a list of votes claimed to be illegal. § 1117. Statement of cause of contest; want of form not to vitiate. § 1118. County judge to hold special term for trial of con- test. § 1119. Clerk to issue citation to respondent. § 1120. Witnesses— attendance of, how enforced. § 1121. Power of court. Adjournment of court. § 1122. Rules to govern court in trial of contest. § 1123. Court may declare who was elected. § 1124. Fees of officers and witnesses. § 1125. Costs. § 1126. Appeal. § 1127. When election void and office vacant. § 1111. Any elector of a county, city and coun- ty, city, or of any political subdivision of either, may contest the right of any person declared elect- ed to an office to be exercised therein, for any of the foUoAving causes: 1. For malconduct on the part of the board of judges, or any member thereof; 2. When the person wlioso right to the office is contested Avas not, at the time of the election, eligible to such office; 3. When the person whose right is contested has given to any elector or inspector, judge, or clerk of the election, any bribe or reward, or has offered any such bribe or reward for the puii)ose of pro- curing his election, or has committed any other of- §§ 1112-1114 CONTESTING ELECTIONS. 436 fense agaiust the elective franchise, deliiied in title foiii', part one, of the Penal Code; 4. On account of illegal votes. [Amendment approved March 11, 1876; Amendments 1875-6, p. 100.] Malcouduct of judges: Sees. 1112, lllo. Legislature, contesting election of members of: Polit. Code, sec. 273; of governor, etc., Id., sec. 288. Office, usurpation of, etc.: Sec. 802. Subd. 3. Offense against elective franchise: Pen. Code, sees. 41 et seq. § 1112. No irregularity or improper conduct in the proceedings of the judges, or any of them, is such malcouduct as avoids an election, unless the irregularity or improper conduct is such as to pro- cure the person whose right to the office is con- tested TO be declared elected, when he had not re- ceived the highest number of legal votes. § 1113. When any election held for an office exercised in and for a county is contested on ac- count of any malcouduct on the part of the board of judges of any township election, or any mem- ber thereof, the election cannot be annulled and set aside upon any proof thereof, unless the rejection of the vote of such tOAvnship or townships would chajige the result as to such office in the remaining vote of the county. § 1114. Nothing in the fourth ground of contest specified in section eleven hundred and eleven, is to be so construed as to authorize an election to be set aside on account of illegal votes, unless it appear tliat a number of illegal votes has been given to the person whose riglit to the office is con 437 CONTESTING ELECTIONS. §§ 1115, 1116 tested, Avliicli. if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same of- fice, after deducting therefrom the illegal votes which may be shown to have been given to such other person. § 1115. When an elector contests the right of any person declared elected to such office, he must, within forty days after the return day of the elec- tion, file with the county clerk a written state- ment, setting forth specifically: 1. The name of the party contesting such elec- tion, and that he is an elector of the district, coun- ty, or township, as the case may be, in which such election was held; 2. The name of the person whose right to the office is contested; 3. The office; 4. The particular grounds of such contest. Which statement must be verified by the affi- davit of the contesting party, that the matters and things therein contained are true. Statement of contestant: See sees. 1116, 1117. Abbreviations and numerals: Sec. 186. § 1116. When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the person whoso election is contested, which, if taken from him, will reduce the number of his legal votes be- low the number of legal votes given to some other person for the same office; but no testimony can be received of any illegal votes, unless the partj^ con- testing such election deliver to the opposite party, at jeast three days before such trial, a written list of the number of illegal votes, and by whom given. §§ 1117-1120 CONTESTING ELECTIONS. 438 vrhich lie intends to prove on such trial; and no tes- timony can be received of auj' illegal votes except such as are specified in such list [Amendment approved April 15, 1880; Amendments 1880, p. 74. In effect April 15, 1880. j § 1117. No statement of the grounds of contest will be rejected, nor the proceedings dismissed by any court for want of form, if the grounds of con- test are alleged with such certainty as win advise the defendant of the particular proceeding or cause for which such election is contested. § 1118. Upon the statement being filed, the county clerk must inform the Superior Court of the county thereof, which shall thereupon order a jjl)ecial session of such court to be held at the court room, on some day to be named by it, not less than ten nor more than twenty days from the date of such order, to hear and determine such contested election. [Amendment approved April 15, 1880; Amendments 1880, p. 75. In effect April 15, 1880.] § 1119. The clerk shall thereupon issue a cita- tion for the person, whose right to the office is con- tested, to appear at the time and place specified in the order, which citation must be delivered to the sheriff, and served either upon the party in person, or, if he cannot be found, by leaving a copy there- of at the house where he last resided, at least five days before the time so specified. [Amendment approved April 15, ISSO; Amendments 1880, p. 75. In effect April 15, 1880.] I § 1120. The clerk must issue subpoenas for witnesses at the request of either party, which must be served as other subpoenas; and the Su- perior Court shall have full power to issue attach- 439 CONTESTING ELECTIONS. §§ 1121-1124 raents to compel the attendance of witnesses who have been subpoenaed to attend. [Amendment approved April 15, ISSO; Amendments 1880, p. 75. In effect April 15, 1880.] Subpoenas, issuance, service, etc.: Sees. 1985- 1987; also see sees. 1988-1990; disobedience, penal- ty, etc., sees. 1991-1992. Compelling attendance of witnesses: Sec. 1993 et seq. § 1121. The court must meet at the time and place designated, to determine such contested elec- tion, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended, and may also con- tinue the trial, before its commencement, for any time not exceeding twenty days, for good cause shown by either party upon atfidavit, at the costs of the party applying for such continuance. § 1122. The court must be governed, in the trial and determination of such contested election, by the rules of law and evidence governing the deter- mination of questions of law and fact, so far as the same may be applicable; and may u.smiss the proceedings if the statement of the cause or causes of the contest is instifficient, or for want of prosecution. After hearing the proofs and alle- gations of the parties, the court must pronounce judgment in the premises, either confirming or an- nulling and setting aside such election. § 1123. If in any such case it appears that an- other person than the one returned has the high- est number of legal votes, the court must declare such person elected. § 1124. [Repealed April 15, 1880; Amendments 1880, p. 7G.] §§ 1125-1127 CONTESTING ELECTIONS. 440 § 1125. If the proceedings are dismissed for iii- suflicieiicy, or want of prosecutiou, or the election is by the court confirmed, judgment must be ren- dered against the party contesting such election, for costs, in favor of the party whose election was contested; but if the election is annulled and set aside, judgment for costs must be rendered against the party whose election was contested, in favor of the party contesting the same. Primarily, each party is liable for the costs created by i^.mself , to the officers and witnesses entitled thereto, which may be collected in the same manner as similar costs are collected in other cases. [Amendment approved April 15, 1880; Amendments 1880, p. 75. In effect April 15, 1880.] Costs, in special proceedings: Sees. 1022, subd. 4, 1024; generally, sec. 1021 et seq. § 1126. Either party, aggrieved by the judg- ment of the court, may appeal therefrom to the Su- preme Court, as in other cases of appeal thereto from the Superior Court. [Amendment approved April 15, 1880; Amendments 1880, p. 75. In etfect April 15, 1880.] Appeals to Supreme Court: Sec. 963; appeals, generally, sec. 936 et seq.; from county court, sec. 966. § 1127. Whenever an election is annulled or set aside by the judgment of the Superior Court, and no appeal has been taken within ten days there- after the commission, if any has issued, is void, and the office vacant. [Amendment ap- proved April 15, 1880; Amendments 1880, p. 75. In effect Apnl 15. 1880.] CONFESSION OF JUDGMENT. §§ 1132, 1133 TITLE III. OF SUMMARY PROCEEDINGS. Chapter I. Confession of judgment without ac- tion. II. Submitting a controversy without ac- tion. III. Discharge of persons imprisoned on civil process. lA'. Summary proceedings for obtaining possession of real property in cer- tain cases. CHAPTER I. CONFESSION OF JUDGMENT WITHOUT ACTION. S 1132. Judgment may be confessed for debt due or contin- gent liability. § 1133. Statement in writing and form thereof. § 1134. Filing statement and entering judgment. S 1J35. How, in Justices' Courts. § 1132. A judgment by confession may be en- tered witliout action, either for money due or to become due, or to secure any person against con- tingent liability on behalf of the defendant, or both, in the manner prescribed bj^ this chapter. Sucli judgment may be entered in any court hav- ing jurisdiction for like amounts. Judgment by confession: Sec. 1133; in justice's court, sees. 889, 1135. § 1133. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effect: 1. It must authorize the entry of judgment for a specified sum; §§ U34, 1135 CONFESSION OF JUDGMENT. 442 2. If it be for money due, or to become due, it must state concisely tlie facts out of wliich it arose, and show that the sum confessed therefor is justly due, or to become due; 3. If it be for the purpose of securing the plain- tiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same. § 1134. The statement must be filed with the clerk of the court in which the judgment is to be entered, who must indorse upon it, and enter in the judgment book, a judgment of such court for the amount confessed, with ten dollars costs. The statement and affidavit, with the judgment in- dorsed thereupon, becomes the judgment roll. § 1135. In a justice's court, where the court ha^ authority to enter the judgment, the statement may be filed with the justice, who must there- upon enter in his docket a judgment of his court for the amount confessed, with three dollars costs. If a transcript of such judgment be filed with the county clerk, a copy of the statement must be filed with it. Justice's court.— A justice has power to take and enter judgment on confession when the amount confessed, exclusive of interest, does not amount to three hundred dollars: Sec. 112, subd. 6; sees. 114, 889. 443 SUBMITTING A CONTROVERSY. §§ 1138-1140 CHAFTEll II. SUBMITTING A CONTROVERSY WITHOUT ACTION. § 1138. Controversy, how submitted without action. § 1139. Judgment on, as in other cases, but without costs prior to notice of trial. § 1140. Judgment may be enforced or appealed from as in an action. § 1138. Parties to a question in difference, wliich might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which Avould have jurisdiction, if an action had been brought; but it must appear, by affidavit, that the controversy is real, and the proceedings in good faith, to determine the rights of the par- ties. The court must thereupon hear and deter- mine the case, and render judgment thereon, as if an action were depending. Relief. Sec. 580. § 1139. Judgment must be entered in the judg- ment book as in other cases, but without costs for any proceeding prior to the trial. The case, the submission, and a copy of the judgment, con- stitute the judgment roll. Entry of judgment: Sec. 664. Judgment roll: See. 670. § 1140. The judgment may be enforced in the same manner as if it had been rendered in an ac- tion, and is in the same manner subject to ap- peal. Enforcement of judgment: Sec. 684. Appeals: Sec. 9.36 et seq. •il 1143-1 H5 DISCHARGE. HI CHAPTEK 111. DISCHARGE OF PERSONS IMPRISONED ON CIVIL. PROCESS. § 1143. Persons confined may be discharged. § 1144. Notice of application. § 1145. Service of notice. § 1146. Examination before judge. § 1147. Interrogatories may be in writing. § 1148. Oath to be administered. § 1149. Order of discharge. § 1150. If not discharged, prisoner may again apply, when. § 1151. Discharge final. § 1152. Judgment remains in force. § 1153. Plaintiff may order discharge of the prisoner, who shall not thereafter be liable to imprisonment for the same cause of action. § 1154. Plaintiff to advance funds for support of prisoner. i5 1143. Any person confined in jail on an exe- cution i.ssued on a .Inds'nient rendered in a civil action, must be discliar.ned tlierefroni upon tlie conditions in this (•li:ii)ter si)ecitied. § 1144. Sucli person must cause a notice in Avritinii' to be given to the plaintiff, his ag:ent, or attorney, that at a certain time and place he will apply to a jud.ae of the Superior Court of the county in which such person may be confined for the purpose of obtaining" a dischar.ne from his im- l)risonment. | Amendment a improved April 10. 1S80: Amendments 18S0, 114. In effect April Ki ISSO.l Notices: Sec. 1(>l^ 1145. Sucli notice must be served upon tlie VlaiiitilT. liis ajiont or attorney, one day at least \»etor(» tlie hearinji: of the application. Service of notice: Se<', 1015. 145 DISCHAIUJK. ^^ IHG-lloO § 1146. At the time and place specified in the notice, sucii person mnst be talven before sucli judire, Avlio must examine him under oath con- cerning liis estate and property and effects, and tlie disposal thereof, and his ability to pay the judgment for which he is committed; and sucli judge may also hear any otlier legal and pertinent evidence that may be produced l)y the debtor or the creditor. § 1147. The plaintilf in tlie action may, upon such examination, pi-opose to the prisoner any in- terrogatories pertinent to tlie inquirj-; and they must, if re(iuired by him, be proposed and an- swered in writing, and the answer must be signed and sworn to l)y tlie prison(>r. i^ 1148. If, upon the examination, the judge is satisfied that the prisoner is entitled to his dis- cliarge, he must administer to him the following oath, to-Avit: "I, , do solemnly swear that 1 have not any estate, real or personal, to the amount of fifty dollars, except such as is by law cxompred from being talven in execution; and that I liaA'e not anj- other estate now conveyed or con- cealed, or in any way disposed of, with design to secure the same to my use. or to hinder, delay, or defraud my creditors: so help me God." § 1149. After administering the oath, the judge; must issue an order that the prisoner be dis- charged from custody, and the officer, upon the sci-vice of such order, must discharge the prisou- ' ;• fortinvitli. if lie bo im]n-isonod for no other '■;i,use. § 1150. If such judge does not discharge tlie ])risoner, he may apply for his discharge at the end of every succeeding ten days, in the same Code Civ. Proc— 38. §§ 1151-1154 DISCHARGE. 446 mannei' as above provided, and the same proceed- ings must thereupon be had. § 1151. The prisoner, after being so dis- charged, is forever exempted from arrest or im- prisonment for the same debt, unless he be con- victed of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed. § 1152. The judgment against any prisoner who is discharged remains in full force against any estate which may then or at any time after- ward belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner, in like manner as if he i.ad never been committed. § 1153. The plaintiff in the action may at any time order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action, § 1154. Whenever a person is committed to jail on an execution issued on a judgment recov- ered in a civil action, the creditor, his agent or at- torney, must advance to the jailer, on such com- mitment, sutiicient money for the support of the prisoner for one week, and must make the like ad- vance for every successive week of his imprison- ment, and in case of failure to do so, the jailer must forthwith discharge such prisoner from cus- tody; and such discharge has the same effect as if jnade by order of the creditor. I SUMMARY PROCEEDINGS. § 1159 CHAPTER IV. SUMMARY PROCEEDINGS FOR OBTAINING POSSES- SION OP REAL PROPERTY IN CERTAIN CASES. § 1159. Forcible entry defined. § 1160. Forcible detainer defined. § 1161. Unlawful detainer defined. § 1162. Service of notice. § 1163. County Courts have jurisdiction. § 1164. Parties defendant. § 1165. Parties generally. § 1166. Complaint. Judge to fix day for appearance of de- fendant and summons. § 1167. Summons, form and service of. § 1168. Arrest. § 1169. Judgment by default. § 1170. Defendant may appear, etc. § 1171. Trial by jury. § 1172. Showing required of plaintiff in forcible entry or detainer. Of defendant. § 1173. Complaint must be amended in certain cases. § 1174. Verdict and judgment. ■ }_ 1175. Verification of complaint and answer. § 1176. Effect of an appeal upon the judgment. § 1177. Rules of practice. § 1178. Appeals, how taken, etc. § 1179. Relief against forfeiture of lease. § 1159. Every person is s'liilty of a forcible en- try who either— 1. By breakins: open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror, enters npon or into any real property; or, 2. Who, after enterins" peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. Proof required: Sec. 1172. Parties defendant: Sees, 1164, 1165, Force as element: See infra. § 1160 SUMMARY PROCEEDINGS. 448 Previous statutoiy provisions.— "See Stats. 1860, p. 768, sec. 1. Tliis cliapter, relating to forcible entries, forcible detainers, and unlawful detainers, is drawn partly from Stats. 1865-6, 768, and also Stats. 1863, 652. An act concerning forcible en- tries and unlawful detainers was passed by Stats. 1850, 125, amended by Stats. 1852, 158, also by Stats. 1858, 90, also by Stats. 1861, 582, and again by Stals. 1862, 420; but these acts were repealed by Stats. 1863, 652. The decisions cited in this chapter, which were rendered prior to the thirty- second volume of reports, were rendered under Stats. 1850, 425, and acts amendatory thereof. Those rendered since that volume were given un- der the acts of 1863, p. 652, and 1866, p. 768. All these decisions bear more or less upon the pro- visions of this chapter, Avhich, in most respects, is very similar to the previous statutes": Gommis- sioners' note. § 1160. Every person is guilty of a forcible de- tainer who either — 1. Hy force, or by menaces and threats of vio- lence, unlawfully holds and keeps the possession of any real property, whether the same was ac- quired peaceably or otlierwise; or, 2. Who, in the night time, or during the ab- sence of the occupant of any lands, unlawfully en- ters upon real property, and who, nfter demand made for the surrender thereof, for the period of five days refuses to surrender the snme To sncli former occupant. The occupant of real property, witliin tlie mean- ing of tliis subdivision, is one who within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such laiuls. 449 SUMMARY PROCEEDINGS. § 1161 § 1161. A tenant of real property, for a term less thau life, is guilty of unlawful detainer: 1. AVlien he continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is^ let to him, witliout the permission of his landlord, or the successor in estate of his land- lord, if any there be; but in case of a tenancy at will, it must first be terminated by notice, as pre- scribed, in the Civil Code. 2. A"S'here he continues in possession, in person or by subtenant, without permission of his laud- lord, or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuaut to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which IS due, or possession of the property, shall have been served upon him, and if there be a subtenant in actual occupation of the premises, also upon such subtenant. Such notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agri- cultural lands, where the tenant has held over and retained possession for more than sixty days after the expiration of his term without any de- mand of possession or notice to quit by the land- lord, or the successor in estate of his landlord, if any there be, he shall be deemed to be holding by permission of the landlord, or the successor in es- tate of his landlord, if any there be, and shall be entitled to hold under the terms of the lease for another full year, and shall not be guilty of an unlawful detainer during said year, and such holding over for tlie period aforesaid shall be taken and construed as a consent on the part of a tenant to hold for another year. 3. When he continues in possession, in person § 1161 SUMMARY PROCEEDINGS. -IGO or by subtenant, after a neglect or failure to per- form other conditions or covenants of the lease or agreement under which the property is held, in- cluding* any covenant not to assign or sublet, than the one for the payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and if there be a subtenant in actual occupation of the premises, also upon such subtenant. With- in three days after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture. A tenant may tal^e proceedings, similar to those pre- scribed in this chapter, to obtain possession of the premises let to an under-tenant, in case of his unlawful detention of the premises underlet to him. 4. Any tenant or subtenant assigning or sublet- ting or committing waste upon the demised prem- ises, contrary to the covenants of his lease, there- by terminates the lease, and the landlord, or his successor in estate, shall, upon service of three days' notice to quit, upon the person or persons in possession, be entitled to restitution of posses- sion of such demised premises under the provi- sions of this act. [Amendment approved April 1, 1878; Amendments 1877-S, 104. Took effect from passage.] On the same day that the foregoing amendment of section 1101 was approved, another amend- ment of the same section was approved, as fol- lows: -151 SUMMARY PROCEEDINGS § 1161 § 1161. A tenant of real property, for a term less than life, is guilty of an unlawful detainer: 1. AVben lie continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him, Avithoiit permission of his land- lord; but in case of tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code. 2. Where he continues in possession, in person or by subtenants, without permission of his land- lord, after default in the payment of rent, pursu- ant to the lease or agreement under which th'^ property is held, and three days' notice, in wru- ing, reciuiring its payment, stating the amount which is due, or possession of the property, shall have been served upon him; and if there be a sub- tenant in actual occupation of the premises, also upon subtenant. Such notice may be served at any time within one year after the rent becomes due. In all cases of tenancy upon agricultural lands, where the tenant has held over and retain- ed possession for more than sixty days after the expiration of his term, without any demand of possession or notice to quit by the landlord, he shall be deemed to be holding by permission of the landlord, and shall be entitled to hold, under the terms of the lease, for another full j'ear, and shall not be deemed guilty of an unlawful detain- er during said year, and such holding over for the period aforesaid shall be talcen and construed as a consent, on the part of a tenant, to hold for another year. 3. When he continues in possession, in person or by subtenants, after a neglect or a failure to perform other conditions or covenants of the lease or agreement under which the property is held, than the one for the payment of rent, and three ij 1132 SUMMARY PROCEEDINGS. 452 days' iiotice, in writiug, requiriufe- tiie perform- ance ot SUCH couditious or coveuauts, or tlie pos- session ot the propert}', shall have been served upon him; and if there be a subtenant in actual occupation of the premises, also upon such subten- ant. "SA'ithin three days after the service of the notice, the tenant or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in the con- tinuance, may perform the conditions or coven- ants of the lease, or paj^ the stipulated rent, as the case may be, and thereby save the lease from for- feiture; provided, if the covenants and conditions of lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to said lessee or his subten- ant demanding the performance of the violated covenant or conditions of the lease. A tenant may take proceedings similar to those prescribed in this chapter to obtain possession of the premises let to an under-tenant, in case of his unlawful detention of the premises underlet to him. [Amendment approved April 1, 1878; Amend- ments 1877-8, lOG. Took effect from passage.] § 1162. The notices required by the preceding section may be served either: 1. By delivering a copy to the tenant person- ally; or, 2. If he be absent from his place of residence, and from his usual place of business, by leaving a copy with some person of suitable ago and dis- cretion at either place, and sending a copy through the mail addressed to the tenant at his place of residence; or, 3. If such place of residence and business can- not be ascertained, or a person of suitable age or discretion there cannot be found, then by affixing 453 SUMMARY PROCEEDINGS. §§ 1163, 1164 a copy ill a conspicuous place on tlie property, and also delivering; a copy to a person there resid- ing, if such person can be found; and also send- ing a copy through the mail addressed to the ten- ant at the place where the property is situated. Service upon a subtenant may be made in the same manner. [Amendment approved March 24, 1874; Amendments 1873-4, 347. In effect July 1, 1874.] § 1163. The Superior Court of the county in which The property, or some part of it, is situated, shall have jurisdiction of proceedings under this chapter; provided, that justices' courts, within their respective townships, or cities, or cities and counties shall have concurrent jurisdiction with the Superior Courts in cases of forcible entry and detainer, when the rental value does not exceed tweuty-tive dollars per month, and when the whole amount of damages claimed does not ex- ceed two hundred dollars. [Amendment approved March 9, 1880; Amendments 1880, 8. In effect March 9, 1880.] Concurrent jurisdiction of justices' court: Sec. 113, subd. 1. § 1164. No person other than the tenant of the premises and subtenant, if there be one, in the ac- tual occupation of the premises when the com- plaint is filed, need be made parties defendant in the proceeding, nor shall any proceeding abate, nor the plaintiff" be nonsuited for the nonjoinder of any person who might have been made party defendant; but when it appears that any of the parties served with [)rocess, or appearing in the proceeding, are guilty of the offense charged, judgment must be rendered against him. In case a defendant has become a subtenant of the prem- ises in controversy, after the service of the notice §§ 1165, 1166 SUMMARY PROCEEDINGS. 454 provided for by part two of section eleven hun- dred and sixty-one of this Code, upon the tenant of the premises, the fact that such notice was not served on each subtenant shall constitute no de- fense to the action. In case a married woman be a tenant, or a subtenant, her coverture shall con- stitute no defense; but in case her husband be not joined, or unless she be doing business as a sole trader, an execution issued upon a personal judg- ment against her can only be enforced against property on the premises at the commencement of the action. All persons who enter the premises under the tenant, after the commencement of the suit, shall be bound by the judgment, the same as if he or they had been made party to the action. [Amendment approved March 14, 1885; Amend- ments 1885, 129.] Parties plaintiff, and generally: Sec. 1165. § 1165. Except as provided in the preceding section the provisions of part two of this Code, re- lating to pai'ties to civil actions, are applicable to this proceeding. See sees. 307 et seq., ante. I*arties defendant: Sec. 1164. § 1166. The plaintiff, in his complaint, which shall be in writing, must set forth the facts on which he seelvs to recover, and describe the prem- ises with reasonable certainty, and may set forth therein any circumstances of fraud, force, or vio- lence which may have accompanied the alleged forcible entry or forcible or unlawful detainer and claim damages therefor. In case the un- lawful detainer charged be after default in the payment of rent, the complaint must state the amount of such rent. Upon fil- ing the complaint, a summons must be is- 455 SUMMARY PROCEEDINGS. § 1167 sued thereon as in other cases, returnable at a daj' designated therein, which shall not be less than three daj's, nor more than twelve days from irs date, except in cases when the publication of the summons is necessary, in which case the court or a judge or justice thereof, may order that the summons be made returnable at such time, as may be deemed proper, and the summons shall specify the return day so fixed. [Amendment approved March 14, 1885; Stats. 1885, 129. In ef- fect March 9, 1880.] Damages: Sec. 1174. Amendment: Sees. 472, 473, 1172. Abbreviations and numerals: Sec. 186. Verification: Sees. 1175, 446. Parties: Sees. 1164, 1165. § 1167. The summons must state the parties to the proceeding, the court in which the same is brought, the nature of the action, in concise terms, and the relief sought, and also the return day, and must notify the defendant to appear and answer within the time designated, or that the relief sought will be taken against him. The summons must be directed to the defendant, and be served at least two days before the return day desig- nated therein., and must be served and returned in the same manner as summons in civil actions is served and returned. Upon the return of any sum.mons issued under this chapter, where the same has not for any reason, been served, or not served in time, the plaintiff may have a new sum- mons issued, the same as if no previous summons had been issued. [Amendment approved March 9. 1880; Amendments 1880, 8. In effect March 9, 1880.] Service of summons, in civil action: Sec. 406 et seq. §§ 1168-1172 SUMMARY PROCEEDINGS. 456 § 1168. If the complaiut presented establishes, to the satisfaction of the judge or justice, fraud, force, or violence, in tlie entry or detainer, and that the possession held is unlawful, he may make an order for the arrest of the defendant. [Amend- ment approved March 9, 1880; Amendments 1880, 0. In effect March 9, 1880.] Arrest, .uenerally: Sec. 478 et se(i. § 1169. If, at the time appointed, the defend- ant do not appear and defend, the court must en- ter his default, and render judgment in favor of the plaintiff, as prayed for in the complaint. .Judgment by default, generally: Sec. 585. § 1170. On or before the day fixed for his ap- pearance, the defendant may appear and answer or demur. See sec. 1177. Appearance, generally: Sec. 1014. xVnswer— Scope of: Sec. 1172; verification: Sec. 1175; generally: Sec. 4.37. § 1171. "NMienever an issue of fact is present- ed by the pleadings, it must be tried by a jury, unless such jury be waived as in other cases. The jury shall be formed in the same manner as other trial juries in the court in Avhich tlie action is ])ending. [Amendment approved March 9, 1880: Amendments, 1880, 9. In effect :March 9, 1880.] Trial by jury: Sees. G00-()28; issue of fact: Sec. 590 et seq.; waiver: Sec. r».31. Formation of the jury: Sees. GOO-604. Justices- coiu'ts— trials in: Sees. 878-887. § 1172. On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff sliall only be required to show, in addition to the 457 SUMMARY PROCEEDINGS. §§ 1173, 1174 forcible outry or forcible detainer complained of, that be was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense, that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet posses- sion thereof for the space of one Avhole year to- gether next before the commencement of the pro- ceedings, and that his interest therein is not then ended or determined: and such showing is a bar to the proceedings. Amendments: Sees. 472, 473. Practice, etc.: Sees. 807-1059; see sec. 1177. § 1173. AVhen, upon the trial of any proceed-, ing under this chapter, it appears from the evi- dence that the defendant has been guilty of either a forcible entry, or a forcible or unlawful detainer, and other than the offense charged in the com- plaint, the judge must order that such complaint be fortliwith amended to conform to such proofs; sucl) amendment must be made without any im- position of terms. No continuance shall be per- mitted upon account of sucli amendment, unless tlie defendant, by affidavit tiled, shows to the sat- isfaction of the court good cause therefor. I Amendment approved Marcli 12, 1885; Stats. 1885. 102.] Continuance, generally: Sec. 595. § 1174. If, upon the trial, the verdict of the jury, or, if the case be tried without a jury, the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be en- tered for the restitution of the premises; and if Hie proceeding be for an unlawful detainer after neglect, or failure to perform the conditions or Code Civ. Proc— 39. § 1174 SUMMARY PROCEEDINGS. 458 covenants of the lease oi* agreement undei' which the property is held, or after default in the pay- ment of rent, the judgment shall also declare the forfeiture of such lease or agreement. The jury, or the court, if the proceeding be tried without a jury, shall also assess the damages occasioned to ihe plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the com- plaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent; and the judgment shall be rendered against the defendant guilty of the forcible entry, or forcible or unlawful detainer, for three times the amount of the damages thus assessed, and of the rent found due. When the proceeding is for an unlaw- ful detainer after default in the payment of the rent, and the lease or agreement under which the rent is payable has not by its terms expired execution upon the judgment shall not be issued until the expiration of five days after the entry of the judgment, within which time the tenant, or and subtenant, or any mortgagee of the term, or other party interested in its continuance, may pay into court, for the landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceeding, and thereupon the judgment shall be satisfied and the tenant be restored to his es- tate; but if payment, as here provided, be not made within the five days, the judgment may be enforced for its full amount, and for the posses- sion of the premises. In all other cases the judg- ment may be enforced immediately. [Amend- ment approved ISIarch 24, 1874; Amendments 1873-4, 349. In effect July 1, 1874.] See sees. 11.59-1101, generally. 459 SUMMARY PROCEEDINGS. §§ 1175-1179> Forfeiture, relief from: Sec. 1171). Damages, trebling: Sec. 735. § 1175. The complaint and answer must be verified. Verification of pleadings: Sec. 446. § 1176. An appeal taken by the defendant shall not stay proceedings upon the judgment, un- less the judge or justice before whom the same was rendered so directs. [Amendment approved March 9, 1880; Amendments ISSO, 9. In effect March 9, 1880. J Appeal as stay— generally: Sees. 94G, 949. § 1177. Except as otherwise provided in this chapter, the provisions of part two, of this Code, are applicable to, and constitute the rules of prac- tice in the proceedings mentioned in this chapter. For part 2, see ante, sec, 307. § 1178. Provisions of part two of this Code, relative to new trials and appeals, except in so far as they are inconsistent with the provi- sions of this chapter, apply to the proceeding& mentioned in this chapter. See ante, sees. 656, 930. § 117S. The court may relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where appli- cation for such relief is made within thirty days after the forfeiture is declared by the judgment of the court, as provided in section one thousand one hundred and seventy-four. The application may be made by a tenant or subtenant, or a mort- gagee of the term, or any person interested in the continuance of the term. It must be made § 1180 LIENS IN GENERAL. 460 upon petition, setting forth the facts upon which the relief is sought, and be verified by The appli- cant. Notice of the application, with a copy of the petition, must be served on the plaintiff in the judgment, who may appear and contest the appli- cation. In no case shall the application be grant- ed except on condition that full payment of rent due, or full performance of conditions or cove- nants stipulated, so far as the same is practica- ble, be made. [Amendment approved March 9. 1880: Amendments 1880. 9, In eflPect March 9, 1880,] TITLE IV. OF THE ENFORCEMENT OF LTENS. Chapter T. Liens in general. II. Liens of mechanics and others upon real property. TIL Certain liens for salaries and wages. CHAPTER I. LIENS IN GENERAL. § 1180. Definition of lien. ^ 1180. A lien Is a charge imposed upon spe- cific property by which it is made security for the i)erformance of an act. Lien, definition of— Civil Code, sec. 2872. Priority of liens— Civil Code. sec. 2897. LIEXS OF MECHANICS, ETC. § 1183 CHAPTER 11. LIENS OF MECHANICS AND OTHERS UPON REAL PROPERTY. § 1183. What laborers, contractors, etc., may have liens upon. § 1184. Liens for grading and filling lots and streets. § 118.5. What interest in the land subject to the lien. § 1183. Effect of liens. § 1187. Claim of lien to be filed in recorder's ofiice. § 1188. Lien upon two or more pieces of property. Amount due from each to be designated. § 1189. Claim to be recorded! Fees of recorder. § 1190. Time of continuance of lien, g 1191. Service of summons by publication, li 1192. Subcontractors, who are, and when paid out of proceeds of sale. § 1193. Costs. § 1194. Court to declare rank of liens. § 1195. Execution for deficit. § 1196. Actions for separate liens may be joined, when and how. § 1197. Lien does not impair right to proceed for recovery of the debt. ^ § 1198. Rules of practice. ^ § 1199. New trials and appeals. -- § 1200. Failure or abandonment. ^ § 1201. Waiver of claims. S 1202. False claims. V § 1203. Bond of contractor to be filed. VJ § 1183. Mecliauics, material meii, coiitractors, subcontractor:-;, artisans, architects, machinists, builders, miners, and all persons and laborers of j^ every class, performinj? labor upon or furnishing^ materials to be used in the construction, altera- tion, addition to, or repair, eitlier in wliole or in part, of any building', wharf, bridj^e, ditch, flume, aqueduct, tunnel, fence, macliinery, railroad, wagon road, or other structure, shall have a lien upon the property upon which tliey have bestow- )^ ed labor, or fiu-nislied materials, for the value of ^ sucli labor done and materials furnished, whether^ § 1183 LIENS OF MECHANICS, ETC. 462 cat the iiistaiice of the owiier or ol' auy other per- son acting by his authority, or under him, as con- tractor or otherwise; and auy person who per- I'onus hibor in auy mining claim or claims, has a lieu upon the same, and the worlvs owned and used by the owners for reducing the ores from such mining claim or claims, for the work or labor done, or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or iiis agent, and every contractor, subcontractor, architect, builder, or oth^r person having charge of any mining, or of the construction, alteration, addition to, or repair, either in whole or in part, of any building or other improvement as afore- said, shall be held to be the agent of the owner, for purposes of this chapter. In case of a contract for the work, betAveen the reputed owner and his contractor, the lieu shall extend to the entire con- tract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price; and" after all such liens are satisfied then, as a lien for any balance of the contract price in favor of the contractor. All such contracts shall be in Avriting when the amount agreed to be paid there- under exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, or a memorandum thereof, setting forth tlie names of all the parties to the contract, a de- scription of the property to be affected thereby, together with a statement of the general charac- ter of the work to be done, the total amount to be paid thereunder, and the amounts of all par- tial i)ayments. together with the times when such ])aymen1s shall be due and payable, shall, before the M'ork is commenced, be filed in the office of the County Kecorder of the county or city and 463 LIENS OF MECHANICS, ETC. § 1184 county, where the property is situated, Avho shall receive one dollar for such tiling; otherwise thej' shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lieu for the value tliereof. [Amendment approved March 15, 1887; Stats. 1887, 152. In ef- fect March 15, 1887. J Mechanic's lien, generally: See sees. 1x93-1190. Labor, etc.: Sec. 1184. § 1184. No part of the contract price shall, by the terms of any such contract, be made payable, nor shall the same or any part thereof be paid in advance of the commencement of the work, but the contract price shall, by the terms of the con- tract, be made payable in installments at specified times after the commencement of the worlv, or on the completion of specified portions of the worlv, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract. No payment made prior to the time when the same is due, under the terms and condi- tions of the contract, shall be valid for the pur- pose of defeating, diminishing, or discharging any lien in favor of any person, except the contractor, but as to such liens, such payment shall be deem- ed as if not made, and shall be applicable to such liens, notwithstanding that the contractor to whom it was paid may thereafter abandon his contract, or be or become indebted to the reputed owner in any amount for damages or otherwise, for nonperformance of his contract or otherwise. As to all liens, except that of the contractor, the § 1184 LIENS OF MECHANICS. ETC. 464 whole contract price shall be payable in money, and shall not be diminished by any prior or sub- sequent indebtedness^, oti'sev, or counterclaim, in favor of the reputed owner and against the con- tractor; no alteration of any such contract shall affect any lien acquired under the provision^; of this chapter. In case such contracts and altera- tions thereof do not conform substantially to the provisions of this section, the labor done and ma- terials furnished by all persons except the con- tractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof. Any of the persons mentioned in section eleven hundred and eighty-three, except the contractor, may at any time give to the reputed owner a written notice that they have performed labor or furnished materials, or both, to the contractor, or other person acting by authority of the reputed owner, or that they have agreed to do so, stating in general terms the kind of labor and materials, and the name of the person to or for whom the same was done or furnished, or both, and the amount in value, as near as may be, of that al- ready done or furnished, or both, and of the whole agreed to be done or furnished, or both. Such notice may be given by delivering the same to th<^ reputed owner personally, or by leaving it at his residence or place of business, with some person in charge, or by delivering it to his architects, or by leaving it at their residence or place of busi- ness, with some person in charge, or by posting It in a conspicuous place upon the mining claim or improvement. No such notice sliall be invalid by reason of any defect of form, provided it is sufficient to inform the reputed owner of the sub- stantial matters herein provided for. or to put him 465 LIENS OF MECHANICS, ETC. §§ 1185, 1186 upon inquiry as to such matters. Upon such no- tice being given, it shall be the duty of the per- son who contracted Avith the contractor to, and he shall, withhold from his contractor, or from any other person acting under such reputed own- er, and to whom by said notice the said labor or materials, or both, have been furnished, or agreed to be furnished, sutticient money due, or that may become due to such contractor, or other person, to answer such claim and any lien that may be tiled therefor for record under this chapter, in- cluding counsel fees not exceeding one hundred dollars in each case, besides reasonable costs pro- vided for in this chapter. [Amendment approved March 15. 1887; Stats. 1887, 152. In effect March 15, 1887.] ^ 1185. The land upon which any building, im- provement, or structure is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment is also subject to the lien, if at the commencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, or structure to be con- structed, altered, or repaired; but if such person owned less than a fee simple estate in such land, then only his interest therein is subject to suc^ lien. I Amendment approved March 24, 1874; Amendments 1873-4. 351. In effect .July 1. 1874.] § 1186. The liens provided for in this chapter nre preferred to any lien, mortgage, or other in- cumbrance which may have attached subsequent to the time Avhen the building, improvement, or structure was commenced, worlv done, or mate- § 1187 LIENS OF MECHANICS, ETC. 466 rials were commenced to be furnished; also, to any lien, mortgage oi* otlier incumbrance of whicli the lien holder had no notice, and which was un- recorded at the time the building, improvement or structure was commenced, work done, or the materials were commenced to be furnished. Parties to suit: Sec. 1100. § 1187. The owner of any property on which labor has been performed, or for which materials have been furnished to be used in the construc- tion, alteration, addition to, or repair, either in whole or in part, of any worli, mentioned in sec- tion eleven hundred and eighty-three of this Code must, within ten days after tlie completion there- of, or witliiu forty days after cessation from la- bor upon any unfinished contract, or upon any unfinislied building, improvement, or structure, or the alteration, addition to, or the repair thereof, file for record in the office of the County Record- er of the county, or city and county, in which such property or some part thereof is situated, a notice setting forth the date when such building, im- provement, or structure, or the alteration, addi- tion to, or repair thereof, was actually completed, or in case of cessation from labor for thirty days, the date on which such cessation actually occurred, and said notice shall also contain the name and the nature of the title of the person who caused the said building, improvement, or structure to be erected, or said alteration, addition to, or repair to be made, and also a description of the prop- erty sufficient for identification, and said notice must be verified by said OAvner or some other per- son in his behalf. In case any such owner neglect to file said notice as herein required, within the time heroin required, then the said owner and all persons deraigning title from him, and all per- 437 LIENS OF MECHANICS, ETC. § 118^ sons claiming an interest in said property, shall be estopped in anj^ proceedings brought to fore- close any mechanics' lien or liens, provided for in this chapter, from maintaining a defense therein based on the ground that said lien or liens have not been filed within the time provided in this chapter. Said notice, when so filed for record must be recorded by the County Recorder with whom the same is filed for record, and the fee for recording the same shall be the sum of one dollar. Every original contractor, at any time after the completion of his contract, and until the expira- tion of sixty days after the tiling of said notice of completion or notice or cessation of labor by the owner, and every person save the original contractor claiming the benefit of this chapter at any time after the completion of any building, im- provement, or structure, or of the alteration, addi- tion to, or repair thereof, and until the expiration of thirty days after the filing of said notice of completion or cessation by said owner, or within thirty days after the performance of any labor in a mining claim, must file for record with the Coimty Recorder of the county, or city and county, in which such property or some part thereof is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if Ivuown, and also the name of the per- son by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charg- ed with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person; provided, however, that in any event all claims of lien must be filed within 5iJ 118S, 1189 LIENS OF MECHANICS, ETC. 468 ninety days after the completion of said building, improvement, or structure, or tlie alteration, ad- dition to, or repair tliereof. Any trivial imperfec- tion in tlie said worlv, or in the construction of any building", improvement, or structure, or of the al- teration, addition to, or repair thereof, shall not be deemed such a lack of completion as to pre- vent the tiling of any lien; and in all cases the oc- cupation or use of a building, improvement, or structure, by the owner, or his representative, or the acceptance by said owner or his agent of said building, improvement, or structure, and cessation from labor for thirty days upon any contract or upon any building, improvement, or structure, or the alteration, addition to, or repair thereof, shall be deemed equivalent to a completion thereof for all the purposes of this chapter. [Amendment ap- proved March 27, 1897; Stats. 1897, 1187.] Tnis section was also amended in 1887; Stats. 1887, p. 152. Verification of claim; Sec. 446. § 1188. In every case in which one claim is tiled against two or more buildings, mining claims or other improvements owned by the same person, the person tiling such claim must, at the same time, designate the amount due to him on each of such buildings, mining claims, or other im- provements, otherwise the lien of such claim is postponed to other liens. The lien of such claim- ant does not extend beyond the amount desig- nated, as against otlier creditors having liens by .iudgment. mortgage, or otherwise, upon either of such buildings or other improvements, or upon the land upon M'hich the same are situated. § 1189. The recorder must record the claim in ,1 bool: Icept by him for that purpose, which ree- 469 LIENS OF MECHANICS, ETC. §§ 1190, 1192; ord must be indexed as deeds and other convey- ances are required by law to be indexed, and for which he may receive the same fees as are al- lowed by law for recording deeds and other in- struments. § 1190. No lien provided for in this chapter binds any building, mining claim, improvement, or structure, for a longer period than ninety days af- ter the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same, or, if a credit be given, then ninety days after the expiration of such credit; but no Uen continues in force for a longer time than two years from the time the worlv is com- pleted, by any agreement to give credit. Complaint, generally: Sec. 1198. Court proceedings commenced— personal action: Sec. 1197; intervention: Sec. 387. Answer: Sec. 1198. § 1191. Any person who, at the request of the reputed owner of any lot in any incorporated city or lown, grades, fills in, or otherwise improves, the same, or the street or sidewalli in front of or adjoining the same, or constructs any areas, or vaults, or cellars, or rooms, under said sidewall^, or maizes any improvements in connecdon there- with, has a lien upon such lot for his Avorli done and materials furnished. [Amendment approved March 15, 1887; Stats. 1887, 152. In effect March 15. 1887.] § 1192. Every building or other improvement mentioned in section one thousand one hundred and feighty-three of this Code, constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest there- Code Civ. Froc— 40. ^ 1193 LIENS OF MECHANICS, ETC. 470 iu, shall be held to have been constructed at the instance of such owner or person having or claim- ing any interest therein, and the interest owned or claimed shall be subject to any lien filed in ac- cordance with the provisions of this chapter, un- less such owner or person having or claiming an interest therein shall, within three days after he ^hall have obtained knowledge of the construc- tion, alteration, or repair, or the intended con- struction, alteration, or repair, give notice that he will not be responsible for the same, by posting Si notice in writing to the effect, in some conspic- uous place upon said land, or upon the building or other improvement situated thereon. [Amend- ment approved March 30, 1874; Amendments 1873- 4, 410. In effect May 29, 1874. J § 1193. The contractor shall be entitled to re- cover upon a lien filed by him only such amount as may be due to him according to the terms of his contract, after deducting all claims of other parties for work done and materials furnished, as aforesaid; and in all cases where a lien shall be filed, under this chapter, for work, done or mate- rials furnished to any contractor, he shall defend any action brought thereupon at his own expense; and during the pendency of such action, the own- er may withhold from the conti-actor the amount of money for which lien is filed; and in case of judgment against the owner or his property, upon the lien, the said owner shall be entitled to de- duct from any amount due or to become due by him to the contractor, the amount of such judg- ment and costs, and if the amount of such judg- ment and costs shall exceed the amount due by him to the contractor, or if the owner shall have settled with the contractor in full, he shall be en- titled to recover back from the contractor any 471 LIENS OF MECHANICS, ETC. §§ 1194, 1195. amount so paid bj^ him, the said owner, in ex- cess of the contract price, and for which the con- tractor was originally the party liable. [Amend- ment approved March 30, 1874; Amendments 1873- 4, 411. In effect May 29, 1874.] § 1194. In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien, or class of liens, which shall be in the following or- der, viz: 1. All persons performing manual labor in, on, or about the same; 2. Persons furnishing materials; 3. Subcontractors; 4. Original contrac- tors. And the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank; and whenever, in the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the de- ficiency in like manner and with like effect as in actions for the foreclosure of mortgages. [Amend- ment approved March 18, 1885; Stats. 1885, 145.} Judgment, generally: Sec. 664, and see sec. 1192, ante. § 1195. Any number of persons claiming liens may join in the same action, and when separate actions are commenced, the court may consoli- date them. The court must also allow, as a part of the costs, the money paid for filing and re- cording the lien, and reasonable attorneys' fees in the Superior and Supreme Courts, such costs, and attorneys' fees to be allowed to each lien claimant whose lien is established, whether he be plaintiff or defendant, or whether they all join in one action, or separate actions are consolidated. [Amendment approved March 18, 1885; fetats. 1885, 146.] Consolidation of actions— generallv: Sec. 1048. §§ 1196-1200 LIENS OF MECHANICS, ETC. 472 § 1196. Whenever materials shall have been furnished for use in the construction, alteration or repair, of any building or other improvement, such materials shall not be subject to attachment, execution, or other legal process, to enforce any debt due by the purchaser of such materials, ex- cept a debt due for the purchase money thereof, so long as in good faith the same are about to be applied to the construction, alteration, or repair of such building, mining claim, or other improve- ment. [Amendment approved March 30, 1874; Amendments 1873-4. 412. In effect *]May 29, 1874.] § 1197. Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a per- sonal action to recover such debt against the per- son liable therefor. [Amendment approved March 24. 1874; Amendments 1873-4, 351. In effect July 1, 1874.] § 1198. Except as otherwise provided in this chapter, the provisions of part two of this Code are applicable to and constitute the rules of prac- tice in the proceedings mentioned in this chap- ter. See ante, sec. 307 et seq. § 1199. The provisions of part two of this Code relative to new trials and appeals, except in so far as they are inconsistent Avith the provisions of this chapter, apply to the proceedings mentioned in thi.s chapter. See ante, sees. 656 et seq, and sees. 936 et seq. § 1200. In case the contractor shall fail to per- form his contract in full, or shall abandon the 473 LIENS OF MECHANICS, ETC. S§ 1201, 1202 same before completion, the portion of the con- tract price applicable to the liens of other per- sons than the contractor shall be fixed as folloAvs: from the value of the work and materials already done and furnished at the time of such failure or abandonment, including materials then actual- ly delivered or on the ground, which shall there- upon belong to the owner, estimated as near as may be by the standard of the whole contract price, shall be deducted the payments then due and actually paid, according to the terms of the contract and the provisions of sections one thous- and one hundred and eighty-three and one thous- and one hundred and eighty-four, and the remain- der shy 11 be deemed the portion of the contract price applicable to such liens. [New section ap- proved March IS, 1885; Stats. 1885, 146.] § 1201. It shall not be competent for the owner and contractor, or either of them, by any term of their contract, or otherwise, to waive, affect, or impair the claims and liens of other persons, whether with or without notice, except by their written consent, and any term of the contract to that effect shall be null and void. [New section approved March 18, 1885; Stats. 1885, 146.] § 1202. Any person M'ho shall willfully give a false notice of his claim to the owner, under the provisions of section one thousand one hundred and eighty-four, shall forfeit his lien. Any per- son who shall willfully include in his claim, filed under section one thousand one hundred and eighty-seven, worlv or materials not performed up- on or furnished for tlie property described in the claim shall forfeit his lien. If the owner and his contractor shall directly or indirectly conspire to or agree that the written contract filed shall ap- Si 1203 LIENS OF MECHANICS, ETC. 474 pear to show the contract price to be less than it really is, and it shall accordingly so show, then such contract shall be wholly void, and no recov- ery shall be had thereon by either party thereto; and in such case the labor done and materials fur- nished by all persons, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner and they shall have a lien for the value thereof. [New section approved March 18, 1885; Stats. 1885, 146.] § 1203. Every contract required to be filed under the provisions of this chapter shall be accompanied by a good and sufficient bond in an amount equal to at least twenty-five per cent of the contract price, which said bond shall be filed at the same time and in the same manner as herein provided for the filing of such contract or memorandum thereof. Said bond shall, by its terms, be made to inure to the benefit of any and all persons who perform labor for or furnish materials to the contractor or any person acting for him or by his authority; and any such person shall have an action to recover upon said bond, against the principal and sure ties, or either of them, for the value of such laboi or materials, or both, not exceeding the amount of the bond; but such action shall not affect his lien nor any action to foreclose the same, except that there shall be but one satisfaction of his claim, with costs and counsel fees. Any failure to comply with the provision of this section shall render the owner and contractor jointly and sev- erally liable in damages to any and all material- men, laborers, and subcontractors entitled to liens upon the property affected by said contract. [New -section added March 23, 1893; Stats. 1893, 202.] 475 LIENS FOR SALARIES. §§ 1204, 1205 CHAPTER 111. CERTAIN LIENS FOR SALARIES AND WAGES. § 1204. Preferred creditors when assignment of property is made. § 1205. Same, against estates. § 1206. Same, in cases of execution or attachment. § 1207. Dispute of claim or portion thereof— costs. § 1204. In all assignments of property made by jiny person to trustees or assignees, on account of the inability of the person, at the time of the assignment, to pay his debts, or in proceedings in insolvency, the wages and salaries of the miners, mechanics, salesmen, servants, clerks, laborers employed by such person or any other person, who renders services or performs work to the amount of one hundred dollars each, and for services ren- dered within sixty days previously, are preferred claims, and must be paid by such trustees or as- signees before any other creditor or creditors of the assignor. [Amendment approved March 9, 1893; Stats. 1893, 97.] Assignments for benefit of creditors— Civil Code, sees. 3449, 3473. Proceedings in insolvency: See sec. 1822. § 1205. In case of the death of any employer, the wages of each miner, mechanic, salesman, clerk, servant, laborer, or any other person who renders services, or performs work for services rendered within the sixty days next preceding the death of the employer, not exceeding one hun- dred dollars, rank in priority next alter the fu- neral expenses, expenses of the last sickness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children and must be paid before other claims § 1206 LIENS FOR SALARIES. 476 agaiust the estate of the deceased person. [Amendment approved March 9, 1893; Stats. 1893, 97.] Estate of deceased persons, payment of debts, generally: Sec. 1643 et seq. § 1206. In cases of executions, attachments, and writs of a similar nature, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerlvs and laborers, or any other person who renders services or performs work, who liave claims against the defendant for labor done or work performed, may give notice of their claims, and the amount thereof, sworn to by the person making the claim, to the creditor and the officer executing either of such writs, at any time before the actual sale of property levied on, or, in the event of a levy upon money, at any time before the transfer of such money under execution and, unless such claim is disputed by the debtor or a creditor, such officer must pay to such person, out of the proceeds of the sale, or in the event of a levy on money, out of such money, the amount each is entitled to receive for services rendered within the sixty days next preceding the levy of the writ, not exceeding one hundred dollars. If any or all of the claims so presented and claiming preference under this section are disputed by either the debtor or a creditor, the person present- ing the same must commence an action within ten days for the recovery thereof, and must prose- cute his action with due diligence, or be forever barred from any claim or priority of payment thereof; and the officer shall retain possession of so much of the proceeds of the sale or money as may be necessary to satisfy such claim until the determination of such action: and in case judg- 477 LIENS FOR SALARIES. § 1207 inent be had for the claim, or any part thereof, carryiug costs, the costs taxable therein shall lil^ewise be a preferred claim with the same rank as the original claim. [Amendment approved March 9, 1893; Stats. 1893, 87.] § 1207. The debtor or creditor intending to dis- pute a claim presented under the provisions of the last section shall, within ten days after receiving notice of such claim, serve upon the claimant and the officer executing the writ a statement in writ- ing, verified by the oath of the debtor or the per- son disputing such claim, setting forth that no part of said claim, or not exceeding a sum speci- fied, is justly due from the debtor to the claimant for services rendered within the sixty days next preceding the levy of the writ. If the claimant bring suit on a claim which is disputed in part only and fail to recover a sum exceeding that which was admitted to be due, he shall not recover costs, but costs shall be adjudged against him. [New section approved March 7, 1883; Stats. 1883. 47. In effect March 7, 1883.] 479 CONTEMPTS § 1209 TITLE V. OF CONTEMPTS. § 1209. What acts or omissions are contempts. § 1210. Re-entry on property after eviction, when a con- tempt. § 1211. A contempt committed in the presence of the court may be punished summarily. When not so com- mitted, an affidavit or statement shall be made. § 1212. A warrant of attachment may issue or a notice to show cause. § 1213. Bail may be given by a person arrested under such warrant. § 1214. Sheriff must, upon executing the warrant, arrest and detain the person until discharged. § 1215. Bail bond, form and conditions of. § 1216. Officer must return warrant and undertaking, if any. § 1217. Hearing. § 1218, Judgment and penalty, if guilty. § 1219. If the contempt is the omission to perform any act, the person may be imprisoned until perform- ance. § 1220. If a party fail to appear, proceedings. § 1221. Illness sufficient cause for non-appearance of party arrested. Confinement under arrests for contempt. § 1222. Judgment and orders in such cases final. § 1209. The following acts or omissions in re- spect to a court of justice, or proceedings there- in, are contempts of the authority of the court: 1. Disorderly, contemptuous, or insolent beha- vior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding; 2. A breach of the peace, boisterous conduct, § 1209 CONTEMPTS. 480 or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding; 8. MisbeliaYior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial ser- vice; 4. Deceit or abuse of the process or proceedings of the court by a party to an action or special pro- ceeding; 5. Disobedience of any lawful judgment, order or process of the court; 6. Assuming to be an officer, attorney, coun- sel of a court, and acting as such, without au- thority; 7. Rescuing any person or property', in the cus- tody of an officer, by virtue of an order or pro- cess of such court; 8. Unlawfully detaining a witness, or party to an action, while going to, remaining at, or re- turning from the court where the action is on the calendar for trial; 9. Any other unlawful interference with the process or proceedings of a court; 10. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness; 11. When summoned as a juror in a court, neg- lecting to attend or serve as such, or improperly conversing with a party to nn action, to be tried at such court, or with any other person, in rela- tion to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court; 12. Disobedience by nu inferior tribunal, mngis- 481 CONTEMPTS. £ 1210 trate, or officer, of the lawful judgment, order, or process of a superior court, or proceeding in an action or special proceeding contrary to law, after such action or special proceeding is removed from the jurisdiction of such inferior tribunal, magis- trate, or officer. Disobedience of the lawful or- ders or process of a judicial officer is also a con- tempt of the authority of such officer. But no speech or publication reflecting upon or concern- ing any court or any officer thereof shall be treat- ed or punished as a contempt of such court, unless made in the immediate presence of such court while in session, and in such a manner as to ac- tually interfere with its proceedings. [Amend- ment approved February 17, 1891; Stats. 1891, 6. In effect immediately.] Powers of courts: Sees. 128, 177, 178. Juror willfully failing to attend: Sec. 238. Dispossession of party placed in possession un- der process: Sec. 1210. Contempt, powers of courts: Sees. 128, 177, 178; in justices' courts: Sees. 906-910. Misbehavior of attorney: Sec. 287 et seq. Disobedience of lawful judgment or order— by executor: Sec. 1440. § 1210. Every person dispossessed or ejected from or out of any real property by the judgment or process of any court of competent jurisdiction, and who, not having right so to do, re-enters into or upon or talves possession of any such real prop- erty, or induces or procures any person not hav- ing right so to do, or aids or abets him therein, is guilty of a contempt of the court by which such judgment was rendered or from which such pro- cess issued. Upon a conviction for such contempt Code Civ. Proc— 41. § 1211 CONTEMPTS. 482 the court must immediately issue an alias process, directed to the proper officer, and requiring him to restore such possession to the party entitled under the original judgment or process (or to his lessor or 10 his grantor), and no appeal from the order directing the issuance of an alias writ of posses- sion shall stay the execution thereof, unless a written undertaliing be executed on the part of the appellant, with two or more sureties, to the efCect that he will not commit or suffer to be com- mitted any waste therein, and if the order be affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of his unlawful re-entry until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the or- der for the alias writ was made, and which must be specified in the undertaking. [Amendment ap- proved March 23, 1893; Stats. 1893, 281. In ef- fect immediately.] § 1211. When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summar- ily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceed- ed against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or judge at cham- bers, an affidavit shall be presented to the court or jadge, of the facts constituting the contempt or a statement of the facts by the referees or arbitrators, or other judicial officer. 483 CONTEMPTS. §§ 1212-1215 Contempt away from court, attachment: Sec. 1212 et seq. § 1212. When the contempt is not committed in the immediate view and presence of the court or judge, a w^arrant of attachment may be issued to bring the person charged to answer, or, with- out a previous arrest, a warrant of commitment may upon notice or upon an order to show cause be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause. § 1213. Whenever a warrant of attachment is issued, pursuant to this title, the court or judge must direct, by an indorsement on such warrant, that the person charged may be let to bail for his appearance in an amount to be specified in such indorsement. § 1214. Upon executing the warrant of attach- ment, the Sheriff must lieep the person in custody, bring liim before tlie court or judge, and detain him until an order be made in the premises, un- less the person arrested entitle himself to be dis- charged, as provided in the next section. § 1215. When a direction to let the person ar- rested to bail is contained in the w^arrant of at- tachment, or indorsed thereon, he must be dis- charged from the arrest upon executing and deliv- ering to the officer, at any time before the return day of the warrant, a written undertal^ing, with two suflScient sureties, to the effect that the per- son arrested will appear on the return of the war- rant and abide the order of the court or judge §§ 1216-1220 CONTEMPTS. 484 thereupon; or they will pay, as may be directed, the sum specified in the warrant. § 1216. The oflicer must return the warrant of arrest and undertaking, if any, received by him from the person arrested, by the return day speci- fied therein. § 1217. When the person arrested has been brought up or appeared, the court or judge must proceed to investigate the charge and must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary. § 1218. Upon the answer and evidence taken the court or judge must determine whether the person proceeded against is guilty of the con- tempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both. § 1219, When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be im- prisoned until he have performed it. and in that case the act must be specified in the warrant of commitment. Executor or administrator, contempt: Sec. 1440. § 1220. When the warrant of arrest has been returned served, if the person arrested do not ap- pear on the return day, the court or judge may issue another warrant of arrest, or may order the undertaking to be prosecuted or both. If the undertaking be prosecuted, the measure of dam- ages in the action is the extent of the loss or in- 485 VOLUNTARY DISSOLUTION. §§ 1221, 1227 jury sustained by the aggrieved party, by reason of the misconduct for which the warrant was is- sued, and the costs of the proceeding. § 1221. Whenever, by the provisions of this title, an othcer is required to keep a person arrest- ed on a warrant of attachment in custody, and to bring him before a court or judge, the inability, from illness or otherwise, of the person to attend is sufficient excuse for not bringing him up; and the officer must not confine a person arrested upon the warrant in a prison, or otherwise restrain him of personal liberty, except so far as may be neces- sary to secure his personal attendance. § 1222. The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive. TITLE VI. OF THE VOLUNTARY DISSOLUTION OF CORPORA- TIONS. § 1227. How dissolved. § 1228. Application, what to contain. § 1229. Application, how signed and verified. § 1230. Filing application and publication of notice. § 1231. Objections may be filed. § 1232. Hearing of application. § 1233. Judgment roll and appeals. § 1227. A corporation may be dissolved by the Superior Court of the county where its principal place of business is situated, upon its voluntary application for that purpose. [Amendment ap- proved March 16, 1880; Amendments 1880, 109. In effect April 16, 1880.] Stats. 1850, p. 350. sec. 31. Voluntary dissolution, receiver: Sec. 565. Involuntary dissolution: Sec. 802 et seq. §§ 1228-1232 VOLUNTARY DISSOLUTION. 486 § 1228. The application must be iii writing, and must set fortli: 1. That at a meeting of the stocliholders or members called for that purpose, the dissolution of the corporation was resolved upon by a two- third vote of all the stockholders or members; 2. That all claims and demands against the corporation have been satisfied and discharged. § 1229. The application must be signed by a majority of the board of trustees, directors, or other officers having the management of the af- fairs of the corporation, and must be verified in the same manner as a complaint in a civil action. Verification: Sec. 446. § 1230. If the court is satisfied that the appli- cation is in conformity with this title, the judge thereof must order it to be filed with the clerk, and that the clerk give not less than thirty nor more than fifty days' notice of the application, by publication in some newspaper published in the county; and if there are none such, then by ad- vertisements posted up in three of the principal public places in the county. [Amendment ap- proved April 1(5, 1880; Amendments 1880, 109. In effect April 16, 1880.] § 1231. At any time before the expiration of the time of publication, any person may file his objections to the application. § 1232. After the time of publication has ex- pired, the court may, upon five days' notice to the persons who have filed objections or without further notice, if no objections have been filed, proceed to hear and determine the application, and if all the statements therein made are shown to be true, must declare the corporation dissolved. 487 VOLUNTARY DISSOLUTION. §§ 1233, 1234 LAmendment approved February 25, 1878; Amend- ments 1877-8, 108. In effect February 25, 1878.] Notices, service, etc: Sec. 1010 et seq. § 1233. The application, notices, and proof of publication, objections (if there be any) and de- claration of dissolution, constitute the judgment roll; and from the judgment an appeal may be taken, as from other judgments of the Superior Courts. [Amendment approved April 16, 1880; Amendments 1880, 109. In effect April 16, 1880.] Appeals to Supreme Court: Sees. 963-966. § 1234. If the applicant be a savings and loan association, or engaged in the business of receiv- ing money on deposit, and there be any unclaimed deposit or dividend in its hands belonging to a person whose whereabouts are unl^nown to the trustees, directors, or other officers presenting the application, the application shall set forth the name of the person making such deposit or enti- tled to such dividend, the time when such deposit was made or dividend declared, the residence, if known, of such person at the time of such deposit, the amount of such deposit or dividend, and the fact that the whereabouts of such person are known. The same facts shall be stated in the no- tice of the application given by the clerk. If, at any time beforetthe expiration of the time of pub- lication, any person shall file a claim to such de- posit or dividend, the court shall, at the hearing and upon five days' notice to him, hear and deter- mine his claim, and, if such claim be established, order such money to be paid to him. All such de- posits or dividends not so claimed, or as to which no claim shall be established, shall, upon order of the court, be paid into the state treasury, accom- panied with a copy of the order, which shall set § 1234 VOLUNTARY DISSOLUTION. 488 forth the facts hereinbefore required to be stated concerning such deposits or dividends; and, upon production of the Treasurer's receipt for such pay- ment, the court may proceed to declare the corpo- ration dissolved as in other cases. All unclaimed deposits and dividends so paid into the state treas- ury shall be received, invested, accounted for, and paid out, in the same manner and by the same officers as is provided by law in the case of es- cheated estates and in section twelve hundred and seventy-two of this Code. [New section approved Febi-uary 25. 1S97: Stats. 1897, c. 35.] 489 EMINENT DOMAIN. § 1237 TITLE VII. OF EMINENT DOMAIN. § 1237. Eminent domain defined. § 1238. Purposes for which it may be exercised. § 1239. What estates in land may be acquired by condem- nation. § 1240. Private property defined. Classes enumerated. § 1241, Facts necessary to be found before condemnation. § 1242. Parties may make location. May enter to make surveys. § 1243. Jurisdiction in District Court. § 1244. The complaint and its contents. § 1245. Summons, what to contain. How issued and served. § 1246. Who may defend. What the answer may show, and how verified. § 1247. Court shall have jurisdiction to regulate the mode of making crossings or of enjoying a common use. § 1248. Court or jury to assess damages. § 1249. The date with respect to which compensation shall be assessed, and the measure thereof. § 1250. New proceedings to cure defective title. § 1251. Payment of damages. § 1252. Damages, to whom paid. § 1253. Final order of condemnation, what to contain. When filed, title vests. § 1254. Putting plaintiff in possession. § 1255. Costs may be allowed, distribution thereof. § 1256. Rules of practice. § 1257. New trials and appeals. § 1258. When title takes effect, and construction of. § 1259. When title takes effect. § 1260. Construction. § 1261. Pending proceedings not affected. § 1262. Rules of practice. § 1263. Exceptions. § 1237. Eminent domain is the right of the people or government to talie private property for public use. This right may be exercised in the manner provided in this title. Const ihifional provisions: See Const. Cal., art. 1. see. H; art. 12, sec. 8: art. 15, sec. 1. § 1238 EMINENT DOMAIN. 490 § 1238. Subject to the provisions of this title, the right or! eminent domain may be exercised in behalf of the following public uses: 1. Fortifications, magazines, arsenals, navy yards, navy and army stations, lighthouses, range and beacon lights, coast surveys, and all other public uses authorized by the government of the United States. 2. Public buildings and grounds for the use of the State, and all other public uses authorized by the Legislature of this State. 3. Public buildings and grounds for the use of any county, incorporated city, or city and county, village, town, or school districts; canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for con- ducting or storing water for the use of the inhab- itants of any county, incorporated city, or city and county, village, or town, or for draining any county, incorporated city, or city and county, vil- lage, or tow^n; raising the banlis of streams, re- moving obstructions therefrom, and widening and deepening or straightening their channels, roads, streets, and alleys, and all other public uses for the benefit of any county, incorporated city, or city and county, village, or town, or the inhabi- tants thereof, wiiich may be authorized by the Legislature; but the mode of apportioning and col- lecting the costs of such improvements shall be such as may be provided in the statutes by which the same may be authorized. 4. Wharves, docks, piers, chutes, booms, fer- ries, bridges, toll-roads, by-roads, planlv and turn- pike roads; paths and roads either on the surface, elevated, or depressed, for the use of bicycles, tricycles, motor-cycles, and other horseless vehi- cles; steam, electric, and horse railroads, canals, ditches, dams, pondings, flumes, aqueducts, and pipes for irrigation, public transportation, supply- 491 EMINENT DOMAIN. § 1238 ing mines and farming neighborhoods with water, and draining and reclaiming lands, and for float- ing logs and lumber on streams not navigable. 5. Roads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or con- duct of tailings or refuse matter from mines; also an occupancy in common by the owners or pos- sessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse mat- ter from their several mines. 6. By-roads leading from highways to resi- dences, farms, mines, mills, factories, and build- ings for operating machinery, or necessary to reach any property used for public purposes. 7. Telegraph lines. 8. Sewerage of any incorporated city, or city and county, or of any village, or town, whether in- corporated or unincorporated, or of any settlement consisting of not less than ten families, or of any public buildings belonging to the State, or to any college or university. 9. Roads for transportation by traction engines or road locomotives. 10. Oil pipe-lines. 11. Roads for logging or lumbering purposes. 12. Canals, reservoirs, dams, ditches, flumes, aqueducts, and pipes, for supplying and storing water for the operation of machinery for the pur- pose of generating and transmitting electricity for the supplying of mines, quarries, railroads, tram- ways, mills, and factories with electrical power, and also for the supplying electricity to light or heat mines, quarries, mills, factories, incorporat- ed cities, cities and counties, villages, or towns, together with lands, buildings, and all other im- provements in or upon which to erect, install, place, use, or operate machinery for the purpose §§ 1239, 1240 EMINENT DOMAIN. 492 of j,'enerating and transmitting electricity for any of the purposes or uses above set forth. 13. Electric light lines. [Amendment approved March 4, 1897: Stats. 1897, c. 77. In effect imme- diately.] This section was also amended in 1891: Stats. 1891, p. 48; and in 1893: Stats. 1893, p. 146; and in 1895: Stats. 1895, p. 89. Eminent domain generally: See Civ. Code, sec. 1001. § 1239. The following is a classification of the estates and rights in lands subject to be taken for public use: 1. A fee simple, when taken for public build- ings or grounds, or for permanent buildings, for reservoirs and dams, and permanent flooding oc- casioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine; 2. An easement, when taken for any other use; 3. The right of entry upon and occupation of lands, and the right to take therefrom such earth, gravel, stones, trees, and timber as may be neces- sary for some public use. [Amendment approved March 24, 1874: Amendments 1873-4, p. 355. In ef- fect .July 1, 1874.] § 1240. The private property which may be taken under this title, includes: 1. All real property belonging to any person; 2. Lands belonging to this State, or to any county, incorporated city, or city and county, vil- lage, or town, not appropriated to some public use; 3. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated; 493 EMINENT DOMAIN. §§ 1241, 1242 4. Franchises for toll roads, toll bridges, and ferries, and all other franchises; but such fran- chises shall not be talcen unless for free highways, railroads, or other more necessary public use; 5. All rights of way for any and all the purposes mentioned in section twelve hundred and thirty- eight, and any and all structures and improve- ments thereon, and the lauds held or used in con- nection therewith shall be subject to be connected with, crossed, or intersected by any other right of way or improvements, or structures thereon. They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private in- jury; 6. All classes of private property not enumer- ated may be taken for public use, when such tak- ing is authorized by law. More necessary public use: See sec. 1241, subd. 3. Crossings: See sec. 1247, subd. 1. § 1241. Before property can be taken, it must appear: 1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use; 3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. § 1242. In all cases where land is required for public use, the State, or its agents in charge of such use, may survey and locate the same; but it must be located in the manner which will be most compatible with the greatest public good and the least private injury, and subject to the provi- Code Civ. Proc— 42. §§ 1243, 1244 EMINENT DOMAIN. " 494 sious of section twelve hundred and forty-seven. The State, or its agents in charge of such public use, may enter upon the land and malie examina- tion, surveys and maps thereof, and such entry shall constitute no cause of action in favor of the owners of the land, except for injuries resulting from negligence, wantonness, or malice. State or its agents: Civ. Code, sec. 1001. § 1243. All proceedings under this title must be brought in the Superior Court of the county in which the property is situated. They must be commenced by filing a complaint and issuing a summons thereon. [Amendment approved April 26, 1880; Amendments 1880, p. 118. In effect April 26, 1880.] Complaint: Sec. 1244; generally, sec. 426. Summons: Sec. 1245; generally, sec. 406 et seq. § 1244. The complaint must contain: 1. The name of the corporation, association, commission, or person in charge of the public use for which the property is sought, who must be styled plaintiff; 2. The names of all owners and claimants of the property, if Ivuown, or a statement that they are unknown, who must be styled defendants; 3. A statement of the right of the plaintiff; 4. If a right of way be sought, the complaint must show the location, general route, and ter- mini, and must be accompanied with a map there- of, so far ns the same is involved in the action or proceeding: 5. A descrii)tion of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same 495 EMINENT DOMAIN. §§1245-1247 or separate proceedings, at the option of the plain- tiff, but the court may consolidate or separate them to suit the convenience of parties. When application for the condemnation of a right of way for the purposes of sewerage is made on behalf of a settlement, or of an incorporated village or town, the board of supervisors of the- county may be named as plaintiff, [Amendment approved April 20, 1880; Amendments 1880, p, 118. In effect April 2(3, 1880.] § 1245. The clerk must issue a summons, which must contain the names of the parties, a general description of the whole property, a state- ment of the public use for which it is sought, and a reference to the complaint for descriptions of the respective parcels, and a notice to the defend- ants to appear and show cause why the property described should not be condemned as prayed for in the complaint. In all other particulars it must be in the form of a summons in civil actions, and must be served in lilie manner. Summons generally, contents: Sec, 407 et seq,; service: Sec. 410 et seq. § 1246, All persons in occupation of, or having or claiming an interest in, any of the property de- scribed in the complaint, or in the damages for the taking thereof, though not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint. Appearance, generally: Sec, 1014, Answer, counter-claim, and cross-complaint: Sees. 437-442, § 1247. The court shall have power: 1. To regulate and determine the place and § 1248 EMINENT DOMAIN. 496 maDner of making connections and crossings, or of enjoying the common use mentioned in the fifth subdivision of section twelve hundred and forty; 2. To hear and determine all adverse or conflict- ing claims to the property sought to be con- demned, and to the damages therefor; 3. To determine the respective rights of differ- ent parties seeliing condemnation of the same property. § 1248. The court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: 1. The value of the property sought to be condemned, and all improvements thereon per- taining to the realty, and of each and every sep- arate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed; 2. If the property sought to be condemned con- stitutes only a part of a larger parcel, the dam- ages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the con- struction of the improvement in the manner pro-, posed by the plaintiff; 3. Separately, how much the portion not sought to be condemned, and eacli estate or interest therein, will be benefited, if at all, by the con- struction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed under subdivision two, the own- er of the parcel shall be allowed no compensation except the value of the portion talcen; but if the benefit sliall be less than the damages, so assess- 497 EMINENT DOMAIN. § 12 J9 ed, the former shall be deducted from the latter, and the remainder shall be the ouly damages al- lowed iu addition to the value; 4. If the property sought to be condemned be water or the use of water, belonging to riparian owners, or appurtenant to any lands, how much the lands of the riparian owner, or the lands to which the property sought to be condemned is ap- purtenant, Avill be benefited, if at all, by a diver- sion of water from its natural course, by the con- struction and maintenance, by the person or cor- poration in whose favor the right of eminent do- main is exercised, of worlvs for the distribution and convenient delivery of water upon said lands; and such benefit, if any, shall be deducted from any damages awarded the owner of such prop- erty; 5. If the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards where fences may cross the line of such railroad; 6. As far as practicable, compensation must be assessed for each source of damages separately. [Amendment approved March 19, 1889; Stats. 1889, p. 343. In effect March 19, 1889.] Judgment of condemnation: See sec. 1253. Pi-actice, etc: Sees. 1250, 1257. Conflict of plaintiffs: See sec. 1240. Jury: See sec. 12.50, infra. Value, etc: Sec. 1249. § 1249. For the purpose of assessing compen- sation and damages, the right thereto shall be deemed to have accrued at the date of the sum- mons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to §§ 1250-1252 EMINENT DOMAIN. 498 property not actually taken but injuriously affect- ed, in all cases where such damages are allowed as provided in section twelve hundred and forty- eight. If an order be made letting the plaintiff into possession, as provided in section twelve hun- dred and fifty-four, the compensation and dam- ages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subsequent to the date of the service of summons shall be included in the as- sessment of compensation or damages. § 1250. If the title attempted to be acquired is found to be defective from any cause, the plain- tiff may again institute proceedings to acquire the same, as in this title prescribed. § 1251. The plaintiff must, within thirty days after final judgment, pay the sum of money as- sessed; but may, at the time of or before pay- ment, elect to build the fences and cattle guards, and if he so elect, shall execute to the defendant a bond, with sureties to be approved by the court in double the assessed cost of the same, to build such fences and cattle guards within eighteen months from the time the railroad is built on the land talcen, and if such bond be given, need not pay the cost of such fences and cattle guards. In an action on such bond, the plaintiff may recover reasonable attorney's fees. § 1252. Payment may be made to the defend- ants entitled thereto, or the money may be depos- ited in court for the defendants, and be distribut- ed to those entitled thereto. If the money be not J so paid or deposited, the defendants may havej execution as in civil cases, and if the money can- not be made on execution, the court, upon a show ing to that effect, must set aside and annul the en- 1 499 EMINENT DOMAIN. §§ 1253, 1254 tire proceedings, and restore possession of the property to the defendant, if possession has been talcen by the plaintiff. I'ayment, when to be made: Sees, 1251, 1254. § 1253. When payments have been made, and the bond given, if the plaintiff elects to give one, as required by the last two sections, the court must malj.e a final order of condemnation, which must describe the property condemned, and the purposes of such condemnation. A copy of the order must be filed in the oftice of the recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified. § 1254. At any time after the filing of the complaint, and the issuance and service of the summons thereon, the court may, upon notice to the defendant by said court, by an order in that behalf made, authorize the plaintiff, if already in possession, to continue in the possession and use, and if not in possession, to tali;e possession of and use the land and premises sought to be con- demned, during the pendency and until the final conclusion of the proceedings brought to con- demn the same, and may stay all actions and pro- ceedings against such plaintiff on account thereof; provided, however, that in and by said order said plaintiff shall be ordered to pay, and thereafter and before the taking of such possession, or of the further continuance in possession of any such land and premises, pay a sufficient sum of money Into court, or give security for the payment there- of, to be approved by the judge of such court, to compensate said defendant for all damages which may be sustained by said defendant by reason of such proceedings, or of any such condemnation; § 1254 EMINENT DOMAIN. 500 provided, the eondemnation shall be finally had of the said laud and premises, together Avith all damages which may be sustained by the said de- fendant, if the said proceedings for said condem- nation shall finally fail; or if for any cause the said land and premises shall not be taken for the public use for which the same is sought to be condemned, and upon the deposit of the said money, or upon the giving of such security, as ordered by the court, the said plaintiff, by the said order of the said court, shall be let into the possession and use of said land and premises sought to be condemned, or be continued in the possession and use thereof, in tlie same manner and to the same effect as the said plaintiff would be entitled after the trial of such proceedings and the entry of final judgment therein, except that the right of said plaintiff* to retain such possession and to use said land and premises shall be deter- mined by said final judgment, and in case of a refusal of the defendant, upon the order of said court, to allow the said plaintiff to enter into the possession and use of said land and premises, or any part thereof, the said court, upon application of said plaintiff, shall issue a writ of assistance of the same force and effect as writs of assistance are issued in other cases in which writs of assist- ance are issuable, which said writ shall be execut- ed by the Sheriff of the county wlierein the said land and premises may be situated, without de- lay. Tlie defendant who is entitled to the said money paid into court as aforesaid, or upon any judg- ment in such proceedings, shall be entitled to de- mand and receive the same at any time thereafter upon obtaining an order therefor from the court. It sliall be the duty of the court, upon application being made by such defendant, to order and di- 501 EMINENT DOMAIN. § 1254 rect that the money so paid into court be deliv- ered to him upon his filing a satisfaction of the judgment, or upon tiling his receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to defendant, as aforesaid, shall be held to be an abandonment by such defendant of all defenses interposed by him, excepting his claim for greater compensa- tion. In ascertaining the amount to be paid into court, the court shall talvo care that the same be sufficient and adequate. The payment of the money into court, as hereinbefore provided for, shall not discharge the plaintiff from liability to keep the said fund full and without diminution; but such money shall be and remain, as to all ac- cidents, defalcations, or other contingencies (as be- tween the parties to the proceedings), at the risk of the plaintiff, and shall so remain until the amount of the compensation or damages is finally settled by judicial determination, and until the court awards the money, or such part thereof as shall be determined upon, to the defendant, and until he is authorized or required by order of court to take it. If, for any reason, the money shall at any time be lost, or otherwise abstracted or with- drawn, through no fault of the defendant, the court shall require the plaintiff to make and keep the sum good at all times until the litigation is fi- nally brought to an end, and until paid over or made payable to the defendant by order of court, as above provided, and until such time or times the County Clerk shall be deemed to be the cus- todian of the money, and shall be liable to the plaintiff upon liis official bond for the same, or any part thereof, in case it be for any reason lost or otherwise abstracted or withdrawn. The court. §§ 1255-1257 EMINENT DOMAIN. SOf however, may order the money to be deposited in the state treasury, and in such case it shall be the duty of the State Treasurer to receive all such moneys, duly receipt for, and safely keep the same in a special fund, to be entered upon his boolis as a condemnation fund for such purpose, and for such duty he shall be liable to the plaintiff upon his official bond. The State Treasurer shall pay out such money so deposited in such manner and at such times as the court may, by order, direct. In all cases where a new trial has been granted upon the application of the defendant, and he has failed upon such trial to obtain greater compensa- tion than was allowed him upon the first trial, the costs of such new trial shall be taxed against him. [Amendment approved March 27, 1897; Stat. 1897, c. 127. In effect immediately.] Interest: Sec. 1249. It is payable from the com- mencement of the thirty days mentioned in sec- tion 1251. § 1255. Costs may be allowed or not, and if al- lowed, may be apportioned between the parties on the same or adverse sides, in the discretion of the court. § 1256. Except as otherwise provided in this title, the provisions of part two of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this title. Part 2: See ante, sees. 307 et seq. § 1257. The provisions of part tAvo of this Code, relative to new trials and appeals, except in so far as they are inconsistent with the provi- sions of this title, apply to the proceedings men- tioned in this title; provided, that upon the pay- ment of the sum of mon(\v assessed, and upon the 503 EMINENT DOMAIN. §§ 1258-1260 execution of the bond to build the fences and cat- tle-suards, as provided in section twelve liundreci and fifty-one, the plaintiff shall be entitled to en- ter into, improve, and hold possession of the prop- erty sought to be condemned, if not already in possession, or shall have been let into the posses- sion and use thereof, as provided in section twelve hundred and fifty-four, and devote the same to the public use in question; and no motion for a new trial or appeal shall, after such payment and filing of such bond as aforesaid, in any manner retard the contemplated improvement. Any money which shall have been deposited, as pro- vided in section twelve hundred and fifty-four, may be applied to the payment of the money as- sessed, and the remainder, if any there be, shall be returned to the plaintiff. [Approved March 27, 1897; Stats. 1897, c. 127. In effect immediately.] § 1258. AVith relation to the acts passed at the present session of the Legislature, this title must be construed in the same manner as if this Code had been passed on the last day of this session, and from and after the time this Code takes ef- fect, all laws of this State in relation to the xsik- ing of private property for public uses are abolish- ed, and all proceedings had in the exercise of the powers of eminent domain must conform to the provisions of this title. § 1259. Title seven of part three of the Code of Civil Procedure of the State of California (this title) shall be in force and effect from and after tlie fourth day of April, one thousand eight hun- dred and seventy-two. Section added by act of April 1, 1872; same ap- I)lies to remaining sections of this title. § 1260. From and after the time this title §§ 1261, 1269 ESCHEATED ESTATES. 504 takes effect, it must be construed in the same manner as it would be were sections four and seventeen of this Code in force and effect. § 1261. No proceeding to enforce the right of eminent domain commenced before this title talies effect is affected by the provisions of this title. § 1262. Until the first day of January, one thousand eight hundred and seventy-three, at twelve o'clock noon, the provisions of sections tAvelve hundred and fifty-six and twelve hundred and fifty-seven of this title are suspended; and until then, except as otherwise provided in this ti- tle, the rules of pleading and practice in civil ac- tions now in force in this State are applicable to the proceedings mentioned in this title, and con- stitute the rules of pleading and practice therein. § 1263. Nothing in this Code must be con- strued to abrogate or repeal any statute providing for the taking of property In any city or town for street purposes. TITLE VIII. OF ESCHEATED ESTATES. § 1269. Manner of commencing proceedings relative to es- cheated estates. § 1270. Receiver of rents and profits may be appointed. S 1271. Appearance, pleadings, and trial. § 1272. Proceedings by persons riaiming escheated estates. § 1269. When tlie attorney generiil is inforuKMl tliat any real estate has escheated to this State, lie must file an information in behalf of the State in the Superior Court of the county in which such estate, or any part thereof, is situated, setting forth a description of the estate, the name of the 505 ESCHEATED ESTATES. §§ 1270, 1271 person JaBt seized, the uame of the occupant and person claiming such estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have escheated, with an allegation that, by reason thereof, the State of California has right by law to such estate. Upon such information, a summons must issue to such person, requiring him to appear and answer the information within the time allowed by law in civil actions; and the court must make an order setting forth briefly the contents of the informa- tion, and requiring all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the or- der, why the same should not vest in this State; which order must be published for at least one month from the date thereof, in a newspaper pub- lished in the county, if one be published therein, and in case no newspaper is published in the county, in some other newspaper in this State. [Amendment approved April 16, 1880; Amend- ments 1880, p. 110. In effect April 16, 1880.] Unclaimed realty of nonresident aliens escheats to State: Civ. Code, sec. 672. § 1270. The court, upon the information being filed, and upon the application of the attorney- general, either before or after answer, upon notice to the party claiming such estate if known, may, upon sufficient cause therefor being shown, ap- point a receiver to take charge and receive the rents and profits of the same until the title to such real estate is finally settled. Appoint a receiver: See generally, sees. 564-569. § 1271. All persons named in the information may appear and answer, and may traverse or deny the facts stated in the information, the title of the Code Civ. Proc— 43. § 1271 ESCHEATED ESTATES. 506 State to lands and tenements therein mentioned, at any time before the time for answering ex- pires, and any other person claiming an interest in such estate may appear and be made a defend- ant, and by motion for that purpose in open court within the time allowed for answering; and if no person appears and answers within the time, then judgment must be rendered, that the State be seized of the lands and tenements in such infor- mation claimed. But if any person appear and deny the title set up by the State, or traverse any material fact set forth in the information, the is- sue of fact must be tried as issues of facts are tried in civil actions. If, after the issues are tried, it appears from the facts found or admitted that the State has good title to the land and tenements in the information mentioned, or any part thereof, judgment must be rendered that the State be seiz- ed thereof, and recover costs of suit against the defendants. In any judgment rendered, or that has heietofore been rendered by any court of competent jurisdiction, escheating real property to the State, on motion of the attorney-general, the court shall make an order that said real prop- erty be sold by the sheriff of the county where the same is situate, at public sale, for gold coin, after giving such notice of the time and place of sale as may be prescribed by the court in the said order; that the sheriff shall, within five days after such sale, make a report thereof to the court, and upon the hearing of said report, the court may examine the said report and witnesses in relation to the same, and if the proceedings were unfair, or the sum bid disproportionate to the value, and if it appear that a sum exceeding such bid at least ten per cent, exclusive of the expense of a new sale, may be obtained, the court may vacate the sale, and 507 ESCHEATED ESTATES. § 1272 direct another sale to be had, of which notice must be given, and the sale in all respects con- ducted as if no previous sale had taken place. If an offer of ten per cent more in amount than that named in the report be made to the court in writ- ing-, by a responsible person, the court may, in its discretion, accept such offer, and confirm the sale to such person, or order a new sale. If it ap- pears to the court that the sale was legally made, and fairly conducted, and that the sum bid is not disproportionate to the value of the property sold, and that a greater sum than ten per cent, exclu- sive of the expense of a new sale, cannot be ob- tained, or if the increased bid above mentioned be made and accepted by the court, the court must make an order confirming the sale, and directing the sheriff, in the name of the State, to execute to purchaser or purchasers a conveyance of said property sold; and said conveyance shall vest in the purchaser or purchasers all the right and title of the State therein, and the sheriff shall, out of the proceeds of such sale, pay the cost of said pro- ceedings incurred on behalf of the State, including the expenses of malving such sale, and also an attorney's fee, if additional counsel was employ- ed in said proceedings, to be fixed by the court, not exceeding ten per cent on the amount of such sale, and the residue thereof shall be paid by said sheriff into the State treasury. [Amendment ap- proved March 2, 1881; Stats. 1881, p. 11. In effect March 2, 1881.] Proceedings, appearance: Sec. 1014; answer: Sec. 437; judgment: Sees. 585, 6G4; trial: Sees. 600- 645; issue of fact: Sees. 590, 592; costs: Sees. 1021 et seq. § 1272. Within twenty years after judgment in any proceeding had under this title, a person not 5 1272 ESCHEATED ESTATES. 508 a party or privy to such proceeding may file a petition in tlie Superior Court of the County of Sacramento, showing his claim or right to the property, or the proceeds thereof. A copy of such petition must be served on tlie attorney general at least twenty days before the hearing of the petition, who must answer the same; and the court tliereupon must try the issue as issues are tried in civil actions, and if it be determined that such person is entitled to the property, or the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds paid into the State treasurj% then it must order the controller to draw his warrant on the treasury for the pay- ment of the same, but without interest or cost to the State, a copy of which order, under the seal of the court, shall be a sufficient voucher for drawing such warrant. All persons who fail to appear and file their petitions within the time lim- ited are forever barred; saving, however, to in- fants, married women, and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petitions at any time within the time limited, or five yeai's after their respective disabilities cease. [Amend- ment approved April 16, 1880; Amendments 1880, p. 110. In effect April 16, 1880.] 509 CHANGE OF NAMES. §§ 1275, 1273 TITLE IX. OF CHANGE OF NAMES. § 1275. Jurisdiction. § 1276. Application for change of name, how made. § 1277. Publication of petition for. § 1278. Hearing of application and remonstrance. § 1279. Return by county clerk. § 1275. Applications for cliange of names must be heard and determined by the Superior Courts. [Amendment approved April 23, 1880; Amend- ments 1880, p. 117. In effect April 23, 1880.] § 1276. All applications for cliange of names must be made to the Superior Court of the coun- ty where the person whose name is proposed to be changed resides, by petition, signed by such person; and if such person is under twenty-one years of age, if a male, and under the age of eighteen years, if a female, by one of the parents, if living, or if both be dead, then by the guard- ian; and if tliere be no guarilian, then by some near relative or friend. The petition must speci- fy the place of birth and residence of such per- son, his or her present name, the name proposed, and the reason for such change of name; and must, if the father of such person be not living, name, as far as known to the petitioner, the near relatives of such person, and tlieir place of resi- dence. Any religious, benevolent, literary, scien- tific, or other corporation, or any corporation bearing or having for its name, or using or being known by the name of, anj^ benevolent or char- itable order or society, may, by petition, apply to the Superior Court of the county in which its ar- ticles of incorporation were originally filed, or in which the property of such incorporation is sit- §§ 1277-1279 CHANGE OP NAMES. 510 uated, for a change of its corporate name. Such petition must be signed by a majority of the Di- rectors or Trustees of the corporation, and must specify the date of the formation of the corpora- tion, its present name, the name proposed, and the reason for such change of name. Upon tiling such petition on behalf of such corporation, the same proceedings shall be had, as upon applica- tions for changes of names of natural persons, and no banking corporation hereafter organized shall adopt or use the name of any friendly asso- ciation. [Amendment approved March 12, 1885; Stats. 1885, p. 112. In effect March 12, 1885. J § 1277. A copy of such petition must be pub- lished for four successive weeks, in some news- paper printed in the county, if a newspaper be printed therein, but if no newspaper be printed in the county, a copy of such petition must be posted at three of the most public places in the county for a like period, and proofs must be made of such publication before the petition can be considered. § 1278. Such application must be heard at such time as the court may appoint, and objections may be filed by any person who can, in such ob- jections, show to the court good reason against such ciiange of name. On the hearing, the court may examine on oath any of the petitioners, re- monstrants, or other persons, touching the appli- cation, and may make an order changing the name, or dismissing the application, as to the court may seem right and proper. [Amendment approved April 23, 1S80; Amendments 1880, p. 117. In effect April 23, 1880.] § 1279. Each county clerk shall, annually, in the month of January, make a return to the oflice 511 ARBITRATIONS. §§ 1281, 1282 of the Secretary of State of all changes of names made in the Superior Court of his county under this title. Such return shall show the date of the decree of the court, original name, name decreed, and residence. Such returns shall be published in a tabular form with the statutes first published thereafter. [Amendment approved April 23, 1880; Amendments 1880, p. 118. In effect April 23, 1880.] TITLE X. OF ARBITRATIONS. § 1281. What may be submitted to arbitration, and when. § 1282. Submission to arbitration to be in writing. § 1283. Submission may be entered as an order of the court. Revocation. § 1284. Powers of arbitrators. § 1285. Majority of arbitrators may determine any ques- tion. They must be sworn. § 1286. Award to be in writing. When judgment to be en- tered. § 1287. Award may be vacated in certain cases. § 1288. Court may, on motion, modify or correct the award. § 1289. Decision, on motion, subject to appeal, but not the judgment entered before motion. § 1290. If submission be revoked and an action brought, what to be recovered. § 1281. Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification does not in- clude questions relating merely to the partition or boundaries of real property. § 1282. The submission to arbitration must be in writing, and may be to one or more persons. §§ 1283-1285 ARBITRATIONS. 512 § 1283. It may be stipulated in tlie submission ttiat it be entered as an order of the Superior Court, for -which purpose it must be tiled with the clerk of the county where the parties, or one of them, reside. The clerk must thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbi- trators, the date of the submission, when filed, and the time limited by the submission, if any, within which the award must bo made. When so entered, the submission cannot be revoked without the consent of both parties. The arbitrators may be compelled by the court to make an award, and the award may be enforced by the court in the same manner as a judgment. If the submission is not made an order of the court, it may be re- voked at any time before the award is made. [Amendment approved April 15, 1880; Amend- ments 1880, p. 74. In effect April 15, 1880.] Itegister of actions generally: Sec. 1052. § 1284. Arbitrators have power to appoint a time and place for hearing, to adjourn from time to lime, to administer oaths to witnesses, to hear the allegations and evidence of the parties, and to make an award thereon. § 1285. All the arbitrators must meet and act together during the investigation; but when met, a majority may determine any question. Before acting, they must be sworn before an officer au- thorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in con- troversy, and to make a just award according to their understanding. Majority acting: Sec. 1053. 513 ARBITRATIONS. §§ 12S6-1288 § 1286. The award must be iu writing, signed by the arbitrators, or a majority of them, and de- livered to the parties. When the submission is made an order of the court, the award must be filed with the clerli:, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the applica- tion of a party, and on filing an attidavit, showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entrj- of judgment has been served, the award must be entered by the clerk in the judgment booic, and thereupon has the effect of a judgment. § 1287. The court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitra- tors, or not, in its discretion: 1. That it was procured by corruption or fraud; 2. That the arbitrators were guilty of miscon- duct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refus- ing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced; 3. That the arbitrators exceeded their powers in making their aAvnrd; or that they refused, or improperly omitted, to consider a part of the mat- ters submitted to them; or that the award is in- definite, or cannot be performed. Referee's report: Sees. G43-G4.'). § 1288. The court may, on motion, modify or correct the award, where it appears: 1. That there was a miscalculation in figures upon which it was made, or that there is a mis- §§ 1289, 1290 ARBITRATIONS. 514 take in the description of some person or property therein; 2. "S\'hen a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters submitted; 3. AVhen the aAvard, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. § 1289. The decision upon the motion is sub- ject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before a motion made can- not be subject to appeal. Motion to vacate or modify award: Sees. 1287, 1288. Appealable orders: Sec. 939. § 1290. If a submission to arbitration be re- voked, and an action be brought therefor, the amount to be recovered can only be the costs and damages sustained in preparing for and attending the arbitration. Appealable orders: Sec. 939. 515 PROCEEDINGS IN PROBATE COURT. TITLE XI. OF PROCEEDINGS IN PROBATE COURT. Chapter I. Of jurisdiction, §§ 1294-1295. II. Of the probate of wills, §§ 1298-1346. III. Of executors and administrators, their letters, bonds, removals, and sus- pensions, §§ 1349, 1440. lY. Of the inventory and collection of the effects of decedents, §§ 1443-1461. V. Of the provisions for support of fam- ily, and of the homestead, §§ 1464- 1486. VI. Of claims against the estate, §§ 1490- 1513. VII. Of sales and conveyance of property to decedent, §§ 1516-1576. VIII. Of the powers and duties of executors and administrators, and of the man- agement of estates, §§ 1581-1591. IX. Of the conveyance of real estate by executors and administrators in cer- tain oases, §§ 1597-1607. X. Of accounts rendered by executors and administrators, and of the pay- ment of debts, §§ 1612-1653. XI. Of the partition,, distribution, and final settlement of estates, §§ 1658- 1698. XII. Of orders, decrees, process, minutes, records, and appeals, §§ 1704-1722. XIII. Of public administrator, §§ 1726-1743. XIV. Of guardian and ward, §§ 1747-1809. §§ 1294, 1295 JURISDICTION. 516 CHAPTER I. OP JURISDICTION. § 1294. Jurisdiction of Probate Court over the estate, when exercised. § 1295. When jurisdiction decided by first application. § 1294. Wills must be proved, and letters testa- mentary or of administration granted: 1. In the county of wliieli tlie decedent was a resident at tlie time of bis deatb, in whatever place be may bave died; 2. In tbe county in wbicb tbe decedent may bave died, leaving estate therein, be not being a resident of tbe State; o. In tbe county in wbicb any part of tbe es- tate may be, ibe decedent having died out of the estate, and not resident thereof ac the time of bis death; 4. In tbe county in wbicb any part of tbe es- tate may be, tbe decedent not being a resident of the State, and not leaving estate in tbe county in wbicb be died; 5. In all other cases, in the county where ap- plication for letters is tirst made. Probate matters, jurisdiction of Superior Courts in: Sec. TO, subd. 4. § 1295. AVheu tbe estate of the decedent is in more than one county, be having died out of the State, and not having been a resident thereof at tbe time of bis death, or being such non-resident,, and dying within the State, and not leaving estate in the county where he died, tbe Superior Court of that county in which application is first made, for letters testamentary or of administration, has exclusive jurisdiction of the settlement of tbe es- tate. [Amendment approved April 16, 1880;. Amendments 1880, p. 77. In effect April IG, 1880.] 517 PROBATE OF WILLS. § 1298 CHAPTER II. OP THE PROBATE OF WILLS. Article I. Petition, Notice, and Proof. II. Contesting Probate of Will. III. Probate of Foreign Wills. IV. Contesting Will after Probate. v. Probate of Lost or Destroyed Will. VI. Probate of Nuncupative Wills. ARTICLE I. PETITION, NOTICE, AND PROOF. § 1298. Custodian of will to deliver same, to whom. Pen- alty. § 1299. Who may petition for probate of will. § 1300. Contents of petition. § 1301. When executor forfeits right to letters. § 1302. Will to accompany petition, or its presentation prayed for and how enforced, 9 1303. Notice of petition for probate, how given. § 1304. Heirs and named executors to be notified, how. 5 1305. Petition may be presented to judge at chambers, and what judge may do. § 1306. Hearing proof of will after proof of service of no- tice. § 1307. Who may appear and contest the will. § 1308. Probate, when no contest. § 1309. Olographic wills. § 1298. Every custodian of a will, within thir- ty days after receipt of information that the maker thereof is dead, must deliver the same to the Superior Court having jurisdiction of the es- tate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all dam- ages sustained by any one injured thereby. [Amendment approved April IG, 1880; Amend- ments 1880, p. 77. In effect April 16, 1880. j Code Civ. Proc— 44. §§ 1299-1302 PROBATE OF WILLS. 518 § 1299. xiuy executor, devisee, or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdic- tion to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the State, or a nuncupative will. § 1300. A petition for the probate of a will must show: 1. The jurisdictional facts; 2. Whether the person named as executor con- sents to act, or renounces his right to letters testa- mentary; 3. The names, ages, and residence of the heirs and devisees of the decedent, so far as known to the petitioner; 4. The probable value and character of the property of the estate; 5. The name of the person for whom letters testamentary are prayed. No defect of form, or in the statement of juris- dictional facts actually existing, shall make void the probate of a will. [Amendment approved March 24. 1874; Amendments 1873-4, p. 356. In effect July 1, 1874.] § 1301. If the person named in a will as ex- ecutor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testa- mentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint nny other competent person administra- tor, unless good cause for delay is shown. § 1302. If it is alleged in any petition that any 519 PROBATE OF WILLS. §§ 1303, 130i will is in the possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it at a time named in the order. If he has possession of the will, and neglects or refuses to produce it in obedience to the order, he may, by warrant from the court, be commit- ted to the jail of the county, and be kept in close confinement until he produces it. Probate orders and citations: Sees. 1704-1711. Imprisonment until order obeyed: Sec. 1219. § 1303. AVhen the petition is filed and the will produced, the clerk of the court must set the pe- tition for hearing by the court upon some day not less than ten nor more than thirty days from the production of the will. Notice of the hearing shall be given by such clerk by publishing the same in a newspaper of the county; if there is none, then by three written or printed notices posted at three of the most public places in the county. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication; and if in a newspaper published oftener than once a week, it shall be so published that there must be at least ten days from the first to the last day of publi- cation, both the first and the last day being in- cluded. If the notice is by posting, it must be given at least ten days before the hearing. [Amendment approved March 3, 1881; Stats. 1881, p. 23.] Publication of notice: Sec. 1705. § 1304. Copies of the notice of the time ap- pointed for the probate of the will must be ad- dressed to the heirs of the testator resident in §§ 1305-1307 PROBATE OF WILLS. 520 the State, at their places of residence, if knowu to the petitioner, and deposited in the postoflice, with the postage thereon prepaid, at least ten days before the hearing. If their places of residence be not known, the copies of notice may be addressed to them, and deposited in the postoffice at the county seat of the county where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. Proof of mail- ing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten days before the day of hearing is equivalent to mailing. [Amendment approved March 24, 1S74; Amendments 1873-4, p. 357. In effect July 1, 1874.] § 1305. A judge of the superior court may at any time make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses. [Amendment approved March 31, 1891; Stats. 1891, 427.] Probate poAvers at chambers: Sec. 106. Probate orders and processes: Sec. 1704 et seq. § 1306. At the time appointed for the hear- ing, or the time to which the hearing may have been postponed, the court, unless the parties ap- pear, must require proof that the notice has been given, which being made, the court must hear testimony in i^roof of the will. [Amendment ap- proved Marcli 24. 1874; Amendments 1873-4. p. 357. In effect July 1, 1874.] Testimony in proof of the will: Sees. 1308, 1309. 1315, 131G. § 1307. Any person interested may appear and 521 PROBATE OF WILLS. §§ 1308, 1309 contest the Avill. Devisees, legatees, or heirs of au estate may contest tlie will through their guar- dians, or attorneys appointed by themselves or by the court for that purpose; but a contest made by an attorney appointed by the court does not bar a contest after probate by the party so represent- ed, if commenced within the time provided in ar- ticle four of this chapter; nor does the non-ap- pointment of an attorney by the court of itself invalidate the probate of a will. [Amendment approved ^Nlarch 24, 1874; Amendments 1873-4, p. 357. In effect July 1, 1874.] Contest: Sec. 1312 et seq. Guardians: Sees. 372, 373, 1747-1809. Attorneys, generally: Sees. 275-299. Attorney appointed by the court: Sec. 1718. § 1308. If no person appears to contest the probate of a will, the court may admit it to pro- bate on the testimony of one of the subscribing witnesses only, if he testifies that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution. Admitting to probate, where contest: Sees. 1314, 1317, 1318; conclusiveness of, sec. 1908, subd. 1. Will was executed, proof of execution of writ- ing: Sec. 1940. § 1309. An olographic will may be proved in the same manner that other private writings are proved. Private writings, how proved: Sec. 1940. Hwy^^tok a3//^A § 1312 PROBATE OF WILLS. 522 AirncLE II. CONTESTING PROBATE OF WILLS. § 1312. Contestant to file grounds of contest, and petition- er to reply. § 1313. How jury obtained and trial had. § 1314. Verdict of the jury. Judgment. Appeal. § 1315. Witnesses, who and how many to be examined. Proof of handwriting, admitted, when. § 1316. Testimony reduced to writing for future evidence. § 1317. If proved, certificate to be attached. § 1318. Will and proof to be filed and recorded. § 1312. If any one appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the peti- tioner and other residents of the county interested in the estate, any one or more of Avhom may de- mur thereto upon any of the grounds of demurrer provided for in part two, title six, chapter three, of this Code. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is over- ruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving: 1. The competency of the decedent to make a last will and testament; 2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud, or undue influence; 3. Tlie due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other questions substantially affecting the validity of the will— 523 PROBATE OF WILLS. §§ 1313, 1314 Must, on request of either party in writing, (tiled three days prior to the day set for the hear- ing), be tried by a jury. If no jury is demanded, the court must try and determine the issues join- ed. On the trial, the contestant is plaintiff and the petitioner is defendant. Contestants: Sec. 1307. Contest, after probate: Sec. 1327 et seq.; through attorney appointed by the court, sec. 1307. J]xecution: See sec. 1315. Grouads of demurrer: Sees. 430-434. Fart 2, title 0, chapter 3: See ante, sec. 430. Attorney, court may appoint, to represent: Sec. 171S. Service, etc.: Sees. 1010-1017. § 1313. When a jury is demanded, the Supe- rior Court must impannel a jury to try the case, in the manner provided for impanneling trial ju- ries in courts of record; and the trial must be conducted in accordance -svith the provisions of part two, title eight, chapter four, of this Code. A trial by tiie court must be conducted as pro- vided in part two, title eight, chapter five, of this Code. [Amendment approved April 16, 1880; Amendments 1880, p. 78. In effect April 16, 1880.] Trial juries, in courts of record, summoning: Sees. 225-228; impanneling, sees. 240, 247. Conduct of trial: Sec. 607; sees. 600-628. Trial by the court: Sees. 631-636. Transfer of proceeding: Sees. 397, 398, 1431-1433. § 1314. The jury, after hearing the case, must return a special verdict upon the issues submit- ted to them by the court; upon which the judg- ment of the court must be rendered, either admit- ting the will to probate or rejecting it. In either case, the proofs of the subscribing M^tnesses must §§ 1315-1317 PROBATE 01^^ WILLS. 524 be reduced to writing. If tlie will is admitted to probate, the judgment, Avill, and proofs must be recorded. Special verdict, conclusiveness of: Sec. 1317; ver- dict, generally, sees. 624-628. Proofs reduced to writing: See sec. 1316. § 13J5. If the will is contested, all the sub- scribing witnesses who are present in the county, and who are of sound mind, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses re- side in the county at the time appointed for prov- ing the will, the court may admit the testimony of other wi tnesses to prove the sanity of the testa- tor and the execution of the will; and as evi- dence of the execution it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them. Writings, proof of execution: Sec. 1940. Witnesses, generally: Sec. 1878-1884; attend- ance of, procuring, sec. 1985 et seq. § 1316. The testimony of each witness, re- duced to writing and signed by him, shall be good evidence in any subsequent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has per- manently removed from this State. § 1317. If the court is satisfied, upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, men- ace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge 525 PROBATE OF WILLS. §§ 1318, 1323 and attested by the seal of the court, must be at- tached to the will. [Amendment approved April 15, 1880; Amendments 1880, p. 01. In effect April 10, 1880.] Seal required: Sec. 153, subd. 2. § 1318. The will, and a .certificate of the proof thereof, must be filed and recorded by the clerk, and the same, when so filed and recorded, shall constitute part of the record in the cause or pro- ceeding. All testimony shall be filed by the clerk. [Amendment approved April 15, 1880; Amend- ments 1880, p. 61. In effect April 15, 1880.] ARTICLE III. PROBATE OF FOREIGN WILLS. § 1322. Wills proved in other States to be recorded, when and where. § 1323. Proceedings on the production of a foreign will. § 1324. Hearing proofs of probate o foreign will. § 1322. All wills duly proved and allowed in any other of the United States, or in any foreign country or State, may be allowed and recorded in the Superior Court of any county in which the testator shall have left any estate. [Amendment approved April 16, 1880; Amendments 1880, p. 61. In effect April 16, 1880.] § 1323. AVhen a copy of the will and the pro- bate thereof, duly authenticated, shall be pro- duced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing; notice where- of must be given as hereinbefore provided for an original petition for the probate of a will. §§ 1324, 1327 PROBATE OF WILLS. 526 Foreign executor, no extra territorial authority: See sec. 1913. Notice as for an original petition: See sec. 1303 et seq. Attorney for absent heirs: Sec. 1718. Petition, notice, etc.: Sees. 1299-1318. § 1324. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate in any other of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in con- formity with the laws of this State, it must be ad- mitted to probate and have the same force and effect as a will first admitted to probate in this State, and letters testamentary or of administra- tion issued thereon. Letters testamentary or of administration: Sees. 1349-1362. ARTICLE lY. CONTESTING WILL AFTER PROBATE. § 1327. The probate may be contested within one year. § 1328. Citation to be issued to parties interested. § 1329. The hearing had on proof of service. § 1330. Petitions to revoke probate of will tried by jury or court. Judgment, what. § 1331. On revocation of probate, powers of executor, etc. cease, but not liable for acts in good faith. § 1332. Costs and expenses, by whom paid. § 1333. Probate, when conclusive. One year after removal of disability given to infants and others. § 1327. When a will has been admitted to pro- bate, any person interested may, at any time with- in one year after such probate, contest the same or the validity of the will. For tliat purpose he . ^ must file in the court in which the will was I ^< 527 PROBATE OF WILLS. §§ 1328-1330 proved, a petition in writing, containing his al- legations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revolted. Allegations against validity of will: See sec. 1312. Probate, conclusive: Sec. 1333. § 1328. Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the State, so far as known to the petitioner; or to their guardians, if any of them are minors; or to their personal rep- resentatives, if any of them are dead; requiring them to appear before the court on some day of a regular term, therein specified, to show cause why -^ the probate of the will should not be revolted. Nj [Amendment approved March 24, 1874; Amend- ^ ments 1873-4, p. 358. In effect July 1, 1874.] Citation: See sees. 1707-1711. Guardians: Sec. 1722; sec. 1747 et seq. § 1329. At the time appointed for showing cause, or at any time to which the hearing is ^ postponed, personal service of the citations having C? been made upon any persons named therein, the ^ court must proceed to try the issues of fact joined fin the same manner as an original contest of a will. 3" Proof of notice: See sec. 1306. Try the issues joined: See sec. 1312. § 1330. In all cases of petitions to revoke the probate of a will, wherein the original probate •2 was granted without a contest, on written demand ;: of either party, filed three days prior to the hear- §§ 1331-1333 PROBATE OF WILLS. 528 ing, a trial by jury must be had as in cases of ttie contest of an original petition to admit a will to probate. If, upon hearing the proofs of the parties, the jury shall find, or if no jury is had, the court shall decide, that the will is for any reason invalid, or that it is not sutticiently proved to be the last will of the testator, the probate must be annulled and revoked. Jury, trial by: Sees. 1313, 1314. § 1331. Upon the revocation being made, the powers of the executor or administrator with the will annexed must cease; but such executor or ad- ministrator shall not be liable for any act done in good faith previous to the revocation. Acts before revocation, valid: Sec. 1428. § 1332. The fees and expenses must be paid by the party contesting tlie validity or probate of the will, if the will in probate is confirmed. If the probate is revolved, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs. Costs, generally: Sec. 1021 et seq. § 1333. If no person, within one year after the probate of a w'ill, contest the same or the valid- ity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind a lilvc period of one year after their respective dis- abilities are removed. [Amendment approved March 24, 1874; Amendments 1873-4, p. 358. In effect July 1, 1874.] Conclusiveness of probate: Sec. 1908, subd. 1.: see. also, sec. 1327, ante. 520 PROBATE OF WILLS. §§ 1338-1340 ARTICLE V. PROBATE OF LOST OR DESTROYED WILL. § 1338. Proof of lost or destroyed will to be taken. § 1339. Must have been in existence at time of death. § 1340. To be certified, recorded, and letters thereon granted. § 1341. Court to restrain injurious acts of executors or ad- ministrators during proceedings to prove lost will. § 1338. Whenever any will is lost or destroyed, the Superior Court must take proof of the execu- tion and validity thereof, and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of Avills in either cases. All the testimony given must be reduced to writing, and signed by the witnesses. [Amend- ment approved April IG, 1880; Amendments 1880, p. 78. In effect April IG, 1880.] Notice as to all persons interested: Sees. 1303, 1304; by citation, sees. 1707-1711; service of pa- pers, sec. 1010 et sea. § 1339. No will shall be proved as a lost or de- ;testator, or is shown to have been fraudulently r destroyed in the lifetime of the testator, nor uii- v'less its provisions are clearly and distinctly ^proved by at least two credible witnesses. § 1340. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. and letters testamentary or of administration, M-ith the will annexed, must be issued thereon in Code Civ. Proc— 45. §§ 1341, 1344 PROBATE OF WILLS. ^ 530 the same manner as upon wills produced and duly- proved. The testimony must be reduced to writ- ing, signed, certified, and filed as in other eases, and sliall have the same effect as evidence as pro- vided in section one thousand three hundred and sixteen. [Amendment approved April 16, 1880; Amendments 1880, p. 78. In effect April 16, 1880.] Certificate: Sec. 1317. . ^./ Letters testamentary, etc.: Sees. 1349-1362. § 1341. If before, or during the pendency of an application to prove a lost or destroyed will, let- ters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or ex- ecutors so appointed from any acts or proceedings which would be injurious to the legatees or devi- sees claiming under the lost or destroyed will. ARTICLE VI. THE PROBATE OF NUNCUPATIVE WILLS. § 1344. Nuncupative wills, when and how admitted to pro- bate. § 1345. Additional requirements in probate of nuncupative wills. § 1346. Contests and appointments to conform to provi- sions as to other wills. § 1344. Nuncupative wills may at any time, within six months after the testamentary words are spolvcn by the decedent, be admitted to pro- bate, on petition and notice as provided in article one, chapter two, of this title. The petition, in addition to the jurisdictional facts, must allege that the testamentary words or the substance thereof were reduced to writing within thirty 531 PROBATE OF WILLS. §§ 1345, 1346 days after they were spoken, which writing must accompany the petition. Nuncupative wills, Civil Code, sees. 1288-1291. Petition and notice: Sees. 1298-1309. § 1345. The Superior Court must not receive or entertain a petition for the probate of a nuncu- pative will until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife (if any), and all other persons res- ident in the State or county interested in the es- tate, are notified as hereinbefore provided. [Amendment approved April 16, 1880; Amend- ments ISSO, p. 79. In effect April 16, 1880.] § 1346. Contests of the probate of nuncupative wills, and appointments of executors and admin- istrators of the estate devised thereby, must be had, conducted, and made as hereinbefore pro- vided in cases of the probate of written wills. Probate contests: Sec, 1312 et seq.; sec. 1327 et seq. Contesting appointment of executors, etc.: Sees. 1351-1374. § 1348 EXECUTORS AND ADMINISTRATORS. 532 CHAPTER III. OF EXECUTORS AND ADMINISTRATORS, THEIR LET- TERS, BONDS, REMOVALS, AND SUS- PENSIONS. ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRA- TION, WITH THE WILL ANNEXED, HOW AND TO WHOM ISSUED. § 1348. Corporations as executors. § 1349. To whom letters on proved will to issue. § 1350. Who are incompetent as executors or administra- tors. Letters with will annexed to issue, when. § 1351. Interested parties may file objections. § 1352. Unmarried woman executrix or administratrix mar- rying, her authority ceases. Married woman named may be executrix, but not administratrix. § 1353. Executor of an executor. § 1354. Letters of administration durante minore aetate. § 1355. Acts of a portion of executors valid. § 1356. Authority of administrators with will annexed. Letters, how issued. § 1348. Corporations, authorized by their arti- cles of incorporation to act as executor, admin- istrator, guardian of estates, assignee, receiver, depository, or trustee, and having a paid up capi- tal of not less than two hundred and fifty thou- sand dollars, of wliieli one hundred thousand dol- lars shall have been actually paid in in cash, may be appointed to act in such capacity in like man- ner as individuals. In all cases in which it is re- quired that an executor, administrator, guardian, assignee, receiver, depository, or trustee, shall qualify by talcing and subscribing an oath, or in which an affidavit is required, it shall be a suffi- cient qualification by such corporation, if such oath shall be taken and subscribed, or such affi- 533 EXECUTORS. ETC. §§ 1349. 1350 davit made, by the president or secretary or man- ager tliereof; and sucli otticer shall be liable for the failure of such corporatiou to perform any of the duties required by law to be performed by individuals acting in lil^e capacity and subject to lilve penalties; and such corporation shall be lia- ble for such failure to the full amount of its capital stock and upon the bond required upon its assuming the trusts provided for herein. [New section approved March 5, 1887; Stats. 1887, p. 21. In effect March 5. 1887.] § 1349. The court admitting a will to probate, after the same is proved and allowed, must issue .^, letters thereon to the persons named therein as S: executors "who are competent to discharge the >i trust, who must appear and qualify,, unless ob- ^ jection is made as provided in section thirteen ^ hundred and fifty-one. [5 Letters testamentary, form of: Sec. 13G0. Qualification of executors: Sees. 1387-1407; pow- ers before: Cirii Code, sec. 1373. § 1350. No person is competent to serve as executor who, at the time the will is admitted to >^ probate, is: Nj< 1. Under the age of majority; > 2. Convicted of an infamous crime; ^ 3. Adjudged by the court incompetent to exe- ^ cute the duties of the trust by reason of drunk- ^ enness, improvidence, or want of understanding J or integrity. If the sole executor or all the executors are incompetent, or renounce, or fail to apply for let- ters, or to appear and qualify, letters of adminis- tration, with the will annexed, must be issued as designated and provided for the grant of letters in cases of intestacy. [Amendment approved April §§ 1351-1354 EXECUTORS, ETC. 534 1, 187S; Amendments 1877-8, p. 111. In effect sixty days after passage.] Incompetent to serve as executors, subd. 1, minor: See sec. 1354, subd. 3. Some of executors unable to act: Sec. 1354. Marriage, as affecting competency: Sec. 1352. Letters of administration with will annexed: See. 1356. § 1351. Any person interested in a will may file objections in writing, to granting letters testa- mentary to the persons named as executors, or any of them, and the objections must be heard and determined by the court; a petition may, at the same time, be filed for letters of administra- tion with the will annexed. Letters of administration with will annexed: Sec. 1356. § 1352. A married woman may be appointed an executrix. Tlie authority of an executrix who was unmarried when appointed is not extinguish- ed nor affected by her marriage, [Amendment approved March 19, 1891; Stats. 1891, p. 136.] Married woman, not to be administratrix: Sec. 1370. § 1353. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the es- tate of the first testator, left unadministered, must be issued. Letters of administration with will annexed: Sec. 1356. § 1354. Where a person absent from the State, or a minor, is named executor— if there is an- 535 EXECUTORS, ETC. §§ 1355, 1356 other executor who accepts the trust and qualifies —the latter may have letters testamentary and administer the estate until the return of the ab- sentee or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of administration with the will annexed must be granted; but the court may, in its discretion, revoke them on the return of the absent executor, or the arrival of the minor at the age of majority. § 1355. When all the executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appointed and should act together; where there are two executors or ad- ministrators, the act of one alone shall be effect- ual, if the other is absent from the State, or la- boring under any legal disability from serving, or If he has given his coexecutor or coadministra- tor authority in writing, to act for both; and where there are more than two executors or ad- ministrators, the act of a majority is valid. Remainder of executors acting, where some m- capacitated, etc.: Sec. 1425. Joint authority: Sec. 15. Authority of executors, before qualifying. Civ. Code, sec. 1373; before letters revoked, sec. 1428; powers, etc., generally, sec. 1581 et seq.; removals, etc., sec. 1436 et seq.; foreign executor, sec. 1913. Revocation of probate, effect of: Sec. 1331. Removals and suspensions: Sees. 1436 et seq. § 1356. Administrators with the will annexed ^ have tlie same authority over the estates which ai f'xecutors named in the will would have, and their :: acts are as effectual for all puii^oses. Their let- §§ 1360, 1361 EXECUTORS, ETC. 536 ters must be signed by the clerk of the court, and bear the seal thereof. Executor of executor: See sec. 1353. ARTICLE IT. FORM OF LETTERS. § 1360. Form of letters testamentary. § 1361. Form of letters of administration with the will an- nexed, § 1362. Form of letters of administration. § 1360. Letters testamentary must be sub- stantially in the following form: State of Califor- nia, county, or city and county, of . The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the Superior Court of the county, or city and county, of , C. D., who is named therein as such, is hereby appointed executor. Witness, G. H., clerk of the Superior Court of the county, or city and county, of , with the seal of the court affixed, the day of , A. D. 18—. (Seal.) By order of the court. G. H., Clerli. [In etfect April 16, ISSO.] Seal, required: Sec. 83, subd. 2; of courts, gen- erally, sees. 1-17-153. § 1361. Letters of administration, with the will annexed, must be substantially in the follow- ing form: State of California, county, or city nnd county, of . The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the Superior Court of the county, or city and county, of . and there be- ing no executor named in the will (or as the case may bo), C. D. is hereby appointed administrator with the will annexed. Witness, G. H., Clerk of 537 EXECUTORS, ETC. §§ 1362, 1365 the Superior Court of the county, or city and county, of , with the seal of the court affixed, the day of , A. D. 18—. (Seal.) By order of the court. G. H., Clerk. [In effect April 16, 1880.] § 1362. Letters of administration must be signed by the cleric, under the seal of the court, and substantially in the following form: State of California, county, or city and county, of . C. D. is hereby appointed administrator of the estate of A. B., deceased. (Seal.) Witness, G. H., Clerk of the Superior Court of the county, or city and county, of , with the seal thereof affixed, the day of , A. D. 18—. By order of the court. G. H., Clerk. [In effect April 16, 1880.] ARTICLE III. LETTERS OP ADMINISTRATION, TO WHOM AND THE ORDER IN WHICH THEY ARE GRANTED. § 1365. Order of persons entitled to administer. Partner not to administer. § 1366. Preference of persons equally entitled. § 1367. In discretion of Court to appoint administrator, when. § 136S. When minor entitled, who appointed administrator. § 1369. Who are incompetent to act as administrators. § 1370. Married woman not to be administratrix. § 1365. Administration of the estate of a per- son dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to admin- ister only when they are entitled to succeed to his personal estate, or some portion thereof; and they are, respectively, entitled thereto in the following order: 1. The surviving husband or wife, or some com- §§ 1366, 1367 EXECUTORS, ETC. 53S petent person whom he or she may request to have appointed; 2. The children; 3. The lather or mother; 4. The brothers; 5. The sisters; 6. The grandchildren; 7. The next of kin entitled to share in the dis- tribution of the estate; 8. The public administrator; 9. The creditors; 10. Any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of hi& estate. [Amendment approved April 1, 1878; Amendments 1877-S, p. 111. In effect sixty days after passage.] Surviving husband or wife, wife's community property. Civ. Code, sec. 1401. Public administrators, generally: See sees. 1726^ et seq. Subd. 10. Incompetent persons: Sees. 1360, 1370. Itecommendation by one entitled to administer: See sec. 1379. § 1366. Of several persons claiming and equal- ly entitled to administer, males must be preferred to femnles, and relatives of the whole to those of the half blood. § 1367. When there are several persons equal ly entitled to the administration, the court nuiy grant letters to one or more of them; and when a creditor is claiming letters, the court may, in its discretion, at the request of another creditor, 539 EXECUTORS. ETC. §§ 1368-1370 grant letters to any other person legally compe- tent. See sec. 1355, ante. § 1368. If any person entitled to administra- ,^_^tion is a minor or an incompetent person, letters must be granted to his or her guardian, or any N other person entitled to letters of administration, "^ in the discretion of the court. [Amendment ap- ^ proved February 27, 1893; Stats. 1893, p. 52; in ^ effect immediately.] s,) Guardian of minor: Sees. 372, 373, and notes; sees. 1747, 1759. § 1369. No person is competent or entitled to serve as administrator or administratrix who is: 1. Under the age of majority; 2. Not a bona fide resident of the State; 3. Convicted of an infamous crime; 4. Adjudged by the court incompetent to exe- cute the duties of the trust by reason of drunli- enness, improvidence, or want of understanding or integrity. [Amendment approved April 1, 1878; Amendments 1877-8, p. 112. In effect sixty days after passage.] Revoking letters: See sec. 1.383, post. § 1370. A married woman may be appointed administratrix. When an unmarried woman ap- pointed administratrix marries, her authority is not thereby extinguished. [Amendment approved February 24, 1891; Stats. 1891, p. 11. In effect im- mediately.] Married woman as executrix: Sec. 1352. §§ 1371-1373 EXECUTORS, ETC. «40 ARTICLE IV. PETITION FOR LETTERS, AND ACTION THEREON. § 1371, Applications, how made. § 1372. When granted. § 1373. Notice of application. § 1374. Contesting application. § 1375. Hearing of application. § 1376. Evidence of notice. § 1377. Grant to any applicant. § 1378. What proofs must be made before granting letters of administration. § 1379. Letters may be granted to others than those en- titled. § 1371. Petitions for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the clerli of the court, stat- ing the facts essential to give the court jurisdic- tion of the case, and when known to the appli- cant, he must state the names, ages, and residence of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts existed, but are not fully set forth in the petition, and are afterward proved in the course of administration, the decree or order of admin- istration and subsequent proceedings are not void on account of such want of jurisdictional aver- ment. Orders and decrees need not recite the facts: Sec. 1704. § 1372. Letters of administration may be granted by the court at any time appointed for the hearing of the application, or at any time to wliich the hearing is continued or postponed. [Amendment approved April 16, 1880; Amend- ments 1880, p. 79. In effect April 16, 1880.] § 1373. When a petition praying for letters of administration is filed, the clerlv of the court must 541 EXECUTORS, ETC. §§ 1374-1376 set the petition for bearing' by tbe court, and give notice thereof by causing notices to be posted in at least tln-ee public places in the county, one of which must be at the place where the court is held, containing the name of the decedent, the name of the applicant, and the time at which the application will be heard. Such notice must be given at least ten days before the hearing. [Amendment approved March 31, 1891; Stats. 1891, p. 427.] Posting notices: Compare sec. 1303. § 1374. Any person interested may contest the petition, by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administra- tion, and pray that letters be issued to himself. In the latter case the contestant must file a peti- tion, and give the notice required for an original petition, and the court must hear the two peti- tions together. Incompetency of the applicant: Sec. 13G9. Assert his own rights— persons entitled to admin- ister: Sec. 1365. § 1375. On the hearing, it being first proved J that notice has been given as herein required, the V court must hear the allegations and proofs of the 2 parties, and order the issuing of letters of admin- jj Istration to the party best entitled thereto. 1^ Proof of notice: Compare sec. 1306. Conclusive 'evidence: Sec. 1376. Hear the proofs, etc.: See sec. 1378. § 1376. An entry in the minutes of the court, that the required proof was made and no- tice given, shall be conclusive evidence of the fact of such notice. Code Civ. Proc— 46. §§ 1377-1379 EXECUTORS, ETC. 542 § 1377. Letters of administration must be granted to any applicant, tliough it appears tliat there are otlier persons having better rights to the administration, when such persons fail to ap- pear and claim the issuing of letters to them- selves. Other persons having better rights— may pro- cure revocation: See sees. 1388-13SG. § 1378. Before letters of administration are granted on the estate of any person who is repre- sented to have died intestate, the fact of his dy- ing intestate must be proved by the testimony of the applicant or others, and the court may also examine any other person concerning the time, place, and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left any will, and may compel any person to at- tend as a witness for that purpose. Witness— compelling attendance of: Sec. 198.1 et seq. § 1379. Administration may be granted to one or more competent persons, although not other- wise entitled to the same, at the written request of the person entitled, filed in the court. When Ihe person entitled is a non-resident of the State, affidavits, talven ex parte before any ofticer au- tliorized by the laws of this State to take acknowl- edgments and administer oatlis out of this State, may be received as prima facie evidence of the identity of the party, if free from suspicion, and the fact is established to the satisfaction of the court. [Amendment approved April 16, 1880: Amendments 1880, p. 113. In efl'ect xVpril K;, 1880.] Proof of identity.— Aflidavits, sees. 2009-201.5; depositions out of the State, sees. 2024-2028; prima facie evidence, sec. 1833. 543 EXECUTORS, ETC. §§ 1383-1385 ARTICLE V. REVOCATION OF LETTERS AND PROCEEDINGS THEREFOR. § 1383. Revocation of letters of administration. § 1384. When petition filed, citation to issue. § 1385. Hearing of petition for revocation. § 1386. Prior rights of relatives entitles them to revoke prior letters. § 1383. When letters of administration have been granted to any other person than the surviv- ing husband or Avife, child, father, mother, bro- ther, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration may be issued to him. [Amend- ment approved April 16, 1880; Amendments 1880, p. 80. In effect April 16, 1880.] Persons incompetent: Sees. 1369, 1370. Revocation: See sees. 1436-1440. And see sec. 1386. § 1384. When such petition is filed, the clerk must, in addition to the notice provided in sec- tion thirteen hundred and seventy-three, issue a citation to the administrator to appear and an- swer the same at the time appointed for the hear- ing. [Amendment a])proved March 24, 1874; Amendments 1873-4, p. 359. In effect July 1, 1874.] Citation— generally: Sees. 1707-1711. § 1385. At the time appointed, the citation having been duly served and returned, the court § 1386 EXECUTORS AND ADMINISTRATORS 544 must proceed to hear the allegations and proofs of the parties; and if the right of the applicant is established, and he is competent, letters of admin- istration must be granted to him, and the letters of the former administrator revoked, § 1386. The surviving husband or wife, when letters of administration have been granted to a child, father, brother, or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right, and obtain letters of administration, and have the letters before granted revolted in the manner prescribed in the three preceding sections. 545 EXECUTORS AND ADMINISTRATORS. § 1387 AKTICLE VI. OATHS AND BONDS OF EXECUTORS AND ADMINIS- TRATORS, ETC. § 1387. Administrator or executor to take oath. Letters and bond to be recorded. § 1388. Bond of administrator.s, form and requirements of. § 1389. Additional bonds, when required. § 1390. Condition of bonds. § 3^91. Each, or more than one administrator, to give sep- arate bonds. § 1392. Several recoveries may be had on same bond. § 1393. Bonds, and justification of sureties on. Must be ap- proved. § 1394. Citation and requirements of judge on deficient bond. Additional security. § 1395. Right ceases, w^hen. § 1396. When bond may be dispensed with. § 1397. Petition showing failing sureties and asking for further bonds. § 1398. Citation to executor, etc., to show cause against such application. § 1399. Further security may be ordered. § 1400. Neglecting to obey order. § 1401. Suspending powers of executor, etc. § 1402. Further security ordered without application of par- ty in interest. § 1403. Release of sureties. § 1404. New sureties. § 1405. Neglect to give new sureties forfeits letters. § 1406. Application to be determined out of term time. § 1407. Liability on bond. § 1387. Before letters testamentary or of ad- ministration are issued to the executor or admin- istrator, lie must talve and subscribe an oath be- fore some officer authorized to administer oaths, that he will perform, according to law, the du- ties of executor or administrator, whicli oath must be attaclied to the letters. All letters testament- ary and of administration issued to, and all bonds executed by, executors or administrators, with the affidavits and certificates thereon, must be forth- with recorded by the clerk of the court having jur- §§ 1388, 1389 EXECUTORS, ETC. 546 isdiction of the estates, iii books to be kept by bim in his office for that purpose. § 1388. Every person to whom letters testa- mentary or of administration are directed to issue, must, before receiving them, execute a bond to the State of California, with two or more sufficient sureties, to be approved liy the superior court, or a judge thereof. In form, the bond must be joint and several, and the penalty must not be less than twice the value of the personal property, and twice the probable value of the annual rents, profits, and issues of real property belonging to the estate, which values must be ascertained by the superior court, or a judge thereof, by examin- ing on oath the party applying, and any other persons. [Amendment approved April 16, 1880; Amendments 1880, p. 80. In effect April 16, 1880.] Sureties: Sees. 1393, 1394, 1397-1400, 1403, 1404, 1407. Approved by judge, at chambers: Sec. 166. Bond— condition of, sec. 1390; separate, when sec. 1391; recovery on, sees. 1392, 1407; not re- quired, when, sec. 139G; further security, sees. 1389, 1394-1402; stands as undertaking on appeal, sec. 970. § 1389. The superior court, or a judge thereof, must require an additional bond whenever the sale of any real estate belonging to an estate is ordered; but no such additional bond must be re- quired when it satisfactorily appears to the court that the penalty of the bond given before receiv- ing letters, or of any bond given in place thereof, is equal to twice the value of the personal property renin ining in or tliat will come into the possession of tlie executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the 547 EXECUTORS, ETC. §§ 1390-1393 sale of the real estate ordered to be sold. [Amend- ment approved April IG, 1880; Amendments 1880, p. 80. In effect April 16, 1880.] Additional bond may be required of public ad- ministrator: Sec. 1727. Decree settling account binds surety: See sees. 1637, 1638, post. § 1390. The bond must be conditioned that the executor or administrator shall faithfully execute the duties of the trust according to law. Duties of the trustee: See sec. 1580 et seq. § 1391. When two or more persons are ap- pointed executors or administrators, the superior court, or a judge thereof, must require and take a separate bond from each of them. [Amend- ment approved April 16, 1880; Amendments 1880, p. 80. In effect April 16, 1880.] § 1392. The bond shall not be void upon the first recovery, but may be sued and recovered upon from time to time, by any person aggrieved, in his own name, until the whole penalty is ex- hausted. Sued upon, joining defendants: Sec. 383. In his own name, party beneficially interested: Sec. 367. Penalty: Sees. 1388, 1399. Kind of money, payable under bond: Sec. 1407. § 1393. In all cases where bonds or un- dertakings are required to be given, under this title, the sureties must justify thereon in the same manner and in like amounts as required by sec- tion ten hundred and fifty-seven of this Code, and the certificate thereof must be attached to and filed and recorded with the bond or undertak- ing. All such bonds and undertakings must be ap- §§ 1394, 1395 EXECUTORS, ETC. 548 proved by a judge of the superior court before be- ing filed or recorded. [Amendment approved April 10, 1880; Amendments 1880, p. 80. In effect April 16, 1880.] Approved by judge, at chambers: Sec. 166. Examination of sureties, when qualifications questioned: Sec. 1394. § 1394. Before the judge approves any bond required under this title, and after its approval, he may, of his own motion, or upon the motion of any person interested in the estate, supported by affidavit that the sureties, or some one or more of them, are not worth as much as they have jus- tified to, order a citation to issue requiring such sureties to appear before him at a designated time and place, to be examined touching tlieir proper- ty and its value; and the judge must, at the same time, cause a notice to be issued to the executor or administrator requiring his appearance on the return of the citation; and on its return he may examine the sureties and such witnesses as may be produced, touching tlie property of the sureties and its value; and if, upon such examination, he is satisfied that the bond is insufficient, he must require sufficient additional security. [Amend- ment approved April 16, 1880; Amendments 188j, p. 81. In effect April 16, 1880.] Citations: Sees. 1707, 1711. Additional security, effect of failure to give, in time: Sec. 1395. § 1395. If sufficient security is not given with- in the time fixed by the judge's order, the right of such executor or administrator to the administra- tion shall cease, and tlie person next entitled to the administration on the estate, who will exe- cute a sufficient bond, must be appointed to the administration. 549 EXECUTORS, ETC. §§ 1393-1399 § 1396. When it is expressly provided in the will that no bond shall be required of the exec- utor, letters testamentary may issue, and sales of real estate be made and confirmed without any bond, unless the court, for good cause, require one to be executed; but the executor may at any time afterward, if it appear from any cause necessary or proper, be required to file a bond, as in other cases. [Amendment approved March 24, 1874; Amendments 1873-4, p. 360. In effect July 1, 1874.] § 1397. Any person interested in an estate may, by verified petition, represent to the superior court, or a judge thereof, that the sureties of the executor or administrator thereof have become, or are becoming, insolvent, or that they have re- moved, or are about to remove, from the State, or that from any other cause the bond is insutti- cient, and aslv that further security be required. [Amendment approved April 16, 1880; Amend- ments 1880, p. 81. In effect April 16, 1880.] Ask further security, court may : Sec. 1402. § 1398. If the court, or a judge thereof, is sat- isfied that the matter requires investigation, a ci- tation must be issued to the executor or adminis- trator, requiring him to appear, at a time and place to be therein specified, to show cause why he should not give further security. The citation must be served personally on the executor or ad- ministrator, at least five days before the return day. If he has absconded, or "cannot be found, it may be served by leaving a copy of it at his ^ place of residence, or b.v such publication as the court or a judge thereof may order. [Amend- ; ment approved April 16. 1880; Amendments 1880, \ p. 81. In effect April 16, 1880.] ^-§ 1399. On the return of the citation, or at /such other time as the judge may appoint, he §§ 1400-1403 EXECUTORS, ETC. 550 must proceed to hear the proofs and allegations of the parties. If it satisfactorily appears that the security is from any cause insufficient, he may make an order requiring the executor or admin- istrator to give furtlier security, or to file a new bond in the usual form, within a reasonable time, not less than five days. § 1400. If the executor or administrator neg- lects to comply with the order within the time prescribed, the judge must, by order, revoke his letters, and his authority must tliereupon cease. § 1401. When a petition is presented, praying that an executor or administrator be required to give further security, or to give bond, where by the terms of the will no bond was originally re- quired, and it is alleged on oath that the execu- tor or administrator is wasting the property of the estate, the judge may, by order, suspend his poM^ers until the matter can be heard and deter- mined. § 1402. When it comes to his knowledge that the bond of any executor or administrator is from any cause insufficient, the judge, without any application, must cause him to be cited to ap- pear and show cause why he should not give fur- ther security, and must proceed thereon as upon the application of any person interested. [Amend- ment approved April 10, 1880: Amendments 1880, p. 82. In effect April 16, 1880.] § 1403. When a surety of any executor or ad- ministrator desires to be released from responsi- bility on account of future acts, he may make ap- plication to the superior court, or a judge thereof, for relief. The court or judge must cause a cita- tion to the executor or administrator to be issued, and served personally, requiring him to appear at 551 EXECUTORS, ETC. §§ 1404-1407 a time and place to be therein specified, and to give other security. If he has absconded, left, or removed from the State, or if he cannot be found, after due diligence and inquiry, service may be made as provided in section one thousand three hundred and ninety-eight. [Amendment approved April IG, 1880; Amendments 1880, p. 82. In ef- fect April 10, 1880.] § 1404. If new sureties be given to the satis- y faction of the judge, he may thereupon make an ,^ order that the sureties who applied for relief shall < not be liable on their bond for any subsequent act, ^ default, or misconduct of the executor or ad- ^ ministrator. ^ § 1405. If the executor or administrator neg- lects or refuses to give new sureties, to the sat- isfaction of the judge, on the return of the cita- _ tion, or within such reasonable time as the judge v^ shall allow, unless the surety mnking the applica- ::; tion shall consent to a longer extension of time, V the court or judge must, by order, revoke his let- : ters. § 1406. The applications authorized by the nine preceding sections of this chapter may be heard and determined at any time. All orders ^made therein must be entered upon the minutes V. of the court. [Amendment approved April 16, ^ 1880; Amendments 1880, p. 82. In effect April 16, '<1880.] "^ § 1407. The liability of principal and sureties upon the bond of any executor, administrator, or guardian, is in all cases to pay in the kind of money or currency in which the principal is legal- ly liable. [New section approved March 24, 1874; Amendments 1873-4, p. 361. In effect July 1, 1874.] §§ 1411, 1412 EXECUTORS, ETC. ARTICLE YII. SPECIAL ADMINISTRATORS AND THEIR POWERS AND DUTIES. § 1411. Special administrator, when appointed. § 1412. Special letters may be issued out of term time. § 1413. Preference given to persons entitled to letters. § 1414. Special administrator to give bond and take oath. § 1415. Duties of special administrator. § 1413. "When letters testamentary or of administration are granted, special administrator's powers cease. § 1417. Special administrator to render account. § 1411. When there is delay in granting let- ters testamentary or of administration from any cause, or when such letters are granted irregular- ly, or no suftieient bond is tiled as required, or when no application is made for such letters, or when an executor or administrator dies, or is sus- pended, or removed, the superior court, or a judge thereof, must appoint a special administrator to collect and tal^e charge of the estate of the deced- ent in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the es- tate; or he may direct the public administrator of his county to talve charge of the estate. [Amend- ment approved April 16, 1880; Amendments 1880, p. 83. In effect April 16, 1880.] § 1412. The appointment may be made at any time, and Avithout notice, and must be made by entry upon the minutes of the court, specifying llie powers to be exercised by the administrator. Upon such order being entered, and after the person appointed has given bond, the clerk must issue letters of administration to such person in conformity witli the order. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 82. In effect April 16. 1880.] Oath and bond: See sec. 1414. 553 EXECUTORS, ETC. §§ 1413-1415 § 1413. lu making the appointment of a special administrator, the court or judge must give pref- erence to the i)erson entitled to letters testamen- taiT or of administration, but no appeal must be allowed from the appointment. [Amendment ap- l)roved April 10, 1880; Amendments 1880, p. 82. In effect April 16, 1880.] Persons entitled to letters: Sec. 1365 et seq. § 1414. Before any letters issue to any special administrator, he must give bond in such sum as the court or judge may direct, with sureties to the satisfaction of the court or judge, condi- tioned for the faithful performance of his duties; and he must take the usual oath, and have the same indorsed on his letters. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 82. In effect April 16, 1880.] Oath and bond of administrator, etc.: See sees. 1387-1407. § 1415. The special administrator must collect and preserve for the executor or administrator, all the goods, chattels, debts, and effects of the decedent; all incomes, rents, issues, and profits, claims, and demands of the estate'; must take the charge and management of, enter upon and pre- ^serve from damage, waste, and injury, the real ^^ estate; and for any such and all necessary pur- ^ poses may commence and maintain or defend J suits and other legal proceedings as an adminis- T^ trator; he may sell sucli perishable property as ^ the court may order to be sold, and exercise such ^ other poAvers as are conferred upon him by his ap- ;^ pointment, but in no case is he liable to an action o by any creditor on a claim against the decedent. [Amendment approved April 16. 1880; Amend- ments 1880, p. 83. In effect April 16, 1880.] Code Civ. Proc— 47. §§ 1416, 1423 EXECUTORS, ETC. 554 § 1416. When letters testamentary or of admin- istration on the estate of the decedent have been granted, the powers of the special administrator cease, and lie must forthwith deliver to the ex- ecutor or administrator all the property and ef- fects of the decedent in his hands; and the ex- ecutor or administrator may prosecute to final judgment any suit commenced by the special ad- ministrator. § 1417. The special administrator must render an account, on oath, of his proceedings in a like manner as other administrators are required to do. Account of administrator, etc. : Sec. 1622 et seq. AIITICLE VIII. WILLS FOUND AFTER LETTERS OF ADMINISTRATION GRANTED, AND MISCELLANEOUS PROVISIONS. § 1423. On proof of will, after grant of letters of adminis- tration, letters revoked. § 1424. Power of executor in such a case. § 1425. Remaining administrator or executor to continue when his_ colleagues are disqualified. § 1426. Who to act when all acting are incompetent. § 1427. Executor or administrator may resign, when. Court to appoint successor. Liabi'ity of outgoer. § 1428. All arts of executor, etc., valid until his power is re- voked. § 1429. Transcript of court minutes to be evidence. § 1423. If, after granting letters of administra- tion on the ground of intestacy, a will of the dece- dent is duly proved and allowed by the court, the letters of administration must be revoked, and the ])OAVcr of the administrator ceases, and he must render an account of his administration within such time as tlie court shall direct. Account of administration: Sec. 022 et seq. 555 EXECUTORS. ETC. §§ 1424-1426 § 1424. lu such ease, the executor or the ad- ministrator with the will annexed is entitled to de- mand, sue for, recover and collect all the rights, goods, chattels, debts and effects, of the deced- ent remaining unadministered, and may prosecute to final judgment any suit commenced by the ad- ministrator before the revocation of his letters of administration. Inventory and collection of decedent's effects: Sees. 1443-1453. § 1425. In case any one of several executors or administrators to whom letters are granted, dies, becomes lunatic, is convicted of an infamous crime, or otherwise becomes incapable of execut- ing the trust, or in case the letters testamentary or of administration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or administrator must pro- ceed to complete the execution of the will or ad- ministration. § 1426. If all such executors or administra- tors die or become incapable, or the power and authority of all of them is revolved, the court must issue letters of administration, with the will an- nexed or otherwise, to the widow or next of kin, or others, in the same order and manner as is di- rected in relation to original letters of administra- tion. The administrators so appointed must give bond in the like penalty, with like sureties and conditions, as hereinbefore required of administra- tors, and shall have the like power and authority. [Amendment, approved April 16, 1880; Amend- ments, 1880,. p. 83. In effect April 16, 1880.] Letters of administration — order and manner of granting, see. 1365 et seq.; with will annexed, see. 1356. Oath and bond: Sees. 1387-1407. Power and authority: See. 1581 et seq. §§ 1427-1429 EXECUTORS, ETC. 556 § 1427. Any executor or administrator may, at any time, by writing, filed in tlie Superior Court, resign his appointment, liaving first settled liis accounts and delivered up all the estate to the per- son whom the court shall appoint to receive the same. If, however, by reason of any delays in such settlement and delivering up of the estate, or for any other cause, the circumstances of the es- tate or the rights of those interested therein re- quire it, the court may, at any time before settle- ment of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint in his stead an admin- istrator, either special or general, in the same manner as is directed in relation to original letters of administration. The liability of the outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, re- leased, or affected by such appointment or resig- nation. [Amendment, approved April 16, 1880; Amendments 1880, p. 83. In effect April 16, 1880.] § 1428. All acts of an executor or administrator as such, before the revocation of his letters tes- tamentary or of administration, are as valid to all intents and purposes as if such executor or ad- ministrator had continued lawfully to execute the duties of his trust. § 1429. A transcript from the minutes of the court, showing the appointment of any person as executor or administrator, together with the cer- tificate of the clerk under his hand and the seal of his court, that such person has given bond and been qualified, and that letters testamentary or of administration have been issued to him and have not been revoked shall have the same effect in evidence as the letters themselves. Letters and bond recored: Sec. 1387. EXECUTORS, ETC. §§ 1430, 1431 AKTICLE IX. DISQUALIFICATION OF JUDGES AND TRANSFERS OF ADMINISTRATIONS. § 1430. When judge not to act. § 1431, Judge being disqualified, proceedings to be trans- ferred, and where. § 1432. Transfer not to change right to administer. Re- transfer, how made. § 1433. When proceedings to be returned to original court. § 1430. No will shall be admitted to probate, or letters testamentary or of administration grant- ed , before any judge who is interested as next of kin to the decedent, or as a legatee or devisee under the will, or Avhen he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner interested or disqualified from acting. [Amendment, approved April lO, 1880; Amendments 1880, 83. In effect April 16, 1880.] § 1431. When a petition is filed in the superior court, praying for admission to probate of a will, or for granting letters testamentary or of admin- istration, or when proceedings are pending in the superior court for the settlement of an estate, and tliere is no judge of said court qualified to act, an order must be made transferring the proceed- ings to the superior court of an adjoining county, and the clerk of the court ordering the transfer must transmit to the clerk of the court to which the proceedings are ordered to be trans- ferred a certified copy of the order and all papers on file in his office in the proceedings; and thereafter the court to which the proceeding is transferred shall exercise the same authority and jurisdiction over the estate, and all matters re- lating to the administration thereof, as if it had §§ 1432, 1433 EXECUTORS, ETC. 55S original jurisdiction of the estate; provided, tliere sliall not be any necessity for transferring sucli proceedings, or any of tliem, wlien a judge of some otlier county qualified to act attends at the request of the judge of the county where such proceedings are pending, to hold court, to con- duct and to try such proceedings; and such judge, when so called upon to preside, shall exercise ju- risdiction over any proceeding in the estate as is exercised in other cases under lil^e circumstan- ces. [Amendment, approved March 31, 1891; Stats. 1891, 435.] § 1432. The transfer of a proceeding from one court to another as provided for in the preceding section, shall not affect the right of any person to letters testamentary or of administration on the estate transferred, but the same persons are entitled to letters testamentary or of administra- tion on the estate, in the order hereinafter pro- vided. If, before the administration is closed of any estate so transferred as herein provided, an- other person is elected or appointed, and qualified as judge of the court wherein such proceeding was originally commenced, who is not disqualified to act in the settlement of the estate, and the causes for which the proceeding was transferred no long- er exist, any person interested in the estate may have the proceeding returned to the court from which it was originally transferred, by filing a petition setting forth these facts, and moving the court therefor. [Amendment, approved April 16, 1880; Amendments 1880, 84. In effect April 16, 1880.] § 1433. On hearing the motion, if the facts re- quired by the preceding section to be set out in the petition are satisfactorily shown, and it fur- ther appears to the court that the convenience of the parties interested would be promoted by such 559 EXECUTORS AND ADMINISTRATORS. § 1436 change, the judge must make an order transfer- ring the proceeding back to the court where it was originallj' commenced; and the clerk of the court ordering the transfer must transmit to the clerk of the court in which the proceeding was origin- ally commenced, a certified copy of the order, and all the original papers on lile in his office in the proceeding; and the court where the proceeding was originally commenced shall thereafter have jurisdiction and power to make all necessary or- ders and decrees to close up the administration or the estate. [Amendment, approved April 16, 1880; Amendments 1880, 84. In effect April 16, 1880.] ARTICLE X. REMOVALS AND SUSPENSIONS IN CERTAIN CASES. § 1436. Suspension of powers of executor. § 1437. Executor to have notice of his suspension, and to be cited to appear. § 1438. Any party interested may appear on hearing. § 1439. Notice to absconding executors and administrators. § 1440. May compel attendance. § 1436. Whenever a judge of a Superior Court has reason to believe, from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled, or misman- aged, or is about to waste or embezzle the prop- ) erty of the estate committed to his charge, or has ^ committed or is about to commit a fraud upon '^ the estate, or is incompetent to act, or has perma- ^ nently removed from the State, or has wrongfully V neglected the estate, or has long neglected to per- T> form any act as such executor or administrator. X he must, by an order entered upon the minutes of o the court, suspend the powers of such executor or administrator, until the matter is investigated. [Amendment approved April 16, 1880; Amend- ments 1880, 84. In effect April 16th, 1880.] §§ 1437-1440 EXECUTORS. ETC. 560 Misconduct of executor— as to inventory: Sec. 1450; as to exhibit and account: Sees. 1626, 1627, 1630. Suspension of executor, etc.— done at cliambers: Sec. 166. llemoval of executor: See ante, sec. 1383. § 1437. Wlien sucli suspension is made, notice thereof must be given to the executor or adminis- trator, and he must be cited to appear and show cause Avhy his letters should not be revoked. If he fail to appear in obedience to the citation, or, if appearing-, the court is satisfied that there exists cause for his removal, his letters must be revoked, and letters of administration granted anew, as the case may require. § 1438. At the hearing, any person interested in the estate may appear and file liis allegations in writing, showing that the executor or adminis- trator should be removed; to which the executor or administrator may demur or answer, as herein- before provided. The issues raised must be heard and determined hj the court. § 1439. If the executor or administrator has absconded or conceals himself, or has removed or absented himself from the State, notice may be given him of the pendency of the proceedings by publication, in such manner as the court may di- rect, and tlie court may proceed upon such notice as if the citation had been personally served. Compare: Sec. 1630. § 1440. In the proceedings authorized by the preceding sections of this article, for the removal of an executor or administrator, the court may compel his attendance by attachment, and may compel him to answer questions, on oatli, touch- 561 EFFECTS OF DECEDENTS. § 1443 iug his administration, and, upon his refusal so to do, may commit him until he obej', or may re- volve his letters, or both. Compelling obedience: Compare sees. 1627, 1628: as to contempt: See sees. 1209, 1219. CHAPTEK IV. OF THE INVENTORY AND COLLECTION OF THE EF- FECTS OF DECEDENTS. Article I. Inventory, Appraisement, and Possession of Es- tate. II, Embezzlement and Surrender of Property of Es- tate. ARTICLE I. INVENTORY, APPRAISEMENT, AND POSSESSION OF ESTATE. § 1443. Inventory to be returned, including the homestead. § 1444. Appraisement and pay of appraisers. § 1445. Oath of appraisers and inventory, how made. § 1446. Inventory to account for moneys. If all money, no appraisement necessary. § 1447. Effect of naming a debtor executor. § 1448. Discharge or bequest of debt against executor. § 1449. To make oath to inventory. § 1450. Letters may be revoked for neglect of administra- tor. § 1451. Inventory of after-discovered property. § 1452. Administrator and executor to possess real and per- sonal estate. § 1453. Executor or administrator to deliver real estate to heirs or devisees at the end of ten months, unless there are debts to be satisfied. y § 1443. Every executor or administrator must J make and return to the court, within three months s^ after his appointment, a true inventory and ap- ^ praisement of all the estate of the decedent, in- §§ 1444. 1445 EFFECTS OF DECEDENTS. 562 eluding the homestead, if any, which has come to his possession or knowledge. [Amendment ap- proved April 16, 1880; Amendments 1880, 85. In effect April 16th, 1880.] § 1444. To malie the appraisement, the court or a judge thereof must appoint three disinterested persons (any two of whom may act), who are en- titled to receive a reasonable compensation for their services, not to exceed five dollars per day, to be allowed by the court or judge. The apprais- ers must, with the inventory, file a verified ac- count of their services and disbursements. If any part of the estate is in any other county than that in which letters issued, appraisers thereof may be appointed, either by the court or judge having jiU'isdiction of the estate or by the court or judge of such other county, on request of the court or judge having jurisdiction. No clerlv or deputy, nor any person related by consanguinity or affinity to or connected by marriage or in business with the judge of the court, shall be appointed or shall be competent to act as appraiser in any estate, or matter or proceeding pending before such judge or in said court. [Amendment approved March 23, 1893; Stats, 1893, 185.] Appraisers— duty as to homestead: Sees. 1476, 1486; appointed at chambers: Sec. 166. § 1445. Before proceeding to the execution of their duty, the appraisers, before any oflieer au- thorized to administer oaths, must take and sub- scribe an oath, to be attached to the inventory, that they will truly, honestly, and impartially ap- praise the property exhibited to them, according to the best of their knowledge and ability. They must then proceed to estimate and appraise the property; each article must be set doAvn separate- ly, with the value thereof in dollars and cents, in figures, opposite to the articles, respectively; the 563 EFFECTS OP DECEDENTS. §§ 1446-1448 inventory must contain all the estaite of the dece- dent, real and personal, a statement of all debts, partnerships, and other interests, bonds, mort- gages, notes, and other securities for the payment of money belonging to the decedent, specifying the name of the debtor in each security, the date, the sum originally payable, the indorsements thereon, (if any) with their dates, and the sum which, in the judgment of the appraiser, may be collected on each debt, interest, or security; the inventory must show, so far as the same can be ascertained by the executor or the administrator, what portion of the property is community prop- erty, and what portion is the separate property of the decedent. § 1446. The inventory must also contain an ac- count of all moneys belonging to the decedent which have come to the hands of the executor or administrator; and if none, the fact must be so stated in the inventory. If the whole estate con- sists of money, there need not be an appraisement, but an inventory must be made and returned as in other cases. § 1447. The naming of a person as executor does not thereby discharge him from any just claim which the testator has against him, but the claim must be included in the inventory, and the executor is liable for tlie same, as for so much money in his hands, when the debt or demand be- comes due. § 1448. The discharge or bequest in a will, of any debt or demand of the testator against the ex- ecutor named, or any other person, is not valid against the creditors of the decedent, but is a spe- cific bequest of the debt or demand. It must be included in the inventory, and if necessary, ap- plied in the payment of the debts. If not neces ?§ 1-149-1452 EFFECTS OF DECEDENTS. 564 sary for that purpose, it must be paid in the same manner and proportion as other specific legacies. § 1449. The inventory must be signed by the appraisers, and the executor or administrator must talve and subscribe an oath before an officer au- thorized to administer oaths, that the inventory contains a true statement of all the estate of the decedent which lias come to his knowledge and possession, and particularly of all money belong- ing to the decedent, and of all just claims of the decedent against the affiant. The oath must be indorsed upon or annexed to the inventory. § 1450. If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or within such further time, not ex- ceeding two months, which the court or judge shall for reasonable cause allow, the court may. upon notice, revolve the letters testamentary or of administration, and the executor or administrator is liable on his bond for any injury to the estate, or any person interested therein, arising from such failure. § 1451. Whenever property not mentioned in an inventory that is made and filed, comes to the possession or knoAvledge of an executor or admin- istrator, he must cause the same to be appraised in the manner prescribed in this article, and an inventory thereof to be returned within two months after the discovery; and the making of such inventory may be enforced, after notice, by attachment or removal from office. Enforced by attachment, etc.: Compare sec. 1440. § 1453, The executor or administrator is en- titled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate until the estate is 565 EFFECTS OF DECEDENTS. § 1453 settled, or until delivered over by order of the court to the heirs or devisees; and must lieep in good tenantable repair all houses, buildings, and fixtures thereon Avhich are under his control. The heirs or devisees may themselves, or jointly with the executor oi administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, against any one except the executor or administrator; but this section shall not be so construed as requiring them so to do. [Amendment approved April 16, 1880; Amendments 1880, 85. In effect April 16th, 1880.] Authority of executors: Sec. 1355. Possession of estate: See sec' 1581; when that of heirs, etc.: Sec. 1581; as to partnership prop- erty: See sec. 1585. Until delivered to heirs: See sec. 1453. Action by executor, etc.: Sees. 1458, 1581, 1582 et seq. § 1453. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to be re- ceived by the executor or administrator, where- with to pay the debts of the decedent, or that it will probably be necessary to sell the real estate for the payment of such debts, the court, at the end of the time limited for the presentation of claims against the estate, must direct the executor or administrator to deliver possession of all the real estate to the heirs-at-law or devisees. [Amendment approved April 16, 1880; Amend- ments 1880, 85. In effect April 16th. 1880.] Code Civ. Proc- 4S. 1458, 1459 EFFECTS OF DECEDENTS 566 ARTICLE II. EMBEZZLEMENT AND SURRENDER OF PROPERTY OF THE ESTATE. I 1458. Embezzling estate before grant of letters testamen- tary. § 1459. Citation to persons suspected to have embezzled es- tate, etc. § 1460. Refusal to obey citation, penalty for, and for em- bezzlement. May be compelled to disclose by im- prisonment. Liable for double damages. § 1461. Persons intrusted with the estate of decedent may be cited to account. § 1458, If any person, before the granting of letters testamentary or of administration, embez- zles or alienates any of the moneys, goods, chat- tels, or effects of a decedent, he is chargeable therewith and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of the estate. Action by executors, etc.— generally: Sees. 1452, 14G0, 1581 et seq. § 1459. If any executor, administrator, or other person interested in the estate of a decedent, com- plains to the Superior Court, or a judge thereof, on oath, that any person is suspected to have con- cealed, embezzled, smuggled, conveyed away, or disposed of any moneys, goods, or chattels of the decedent, or has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which contain evidences of or tend to disclose the right, title, interest, or claim of the decedent to any real or personal estate, or any claim or demand, or any lost will, the said court or judge may cite such person to appear before such court, and may examine him on oath upon 567 EFFECTS OF DECEDENTS. § 1460 the matter of such complaint. If such person i& not in the county where the decedent dies, or where letters have been granted, he may be cited and examined either before the Superior Court of the county where he is found, or before the Su- perior Court of the countj' where the decedent dies, or Avhere letters have been granted. But if, in the latter case, he appears and is found innocent his necessary expenses must be allowed him out of the estate. [Amendment approved April 16, 1880; Amendments 1880, 8«. In effect April 16th. ISSO.] § 1460. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him, touching the matters of the complaint, the court may, by warrant for that purpose, commit him to the coun- ty jail, there to remain in close custody until he submits to the order of the court, or is discharged according to law. If, upon such examination, it appears that he has concealed, embezzled, smug- gled, conveyed away, or disposed of any moneys, goods, or chattels of the decedent, or that he has in his possession or l^nowledge any deeds, convey- ances, bonds, contracts, or other writings contain- ing evidences of or tending to disclose the right/ title, interest, or claim of the decedent to any real or personal estate, claim, or demand, or any lost will of the decedent, the court may make an order requiring such person to disclose his knowledge thereof to the executor or administrator, and may commit him to the county jail, there to remain un- til the order is complied with, or he is discharged according to law; and all such interrogatories and answers must be in writing, signed by the party examined, and filed in the court. The order for such disclosure made upon such examination shall be prima facie evidence of the right of the execu- tor or administrator to such property in any action § 1431 EFFECTS OF DECEDENTS. 568 brought for the recovery thereof; and any judg- ment recovered therein must be for double the value of the property as assessed by the court or jury, or for return of the property and damages in addition thereto, equal to the value of such prop- erty. In addition to the examination of the party, witnesses may be produced and examined on either side. [Amendment approved April 16, 1880; Amendments 1880, 86. In effect April 16th, 1880.] Contempt: Sees. 1209, 1219. § 1461. The Superior Court, or a judge thereof, upon the complaint, on oath, of any executor or administrator, may cite any person who has been intrusted with any part of the estate of the dece- dent, to appear before such court, and require him to render a full account, on oath, of any moneys, goods, chattels, bonds, accounts, or other property or papers belonging to the estate, which have come to his possession in trust for the executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear and render such account, the court may proceed against him as provided in the preceding section. [Amendment approved April 16, 1880; Amend- ments 1880, 86. In effect April 16th, 1880.] 569 PROVISION FOR FAMILY 1464, 146& CHAPTER V. OF THE PROVISION FOR THE SUPPORT OF THE FAM- ILY, AND OF THE HOMESTEAD. Article I. Of the Provision for the Support of the Family. II. Of the Homestead. ARTICLE I. OF THE PROVISION FOR THE FAMILY. SUPPORT OF THE § 1464. Widow and minor children may remain in dece- dent's house, etc. § 1465. All property exempt from execution to be set apart for use of family. § 1466. May make extra allowance. § 1467. Paj-^ment of allowance. § 1468. Property set apart, how apportioned between widow and children. § 1469. Estate less than fifteen hundred dollars to go to wife and child; those less than three thousand to be summarily administered. § 1470. When all property to go to children. § 1464. When a person dies, leaving- a widow or minor cliildren, the widow or children, until let- ters are granted and the inventory is returned, are entitled to remain in possession of the homestead, of all the wearing apparel of the family, and of ■ all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the Superior Court, or a judge thereof. [Amendment approved April 16, 1880; Amendments 1880, 87. In effect April 16th, 1880.] Provisions for support of familv: sees. 1466, 1467. 1467. 1465. Upon the return of the inventory, or at any subsequent time during the administration, I any § 1466 PROVISION FOR FAMILY 570 the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the prop- erty exempt from execution, including the home- stead selected, designated, and recorded; provided such homestead was selected from the common property, or from the separate property, of the per- sons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, in the manner provided in article two of this chap- ter, out of the common property, or if there be no common property, then out of the real estate be- longing to the decedent. [Amendment approved April 16, 1880; Amendments 1880, 87. In effect April 16th, 1880.] Attorney, court may appoint to represent party: Sec. 1718. Appeal from order setting apart homestead, or refusing so to do: See sec. 1716, post. § 1466. If the amount set apart be insufficient for the support of the widow and children, or either, the court or a judge thereof must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the fam- ily, according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent estate, must not be longer than one j^ear after granting letters testamentary or of administration. [Amendment approved Ap- 571 PROVISION FOR FAMILY. §§ 1467-1569 ril 16, 1880; Amendments 1880, 87. In effect April IGth, 1880.] § 1467. Any allowance made by the court or judge, in accordance with the provisions of this article, must be paid in preference to all other charges, except funeral charges and expenses of administration; and any such allowance, when- ever made, may, in the discretion of the court or judge, take effect from the death of the decedent. § 1468. When property is set apart to the use of the family, in accordance with the provisions of this chapter, if the decedent left a widow or sur- viving husband, and no minor child, such prop- erty is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one-half of such property shall be- long to the widow or surviving husband, and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow or surviving husband, the whole belongs to the minor child or children. If the property set apart be a homestead, selected from the separate B iT^n ^^^"^ '^'^urt can only set it ° 2 S. c3 5 ignated in the w J5 §, >g:?S'irs of the de- ^g»^- sSg? iiendment ap- 'oi^l-fg^gS 1881,8. Ap- 2. ^ z:. t/i O :^ 'p;? S ^f § ^OfflT: Sec. 1470. B J 2, ^ » § g I he inventory of '^' ^ f6 ^ >< J5 JO fij it shall appear § S H. ^^^® estate does (^ > .red dollars, and ' g^ldren of the de- g'r; 3of, shall, by or- S p* « to appear on a < w w le whole of said ^ ' ::^ § 1466 PROVISION FOR FAMILY 570 the court may, on its own motion, or on petition tlierefor, set apart for the use of the surviving husband or wife, or, in case of his or lier death, to the minor children of the decedent, all the prop- erty exempt from execution, including the home- stead selected, designated, and recorded; provided such homestead was selected from the common property, or from the separate property, of the per- sons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, in the manner provided in article two of this chap- ter, out of the common property, or if there be no common property, then out of the real estate be- longing to the decedent. [Amendment approved April 16, 1880; Amendments 1880, 87. In effect April 16th, 1880.] _______—— Attorney, com ^ ^ .2 & 2 '2 Sec. 1718. Appeal from « refusing so to d( § 1466. If the for the support 1 either, the courtj such reasonable ^. shall be necessary^ ily, according to ^^ progress of the sej case of an insolp ^2 than one year aft^ % or of administratis § i w 3 .2 45 Q ■^ 'C 'O .^ oJ Pi after e the the ji went him, 2 S t^-o s 1 > 'A S lony ry, a ng t: rtroo door ^ ^ .2,'S g o 1 glllll 1 v:t P5 « S ^ ^ 1 < i 2 tt 1 -^ II 2 1 )J p. ^ ti "^ c3 C3 Pi o .-. 2 571 PROVISION FOR FAMILY. §§ 1487-1569 ril 16, 1880; Amendments 1880, 87. In effect April IGth, 1880.] § 1467. Any allowance made by the court or judge, in accordance with the provisions of this article, must be paid in preference to all other charges, except funeral charges and expenses of administration; and any such allowance, when- ever made, may, in the discretion of the court or judge, talvc effect from the death of the decedent. § 1468. When property is set apart to the use of the family, in accordance with the provisions of this chapter, if the decedent left a widow or sur- viving husband, and no minor child, such prop- erty is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one-half of such property shall be- long to the widow or surviving husband, and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow or surviving husband, the whole belongs to the minor child or children. If the property set apart be a homestead, selected from the separate property of the deceased, the court can only set it apart for a limited period, to be designated in the order, and the title vests in the heirs of the de- ceased, subject to such order. [Amendment ap- proved Feb. 19, 1881; Amendments 1881, 8. Ap- proved February 19th, 1881.] Where widow has a maintenance: Sec. 1470. § 1469. If, upon the return of the inventory of the estate of a deceased person, it shall appear therefrom that the value of the whole estate does not exceed the sum of fifteen hundred dollars, and if there be a widow or minor children of the de- ceased, the court, or a judge thereof, shall, by or- der, require all persons interested to appear on a day fixed, to show cause why the whole of said § 1470 PROVISION FOR FAMILY. 572 estate should not be assigned for the use and sup- port of the family of the deceased. Notice thereof shall be given and proceedings had in the same manner as provided in sections one thousand six hundred and thirty-three, one thousand six hun- dred and thirty-five, and one thousand six hundred and thirty-eight of this Code. If, upon the hear- ing, the court finds that the value of the estate does not exceed the sum of fifteen hundred dollars, it shall, by decree for that purpose, assign to the widow of the deceased, if there be a widow, if no widow, then to the minor children of the deceased, if there be minor child- ren, the whole of the estate, subject to whatever mortgages, liens, or incumbrances there may be upon said estate at the time of the death of the deceased, after the payment of the expenses of the last illness of the deceased, funeral charges, and expenses of administration, and the title thereof shall rest absolutely in such widow or minor children, subject to whatever mortgages, liens, or incumbrances there may be upon said es- tate at the time of the death of the deceased, and there must be no further proceedings in the ad- ministration, unless further estate be discovered. [Approved February 16, 1897; Stats. 1897, c. 10. In effect immediately.] Act authorizing next of Ivin of decedent to col- lect deposit in bank of less than three hundred dollars. See post. Appendix, 814. § 1470. If the widow has a maintenance deriv- ed from her own property equal to the portion set apart to her by the preceding sections of this arti- cle, the whole property so set apart, other than the homestead, must go to the minor children. [Amendment approved April 16, 1880; Amend- ments 1880, 88. In effect April 16th, 1880.] 573 PROVISION FOR FAMILY. § 1474 AKTICLE II. OF THE HOMESTEAD. § 1474. Rights of survivor to homestead. § 1475. Selected and recorded homestead set off to person entitled. Subsisting liens to be paid by solvent estate. § 1476. Appraisers to carve out of the original, exceeding five thousand dollars in value, a homestead, and report the same. § 1477. Report of the appraisers. Majority and minority, which may be confirmed. § 1478. Day to be set for confirming or rejecting the re- port of the appraisers. Appeal. § 1479. If report rejected, other appraisers appointed. If again rejected, partition suit to be prought. § 1480. Instead of dividing the homestead, who may take a deed thereof at appraised value. § 1481. If no homestead is selected and recorded prior to death of decedent, one may be petitioned for. § 1482. Court to direct partition suit in the District Court, when. Proceedings thereon. . § 1483. If property is common or separate, court to cause appraisement and admeasurement to be made. § 1484. New appraisement, when ordered. Instead of deed- ing property at appraised value, public sale to be ordered, when. § 1485. Costs, to whom chargeable. Persons succeeding to rights of homestead owners have all their powers and rights. § 1486. Certified copies of certain orders to be recorded. § 1474. If the homestead selected by the hus- band and wife, or either of them, dnring their coverture, and recorded while both were living", was selected from the community property, or from the separate property of the person selecting or joining in the selection of the same, it vests, on the deatli of the husband or wife, absolutely in the survivor. If the homestead was selected from the separate property of either the husband or the wife, witliout his or her consent, it vests, on the death of the person from whose property it was §§ 1475. 1476 PROVISION FOR FAMILY. 574 selected, in his or lier lieirs, subject to the power of the Superior Court to assign it for a limited period to the family of the decedent. In either case it is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except as provided in the Civil Code. [Amendment approved April 16, 1880; Amend- ments 1880, 88. In effect April 16th, 1880.] Homestead — generally, and setting apart: Sec. 1465. § 1475. If the homestead selected and recorded prior to the death of the decedent be returned in the inventory appraised at not exceeding five thousand dollars in value, or was previously ap- praised as provided in the Civil Code, and such appraised value did not exceed that sum, the Su- perior Court must, by order, set it off to the per- sons in whom title is vested by the preceding sec- tion. If there be subsisting liens or incumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate. If the funds of the estate be adequate to pay all claims against the estate, the claims so secured must be paid out of such funds. If the funds of the estate be not sufficient for that purpose, the claims so secured shall be paid pro- portionately with other claims alloAA-ed, and the liens or incumbrances on the homestead shall only be enforced against the homestead for any defici- ency remaining after such payment. [Amend- nient approved April 16, 1880; Amendments 1880, 88. In effect April 10th, 1880.] § 1476. If the homestead, as selected and re- corded, be returned in the inventory appraised at more than five thousand dollars, the appraisers must, before they malce their return, ascertain 575 PROVISION FOR FAMILY. §§ 1477, 14"?^ and appraise the value of the homestead at the time the same was selected, ami if such value ex- ceeded five thousand dollars, or if the homestead Xvas appraised as provided in the Civil Code, and such appraised value exceeded that sum, the ap- praisers must determine whether the premises can be divided without material injury, and if they find that they can be thus divided, they must ad- measure and set apart to tlie parties entitled thereto, such portion of the premises, including the dwelling-house, as will amount in value to the sum of five thousand dollars, and make report thereof, giving the metes, bounds, and full description of the portion set apart as a homestead. If the ap- praisers find that the premises exceeded in value, at the time of their selection, the sum of five thou- sand dollars, and that they cannot be divided with- out material injury, they must report such finding, and thereafter the court may malie an order for the sale of the premises and the distribution of the proceeds to the parties entitled thereto. [Amend- ment approved March 24, 1874; Amendments 187.3- 4, 303. In effect July 1st, 1874.] Appraisement— generally: Sec. 1444. § 1477. Any two of the appraisers concurring may discharge the duties imposed upon the three, \ and malxe the report. A dissenting report may be ^ made by the third appraiser. The report must ^ state fully the acts of the appraisers. Both reports J may be heard and considered by the court in de- i termining a confirmation or rejection of the ma- ^ jority report, but the minority report must in no case be confirmed. § 1478. When the report of the appraisers is ^ liled, the court must set a day for hearing any ob- ^^ jections thereto, from any one interested in the ^ -estate. Notice of the hearing must be given for {^ such time, and in such manner as the court may §§ 1479-1486 PROVISION FOR FAMILY. 576 direct. If the court be satisfied tliat tlie report is correct, it must be confirmed, otlierwise rejected. In case the report is rejected, tlie court may ap- point new appraisers to examine and report upon the homestead, and similar proceedings may be had for the confirmation or rejection of their re- port as upon the first report. [Amendment ap- proved March 24, 1874; Amendments 1873-4, 363. In effect July 1st, 1874.] §§ 1479, 1480, 1481, 1482, 1483, 1484 are re- pealed. [In effect July 1st, 1874.] § 1485. The costs of all proceedings in the Su- perior Court provided for in this chapter, must be paid by the estate as expenses of administration. Persons succeeding by purchase or otherwise to the interests, rights, and title of successors to homesteads, or to the right to have homesteads set apart to them, as in this chapter provided, have all the rights and benefit conferred by the law on the persons whose interests and rights they acquire. [Amendment approved April 16, 1880; Amend- ments 1880, 89. In effect April 16th, 1880.] § 1486. A certified copy of every final order made in pursuance of this article, by which a re- pport is confirmed, property assigned, or sale con- firmed, must be recorded in the otfice of the re- corder of the county where the homestead property is situated. Certified copy— recording: See sec. 1719. CLAIMS AGAINST ESTATE. § 1490 Chapter vi. OP CLAIMS AGAINST THE ESTATE. § §490. Notice to creditors. Additional notice. § 1491. Time expressed in the notice. § 1492. Copy, and proof of notice to be filed and order made. § 1493. Time within which claims against an estate must be presented. § 1494. Claims to be sworn to, and when allowed, to bear same interest as judgments. § 1495. Probate judge may present claim, and action there- on. § 1496. Allowance and rejection of claims. § 1497. Approved claims or copies to be filed. Claims se- cured by liens may be described. Lost claims. § 1498. Rejected claims to be sued for within three months. § 1499. Claims barred by Statute of Limitations. When and who probate judge may examine. § 1500. Claims must be presented before suit. § 1501. Time of limitation. § 1502. Claims in action pending at time of decease. § 1503. Allowance of claim in part. § 1504. Effect of judgment against executor. § 1505. Execution not to issue after death. If one is levied the property may be sold. § 1506. What judgment is not a lien on real property of estate. § 1507. May refer doubtful claims. Effect of referee's al- lowance of rejection. § 1508. Trial by referee, how confirmed and its effect. § 1509. Liability of executor, etc., for costs. § 1510. Claims of executor, etc., against estate. § 1511. Executor neglecting to give notice to creditors, to be removed. § 1512. Executor to return statement of claims. ^ 1513, Court may order payment of interest to cease, when § 1490. Every executor or administrator mnst. immediately after his appointment, cause to be ^ published in some newspaper of the county, if I there be one, if not, then in such newspaper as ' may be desig:nated by the court, a notice to the creditors of the decedent, requiring- all persons liaving claims against him to exhibit them, with Code Civ. Proc— 49. §S 1491-1493 CLAIMS AGAINST ESTATE. 578 the necessary vouchers, to the executor or admin- istrator, at the place of his residence or business, to be specified in the notice; such notice must be published as often as the judge or court shall di- rect, but not less than once a week for four weeks; the court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time al- lowed for such presentation. Publication of notice — how often: Sec. 1705. Two months' neglect— to give notice, causes rev- ocation of letters: Sec. 1511. 1491. The time expressed in the notice must be ten months after its first publication when the es- tate exceeds in value the sum of ten thousand dol- lars, and four months when it does not. § 1492. After the notice is given, as required uilL>y the preceding section, a copy thereof, with the affidavit of due publication, or of publication and posting, must be filed, and upon such affidavit or other testimony to the satisfaction of the court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and re- corded, must be made by the court. Affidavit of publication— of notice: Sees. 2010, 2011. § 1493. All claims arising upon contracts, Avliether the same be due, not duo, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant liad no notice as provided in this 579 CLAIMS AGAINST ESTATE. § 1494 chapter, by reason of being out of the State, it may be presented at any time before a decree of distribution is entered. [Amendment approved April IG, 1880; Amendments 1880, 89. In effect April 16th, 1880.] Claim— action, none unless claim presented: Sec. 1500; after rejection: Sec. 1498; pending at death, claim must be presented: Sec. 1502; affidavit: Sec. 1494; allowance or rejection of: Sees. 1496-1498, 1503; contingent: Sec. 1648; executor, action by: Sec. 1510; against judgment on: Sees. 1504, 1509, interest on: Sees. 1494, 1513; Judge of Superior Court: Sec. 1495; judgment, against decedent, Sec. 1505; action barred by statute: Sees. 1499, 1501; examination by judge: Sec. 1499; on mort- gage, or lien: Sec. 1500; Reference of: Sec. 1507; statement of claims: Sec. 1512. Partnership: Sec. 1585. Contingent claims: Sec. 1648. § 1494. Every claim which is due, when pre- sented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when presented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administra- tor may also require satisfactory vouchers or proofs to be produced in support of the claim. If the estate be insolvent no greater rate of inter- est shall be allowed upon any claim after the first publication of notice to creditors than is allowed on judgments obtained in the Superior Court. §§ 1495, 1496 CLAIMS AGAINST ESTATE. 58a [AmeDdment approved April 16. 1880; Amend- ments 1880, 89. In effect April 16tb, 1880.] Claim on mortgage or lien: See sec. 1500. Claim paid without affidavit and allowance when allowed executor. See post, Appendix, p. 815. § 1495. Any judge of a Superior Court may present a claim against the estate of a decedent for allowance to the executor or administrator there- of, and if the executor or administrator allows the claim, he must in writing designate some other judge of the Superior Court of the same or an ad- joining county, who, upon the presentation of such claim to him, is vested with power to allow or re- ject it, and the judge presenting such claim, in case of its rejection by the executor or administra- tor, or by such judge as shall have acted upon it, has the same right to sue in a proper court for its recovery as other persons have when their claims against an estate are rejected. [Amendment ap- proved April 16, 1880; Amendments 1880, 89. In effect April 16th, 1880.] § 1496. When a claim, accompanied by the af- fidavit required in this chapter, is presented to the executor or administrator, he must indorse there- on his allowance or rejection, with the day and date thereof. If he allow the claim, it must be presented to a judge of the Superior Court for his approval, who must in the same manner indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claim- ant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made by a notary, the certificate of such notary, under seal, shall be prima facie evidence of such presentation 581 CLAIMS AGAINST ESTATE. § 1197 and the date thereof. If the claim be presented to the executor or administrator before the expira- tion of the time limited for the presentation of claims, the same is presented in time, tliough acted upon by the executor or administrator, and by the judge, after the expiration of such time. If the claim be payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or currency. [Amendment approv- ed April IG, 1880; Amendments 1880, 90. In effect April 10th, 1880.] Judge may approve claims in chambers: Sec. 167. § 1497. Every claim allowed by the executor or administrator, and approved by a judge of the Superior Court, or a copy thereof, as hereinafter provided, must, within thirty days thereafter, be filed in the court, and be ranked among the ac- knowledged debts of the estate, to be paid in due course of administration. If the claim be founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhib- ited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or par- ticular description of such instrument, and stating its loss or destruction. If the claim, or any part thereof, be secured by a mortgage, or other lien which has been recorded in the office of the re- corder of the county in which the land affected by it lies, it shall be sufficient to describe the mort- gage or lien, and refer to the date, volume, and page of its record. If, in any case, the claim- ant has left any original voucher in the hands of the executor or administrator, or suffered the same to be filed in court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description Jj 1498-1500 CLAIMS AGAINST ESTATE. 582 of every claim filed must be entered by the clerk iu the register, showing the name of the claimant, the amount and character of the claim, rate of in- terest, and date of allowance. [Amendment ap- proved April IG, 1880; Amendment 1880, 90. In effect April 16th, 1880.] Claim secured by mortgage, etc.: See sec. 1500. § 1498. When a claim is rejected either by the executor or administrator, or a judge of the Su- perior Court, the holder must bring suit in the proper court against the executor or administrator within three months after the date of its rejection, if it be then due, or within two mouths after it ])ecomes due, otherwise the claim shall be forever barred. [Amendment approved April 16, 1880; Amendments 1880, 91. In effect April 16, 1880.] Time for bringing suit: Sec. 1501. § 1499. No claim must be allowed by the exec- utor or administrator, or bj' a judge of the Su- perior Court, which is barred by the Statute of Limitations. When a claim is presented to a judge for his allowance, he may, in his discretion, ex- amine the claimant and others on oath, and hear any legal evidence touching the validity of the claim. [Amendment approved April 16, 1880: -Vmendments 1880, 91. In effect April 16th, 1880.] Statute of Limitations: Sees. 335-363; object of: Sec. 353; vacancy in administration does not af- fect, sec. 1501. S 1500. No holder of any claim against an es- tate shall maintain any action thereon, unless the claim is first presented to the executor or admin- istrator, except in the following case; an action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all the recourse against any otlier property of the estate is ex- 583 CLAIMS AGAINST ESTATE. §§ 1501-1501 pressly waived in the complaint; but no coun- sel fees shall be recovered in such action unless such claim be so presented. [Amendment approv- ed March 15, 187(5: Amendments 1875-6, 103. In effect March 15, 1876.] Secured claims against estate: See supra, sec. 1493. With respect to incumbrances upon the homestead: See sec. 1475, ante. • C. \ § 1501. The time during which there shall be y' a vacancy in the administration must not be in- v^ eluded in any limitations herein prescribed.,, § 1502. If an action is pending against the de- cedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allowance or rejection, au- thenticated as required in other cases; and no re- covery shall be had in the action unless proof l>e made of the presentations required. § 1503. Whenever any claim is presented to an executor or administrator, or to a judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is willing to allow If the creditor refuse to accept the amount al- lowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed. [Amendment approved April 16, 1880; Amend- ments 1880, 91. In effect April 16th, 1880.] § 1504. A judgment rendered against an exec- utor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administra- tor and the judge; and the judgment must be that the executor or administrator pay, in due course of §§ 1505-1507 CLAIMS AGAINST ESTATE. 584 administration, the amount ascertained to be due, A certified transcript of the original docl^et of the judgment must be filed among the papers of the estate in court. No excution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. [Amendment approved April 10, 1880; Amendments 1880, 91. In effect April 16th, 1880.] § 1505. When any judgment has been rendered for or against the testator, intestate in his life- time, no execution shall issue thereon after his death, except as provided in section six hundred and eighty-six. A judgment against the decedent for the recovery of money must be presented to the executor or administrator lil^e any other claim: If execution is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer mailing the sale must account to the executor or administrator for any surplus in his hands, A judgment creditor having a judgment Avhich was rendered against the testator or intestate in his lifetime, may redeem any real estate of the dece- dent from any sale under foreclosure or execution, in lilie manner and with lil^e effect as if the judg- ment debtor were still living. [Amendment ap- proved March 28, 1874; Amendments 1873-4, 413. In effect March 28th, 1874.] § 1506. A judgment rendered against a dece- dent, dying after verdict or decision on an issue of fact, but before judgment is rendered thereon, is not a lien on the real property of the decedent, but is payable in due course of administration. § 1507. If the executor or administrator doubts the correctness of any claim presented to him, lie may enter into an agreement, in writing, with 585 CLAIMS AGAINST ESTATE. §§ 1508, 1509 the claimant, to refer the matter in controversy to some disinterested person, to be approved by the superior court, or a judge thereof. Upon filing the agreement and approval of such court or judge, in the office of the clerk of the court for the county in which the letters testamentary or of administration were granted, the clerk must en- ter a minute of tlie order referring the matter in controversy to the person so selected; or, if the parties consent, a reference may be had in the court; and the report of the referee, if confirmed, establishes or rejects the claim the same as if it had been allowed or rejected by the executor or administrator and judge. [Amendment approved April 16, 1880; Amendments 1880, p. 91. In effect July 16, 1880.] § 1508. The referee must hear and determine the matter, and make his report thereon to the court in which his appointment is entered. The same proceedings shall be had in all respects, and the referee shall have the same powers, be entitled to the same compensation, and subject to the same control, as in other cases of reference. The court may remove the referee, appoint an- other in his place, set aside or confirm his re- port, and adjudge costs, as in actions against ex- ecutors or administrators, and the judgment of the court thereon shall be as valid, and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process. Reference: Sees. 638-645. § 1509. When a judgment is recovered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or pro- ceeding in which the costs were taxed was prose- cuted or defended without just cause. §§ 1510-1512 CLAIMS AGAINST ESTATE. 586 § 1510. If the executor or administrator is a creditor of tlie decedent, his claim duly authenti- cated by affidavit must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge is sufficient evidence of its correctness, and must be paid as other claims in due course of administration. If, how- ever, the judge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action. If the claimant recover no judgment, he must pay all costs, in- cluding defendant's reasonable attorney's fees, to be fixed by the court. [Amendment approved April 16, 1880; Amendments 1880, p. 92. In effect April 16, 1880.] Claim: Sec. 1493. § 1511. If an executor or administrator neg- lects, for two months after his appointment, to give notice to creditors, as prescribed by this chapter, the court must revolve his letters, and ap- point some other person in his stead, equally or the next in order entitled to the appointment. § 1512. At the same time at which he is re- quired to return his inventory, the executor or ad- ministrator must also return a statement of all clainas against the estate which have been pre- sented to him, if so required by the court, or a judge thereof, and from time to time thereafter he must present a statement of claims subse- quently presented to him, if so required by the court, or a judge thereof. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due, or will become due, and whether it was allowed or rejected by him. [Amendment approved April 16, 1880; Amendments 1880, p. 92. In effect April 16, 1880.] ".ST SALES AND CONVEYANCES. §§ 1513, If. IB § 1513. If there be any debt of the decedent bearing interest, whether presented or not, tht-^ executor or administrator may, by order of the coui*t, pay the amount then accumulated and un- paid, or any part thereof, at any time when there are sufficient funds properly applicable thereto, whether said claim be then due or not; and inter- est shall thereupon cease to accrue upon the amount so paid. This section does not apply io existing debts, unless the creditor consent to ac cept the amount. [New section approved Marcli 24, 1874; Amendments 1873-4, p. c5G6. In effect July 1, 1874.] Payment of debts of estate, generally: Sec. lG4.'i et seq. CHAPTER VII. OB" SALES AND CONVEYANCES OF PROPERTY OF DE- CEDENTS. Article I. Sales in General. II. Sales of Personal Property. III. Summary Sales of Mines and Mining Interests. IV. Sales of Real Estate, Interests therein, and Con- firmation thereof. ARTICLE I. SALES IN GENERAL. § 1516. Personal estate first chargeable. Real estate . when sold. § 1517. No sales valid except by order of Superior Court. § 1518. Applications for orders of sale. S 1519. But one petition, order, and sale must be had when it is possible to do so. § 1516. All the property of a decedent shall be ; § 1522. At any time after receiving letters, the ^ executor, administrator, or special administrator 5 may apply to the court or judge and obtain an or- ^ Code Civ. Proc— 50. §§ 1523, 1524 SALES AND CONVEYANCES. 590 der to sell perishable and other personal prop- erty likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal property as maj^ be necessary to pay the allowance made to the family of the dece- dent. The order for the sale may be made with- out notice; but the executor, administrator, or special administrator is responsible for the prop- erty, unless, after malving a sworn return and on a proper showing, the court shall approve the sale. Petition: Sec. 1518. Order for the sale: Sec. 1525. § 1523. If clnims against the estate have been allowed, and a sale of property is necessary for their payment, or for the expenses of administra- tion, or for the payment of legacies, the executor or administrator may apply for an order tt> sell so much of the personal property as may be ne- cc^ssary therefor. Upon filing liis petition, notice of at least five days must be given of the hearing of the application, either by posting notices or by advertising. He may also malve a similar appli- cation from time to time, so long as any person- al property remains in his hands, and sale there- of is necessary. If it appear for the best interests of the estate, he may, at any time after filing tlio inventory, in like mnnner, and after giving like notice, apply for and obtain an order to sell the whole of the personal property belonging to the estate, whether necessary to pay debts or not. [Amendment approved April 16, 1880; Amendments 1880, p. 93. In effect April 16, 1880.] Notice by advertising: See sec. 1705. § 1524. Partnership interest or interests be- htnging to any estate l)y virtue of any partner- 591 SALES AND CONVEYANCES. §§ 1525, 1526 ship formerly existing, interests in personal prop- erty pledged, and cbosos in action, may be sold in the same manner as other personal property, when it appears to be for the best interest of the estate. Before confirming the sale of any part- nership interest, whether made to the surviving partner or to any other person, the court or judge must carefully inquire into the condition of the partnership affairs, and must examine the surviv- ing partner, if in the county and able to be pres- ent in court. Partnership interest: Sec. 1585. § 1525. If it appears that a sale is necessary for the payment of debts or the family allowance, or for the best interest of the estate and the per- sons interested in the property to be sold, wheth- er it is or is not necessary to pay the debts or family allowance, the court or judge must order it to be made. In malting orders and sales for the payment of debts or family allowance, such ar- ticles as are not necessary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold, and tlie court or judge must so direct. [Amendment approced March 24, 1874: Amendments 1873-4, p 368. In effect July 1, 1874.] § 1526. The sale of personal propertj^ must be made at public auction for such money or curren- cy as the court may direct, and after public notice given for at least ten days by notices posted in three public places in the county, or by publica- tion in a newspaper, or both, containing the time and place of the sale, and a brief description of the property to be sold, unless for good reason shown the court, or a judge thereof, orders a pri- vate sale or a shorter notice. Public sales of such property must be made at the court-house door, or at the residence of the decedent, or at some §§ 1529, 1530 SALES AND CONVEYANCES. 592 other public place; but no sale shall be made of any personal property which is not present at the time of sale, unless the court otherwise order. [Amendment approved April 16, 1880; Amend- ments 1880, p. 93. In effect April 10, 1880.] AETICLE III. SUMMARY SALES OP MINES AND MINING INTERESTS. § 1529. Mines may be sold, how. § 1530. Petition for sale, who may file and what to con- tain. § 1531. Order to show cause, how made and on what no- tice. § 1532. Order of sale, when and how made. § 1533. Further proceedings to conform to articles two and four. § 1529. When it appears from the inventory of the estate of any decedent that his estate con- sists in whole or in part of mines, or interests in mines, such mines or interests may be sold under the order of the court havin.u' jurisdiction of the estate, as hereinafter provided. [Amendment ap- proved April 16, 1880; Amendments 1880. p. 93. In effect April 16, 1880.] § 1530. The executor or administrator, or any heir at law, or creditor of the estate, or any part- ner or member of any minin.a- company, in which interests or shares are held or owned by the es- tate, may file in the court a petition, in writing, setting- forth the general facts of the estate be- ing then in due course of administration, and par- ticularly describing the mine, interest, or shares Avliicli it is desired to sell, and particularly the condition and situation of the mines or mining in- terests, or of the mining company in Avhich such interests or shares are lield, and the grounds upon which the sale is aslced to be made. [Amendment 593 SALES AND CONVEYANCES. §§ 1531-1533 approved April 16, 1880; Amendmeiits 1880, p. 9.">. In effect April 16, 1880. J Petition for sale, generally: Sec. 1518. § 1531. Upon the presentation of such peti- tion, the court, or a judge thereof, must malce an order directing all persons interested to appear before such court, at a time and place specified, not less than four or more tlian ten weeks from the time of making such order, to show cause why an order should not be granted to the exec- utr or administrator to sell such mine, mining in- terests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as such court or judge shall specify. If all persons interested in the es- tate signify in writing their assent to such sale, the notice may be dispensed with. [Amendment approved Api'il 16, 1880; Amendments 1880, p. 93. In effect April 16, 1880.] Publication of notice: Sec. 1705. § 1532. If, upon hearing the petition, it ap- pears to the satisfaction of the court that it is to the interest of the estate that such mining prop- erty or interests of the estate should be sold, or that an immediate sale is necessary in order to se- cure the just rights or interests of the mining part- ners, or tenants in common, such court must make an order authorizing the executor or administra- tor to sell such mining interests, mines, or shares, as hereinafter provided. [Amendments approved April 16, 1880; Amendments 1880. p. 94. In effect April 16, 1880.] § 1533. After the order of sale is made, all SALES AND CONVEYANCES. 591 further proceedings for the sale of such mining property, and for the notice, report, and confirm- ation tliereof. must be in conformity with the provisions of article four of this cliapter. AllTlCLE IV. THE SALE OF REAL ESTATE, INTERESTS THEREIN, AND CONFIRMATION THEREOF. § 1536. To sell real estate, when. § 1537. Verified petition for sale, what to contain and to what it may refer. § 1538. Order to persons interested to appear. § 1539. Copy to be served, assent given, or publication made. § 1.540. Hearing after proof of service. Presentation of claims. § 1541. Administrator, executor, and witnesses may be ex- amined. § 1542. To sell real estate or any part, when. § 1543. Order of sale, when to be made. § 1544. What the order of sale must contain. May be at public or private sale. § 1545. Interested persons may apply for order of sale. Form of petition. § 1546. To deliver copy of order to executor. § 1547. Notice of sale. § 1548. Time and place. § 1549. Private sale of real estate, how made, and notice. Bids, when and how received. § 1550. Ninety per cent of appraised value must be offered. § 1551. Purchase money on sale on credit, how secured. § 1552. Hearing and setting aside sale, and when resale may be ordered. § 1553. May file objections, when and who. § 1554. When order of confirmation is to be made and when not. S 1555. Conveyances. § 1556. Order of confirmation, what to state. § 1557. Sale may be postponed. § 1558. Notice of postponement. § 1559. Sale of real estate to pay legacies. § 1.560. Where payment of debts, etc., provided for by will. § 1561. Sale without order. May require security. § 1562. Where provision by will insufficient. 595 SALES AND CONVEYANCES. §§ 1536, 1537 § 1563. Estate subject to debts, etc. § 1564. Contribution among legatees. § 1565. Contract for purchase of lands may be sold, how. § 1566. Conditions of sale. § 1567. Purchaser to give bond. § 1568. Executor to assign contract. § 1569. Sales by executors or administrators of lands un- der mortgage or lien. § 1570. The holder of the mortgage or lien may purchase the lands. His receipt to the amount of his claim a valid payment. § 1571. Administrator and executor liable for misconduct in sale. § 1572. Fraudulent sales. § 1573. Limitation of actions for vacating sale, etc. § 1574. To what cases preceding section not to apply. § 1575. Account of sale to be returned. § 1573. Executor, etc, not to be purchaser. § 1536. When a sale of property of the estate is necessary to pay the allowance of the family, or the debts outstanding against the decedent, or the debts, expenses, or charges of administration or legacies, or when it appears to the satisfaction of the court that it is for the advantage, benefit, and best interests of the estate, and those inter- ested therein that the real estate, or some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate upon the order of the court; and an applica- tion for the sale of real property may also em- brace the sale of personal property. [Amend- ment approved March 23, 1893; Stats. 1S93, p. 212.] Sale of realty, authorized: Sec. 1516; interest un- der contracts may be included, sec. 1565; addition- al bond on, sec. 1389. ^ § 1537. To obtain such order for the sale of \ real property, he must present a verified petition ) to the superior court, or a judge thereof, setting o forth the amount of the personal estate that has § 1537 SAT.ES AND CONVEYANCES. 596 come to his bauds, and how much thereof, if auy, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon the family al- lowance or that will be due after the same has been in force for one year; the debts, expenses, and charges of administration already accrued, and an estimate of what will or may accrue dur- ing the administration; a general description of all the real property of which the decedent died seised, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or separate property; the names of the legatees and devisees, if any, and the heirs of the deceased, so far as known to the petitioner; and if said order of sale of real es- tate is petitioned for on the ground that it is for the advantage, benefit, and best interests of the estate and those interested therein that a sale be made, the petition, in addition to the foregoing facts, must set forth in what way an advantage or benefit would accrue to the estate and tliose inter- ested tiierein by such sale. If any of the matters herein enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth facts hereinbefore enumerated will not in- validate the subsequent proceedings if the de- fect be supplied by the proofs at the hearing and the general facts showing that such sale is nec- essary or that such sale is for the advantage, ben- efit, and best interests of the estate and those in- terested therein be stated in the decree. [Amend- ment approved March 23, 1893; Stats. 1893, p. 212.] Petition: Sec. 1518. If executor omits to apply. any other person may: Sec. 1545. Jurisdictional facts, presumption as to jurisdic- tion: Sec. 98; stating facts in order: See. 1704. 597 SALES AND CONVEYANCES. §§ 1538, 1539 Retiirii of sale: Sec. 1517. Summary sale of mine: Sec. 1580, ante. § 1538. If it appears to ttie court or judge, from sucli petition, that it is necessary, or that it would be for the advantage, benefit, and best interests of the estate and those interested therein, to sell the whole or some portion of the real es- tate for the purposes and reasons mentioned in the preceding section or any of them, such peti- tion must be filed, and an order thereupon made directing all persons interested in the estate to appear before the court, at a time and place spe- cified, not less than four nor more than ten weeks from the time of malting such order, to show cause why an order should not be granted to the executor or administrator for the sale of such es- tate. [Amendment approved ^Nlarcli 23, 1893; Stats. 1893, p. 213.] § 1539. A copy of the order to show cause must be personally served on all persons interest- ed in the estate, any general guardian of a minor so interested, and any legatee, or devisee, or heir of the decedent, provided they are residents of the county, at least ten days before the time appoint- ed for hearing the petition, or be published four successive weeks in such newspaper in the county as the court or judge shall direct. If all persons interested in the estate join in the petition for the sale, or signify in writing their assent there- to, the notice may be dispensed with, and the hearing may be had at any time. [Amendment approved INlarch 24, 1874; Amendments 1873-4, p. 370. In effect July 1, 1874.1 Notice, personal service of, see sees. 1011, 1707- 1709; 1710; publication of, sec. 1705. r.uardian Avlien infant a partv: Sees. 372. 373, 1722, 1769. §§ 1540-1542 SALES AND CONVEYANCES. 598 § 1540. The court, at the time and place ap- pointed in such order, or at such other time to which tlie hearing may be postponed, upon sat- isfactory proof of personal service or publica- tion of a copy of the order, by affidavit or other- wise, if the consent in writing to such sale of all parties interested is not filed, must proceed to hear the petition, and hear and examine the al- legations and proofs of the petitioners, and of all persons interested in the estate who may oppose the application. All claims against the decedent not before presented, if the period of presenta- tion has not elapsed, may be presented and passed upon at the hearing, [Amendment approved April 16, 1880; Amendments 1880, p. 95. In effect April IG. 1880.] § 1541. The executor, administrator, and wit- nesses may be examined on oath by either party, and process to compel them to attend and testify may be issued by the court or judge, in the same manner and with like effect as in other cases. [Amendment approved April IG, 1880: Amend- ments 1880, p. 95. In effect April 16, 1880.] Procuring attendance, etc: Sec. 1985, et seq. § 1542. If it appears to the satisfaction of the court, or a judge thereof, that it is necessary, or that it is for the advantage, benefit, and best in- terests of the estate and those interested therein, to sell a part of the real estate, and that by a sale thereof the residue of tlie estate, real and person- al, or some specific part thereof, would be great- ly injured or diminished in value, or subjected to expenses, or rendered unprofitable, or that after any such sale the residue would bo so small in quantity or value, or would be of such a character with reference to its future disposition among their heirs or devisee, as clearly to render it to the best interests of all concerned tliat the same 599 SALES AND CONVEYANCES. §§ 1543, 1544 should be sold, the court may authorize the sale of the whole estate or any part thereof, as in the judgment of the court is necessary, or for the ad- vantage, benefit, and best interests of the estate and those interested therein. [Amendment ap- proved March 23, 1893; iStats. 1893, p. 213.] § 1543. If it appears to the satisfaction of the court, after a full hearing upon the petition and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for any of the causes mentioned in this article, or that a sale of the whole or some portion of the real estate is for the advantage, benefit, and best interests of the estate and those interested there- in, or if such sale be assented to by all the per- sons interested, an order must be made to sell the whole, or so much and such parts of the real estate described in the petition as the court shall judge necessary, or for the advantage, benefit, and best interests of the estate and those interested there- in. [Amendment approved March 23, 1893; Stats. 1893, p. 213.] Order, need not recite facts: Sec. 1704. Personal estate: See, as to ordering a sale of per- sonalty on application for sale of realty, sec. 1639. § 1544. The order of sale must describe the lands to be sold and the terms of sale, which may be for cash, or .on a credit not exceeding one year, payable in gross or in installments, and in such Ivind of money, with interest, as tlie court may direct. The land may be sold in one parcel or in subdivisions, as the executor or administrator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it appears tliat any part of such real estate has been devised, and not cliarged in such devise with the payment §§ 1545-1547 SALES AND CONVEYANCES. 600 of debts or legacies, the court must order the re- maiuder to be sold before that so devised. Ev- ery such sale must be ordered to be made at pub- lic auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of such real estate at private sale. The court may, if the same is asked for in the peti- tion, order or direct such real estate, or any part thereof, to be sold at either public or private sale, as the executor or administrator shall judge to be most beneficial for the estate. If the executor or administrator neglects or refuses to malie a sale under the order, and as directed therein, he may be compelled to sell, by order of the court, made on motion, after due notice, by any party interested. Contents of order: Sec. 1704. § 1545. If the executor or administrator ne- glects or refuses to apply for an order of sale when it is necessary, or when it is for the advan- tage, benefit, and best interests of the estate and those interested therein that the real estate or some portion thereof be sold, any person interest- ed may make application therefor in the samf manner as the executor or administrator, and nct- tice thereof must be given to the executor or ad- ministrator before the hearing. The petition of such applicant must contain as many of the mat- ters set forth in section one thousand five hun- dred and thirty-seven as he can ascertain, and the decree of sale must fix the period of time within which the executor or administrator must make the sale. [Amendment approved March 23, 1893: Stats. 189.3, p. 214.] § 1546. r Repealed March 24, 1874; Amend- ments 1873-4. p. 371; took effect July 1, 1874.] § 1547. When a sale is ordered, and is to be 301 SALES AND CONVEYANCES. §§ 1548, 1549 made at public auction, notice of the time and place of sale must be posted in three of the most public places iu the county in which the land is situated, and published iu a newspaper, if there be one printed in the same county, but if none, then in such paper as the court may direct, for three weeks successively next before the sale; the lands and tenements to be sold must be de- scribed with common certainty in the notice. § 1548. Sales at public auction must be made in the county where the land is situated, but when the land is situated in two or more counties it may be sold in either. The sale must be made between the hours of nine o'clock in the morn- ing and the setting of the sun on the same day, /ind must be made on the day named in the notice of sale, unless the same is postponed. Postponement of sale: Sees. 1557, 1558. § 1549. When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county; if none, then in such paper as the court or a nudge thereof may direct, for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be de- scribed with common certainty. The notice must state a day on or after which the sale will be made, and a place where offers or bids will be received. The day last referred to must be at least fifteen days from the first publication of notice; and the sale must not be made before that day, but must be made within six months there- after. The bids or offers must be in writing, and may be left at the place designated in the notice, or delivered to the executor or administrator per- Code Civ. Proc— 51. «§ 1550-1552 SALES AND CONVEYANCES. 602 sonally, or may be filed iu the office of the clerk of the court to which the return of sale must be made, at any time after the first publication of the notice and before the making of the sale. If it be shown that it will be for the best interest of the estate, the court or judge may, by an or- der, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale may be made on or after a day less than fifteen, but not less than eight days from the first publication of the notice, in which case the notice of sale, and the sale, may be made to correspond with such order. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 95. In effect April 16, 1880.] § 1550. No sale of real estate at private sale shall be confirmed by the court, unless the sum offered is at least ninety x)er cent, of the appraised value thereof, nor unless such real estate has been appraised within one year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too low, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraise- ment of an estate. This may be done at any time before the sale or the confirmation thereof. § 1551. The executor or administrator must, when the sale is made upon a credit, take the notes of the purchaser for the purchase-money, witli a mortgage on the property to secure their payment. § 1552. The executor or administrator, after making any sale of real estate, must make a re- turn of his proceedings to the court, which must be filed in the office of the clerk at any time sub- sequent to the sale. A hearing upon the return 603 SALES AND CONVEYANCES. §§ 1553, 1554 of the proceedings may be asked for in the return or by petition subsequently, and thereupon the clerk must flx the day for the hearing-, of which notice of at least ten days must be given by the clerk by notices posted in three public places in the county or by publication in a newspaper, and must briefly indicate the land sold, the sum for which it was sold, and must refer to the return for further particulars. Upon the hearing, the court must examine the return and witnesses in relation to the same, and if the proceedings were unfair or the sum bid disproportionate to the val- ue, and if it appears that a sum exceeding such bid at least ten per cent exclusive of a new sale may be obtained, the court may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects con- ducted as if no previous sale had talcen place. If an offer of ten per cent more in amount than that named in. the return be made to the court, in writing, by a responsible person, it is in the dis- cretion of the court to accept such offer and con- firm the sale to such person, or to order a new sale. [Amendment approved March 23, 1891; Stats. 1891, p. 427.] Sales under will: See. 1561. Notice of petition for confirmation of sale, de- scription of property by reference in: Sec. 1712. Attorney, court may appoint, to represent party: Sec. 1718. § 1553. When return of the sale is made and filed, any person interested in the estate may file Avritten objections to the confirmation thereof, and may be heard thereon, when the return is lieard by the court or judge, and may produce Avitnesses in support of liis objections. § 1554. If it appears to the court that the sale was legally made and fairly conducted, and that § 1555. SALES AND CONVEYANCES. C04 the Slim bid was not disproportionate to the value of the property sold, and that a greater sum, as above speciiied, cannot be obtained, or if the in- creased bid mentioned in section fifteen hundred and fifty-two be made and accepted by the court, the court must make an order confirming the sale, and directing conveyances to be executed. The sale, from that time, is confirmed and valid, and a certified copy of the order confirming it and di- recting conveyances to be executed, must be re- corded in the olfice of the recorder of the county in which the land sold is situated. If, after the confirmation, tlie purcliased neglects or refuses to comply Avith the t^rms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be jnade of tlie property. If the amount realized on such resale does not cover the bid and the expens- es of the previous sale, such purchaser is liable fur the deficiency to the estate. Proof of notice before sale and recital in: Sec. 1556; recording certified copy, sec. 1719. § 1555. Conveyances must thereupon be exe- cuted to the purchaser by the executor or admin- istrator, and they must refer to the orders of the CO art authorizing and confirming the sale of the property of tlie estate, and directing conveyances thereof to be executed, and to the record of the order of confirmation in the olfice of the county recorder, either by the date of such recording, or by tlie date, volume, and page of the record, and such reference shall have the same effect as if the orders were at large inserted in the convey- ance. Conveyances so made convey all the right, title, interest, and estate of the decedent in the premises, at the time of his death; if prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest in the premises, oilier than or in addition to that of the 605 SALES AND CONVEYANCES. §§ 155G-1560 decedent at the time of his death, such right, title, or interest, also passes bj^ sucli conveyances. [Amendment approved April 16, 1880; Amend- ments 1880, p. 96. In effect April 16, 1880.] § 1556. Before any order is entered confirming the sale, it must be proved to the satisfaction of the court that notice was given of the sale as pre- scribed, and the order of confirmation must show that such proof was made. Notice of sale, generally: Sees. 1547, 1549. § 1557. If, at the time appointed for the sale, the executor or administrator deems it for the in- terest of all persons concerned therein that the same be postponed, he may postpone it from time to time, not exceeding in all three months. § 1558. In case of a postponement, notice thereof must be given, by a public declaration, at the time and place first appointed for the sale, and if the postponement be for more than one day, further notice must be given, by posting no- tices in three or more public places in the county where the land is situated, or publishing the same, or both, as the time and circumstances will admit. Publishing notice: Sec. 1705. § 1559. [Repealed March 24, 1874; Amend- ments 1873-4, p. 371; took effect July 1, 1874.] § 1560. If the testator malces provision by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of ad- ministration, or family expenses, they must be paid according to such provision or designation, out of the estate thus appropriated, so far as the same is sufficient. Insufiicient provision, in will, effect of: Sec. §§ 1561-1564 SALES AND CONVEYANCES. 606 Payment of debts and expenses, generallj-: Sec. 1516. Order of appropriation: Civil Code, sec. 1359. § 1561. Wlien property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate Avithout order of the court, and at either public or private sale, and with or without no- tice, as the executor may determine; but the exec- utor must make return of such sales, as in other cases; and if directions are given in the will as to the mode of selling, or the particular proper- ty to be sold, such directions must be observed. In either case no title passes unless the sale be confirmed by the court. [Amendment approved April 16. 1880; Amendments 1880, p. 95. In ef- fect April 16, 1880.] § 1562. If the provision made by the will, or the estate appropriated therefor, is insufficient to pay the debts, expenses of administration, and family expenses, that portion of the estate not de- vised or disposed of by the will, if any. must be appropriated and disposed of for that purpose, ac- cording to the provisions of this chapter. § 1563. The estate, real and personal, given by will to legatees or devisees, is liable for the debts, expenses of administration, and family expenses, in proportion to the value or amount of the sev- eral devises or legacies; but specific devises or leg- acies are exempt from such liability, if it appears to the court necessary to carry into effect the in- tention of the testator, and there is other sufficient estate. Keal and personal property, alike chargeable: 8ec. 1516. § 1564. When an estate given by will has been sold for the payment of debts or (wpenses, all 607 SALES AND CONVEYANCES. §§ 1565-1567 the devisees and legatees must contribute accord- ing- to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the court, when distribution is made, must, by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distributive shares, respec- tivel5% for the purpose of paying such contribu- tion. [Amendment approved April 16, 1880: Amendments 1880, p. 97. In effect April 16, 1880.] § 1565. If a decedent, at the time of his death, was possessed of a contract for the purchase of lands, his interest in such land and under such contracts may be sold on the app^cation of his executor or administrator, in the same manner as if he had died seised of such land; and the same proceedings may be had for that purpose as are prescribed in this chapter for the sale of lands of which he died seised, except as hereinafter pro- vided. § 1566. The sale must be made subject to all payments that may thereafter become due on such contracts, and if there are any such, the sale must not be confirmed by the court until the purchas- ers execute a bond to the executor or administra- tor for the benefit and indemnity of himself and of the persons entitled to the interest of the de- cedent in the lands so contracted for, in double the whole amount of payments thereafter to be- come due on such contract, with such sureties as tlie court or judge shall approve. [Amendment approved April 16, 1880; Amendments 1880, p. 97. In effect April 16, 1880.] § 1567. The bond must be conditioned that the purchaser will make all payments for such land that become due after the date of the sale, and §§ 1568, 1569 SALES AND CONVEYANCES. 608 will fully indemnify the executor or administrator and the persons so entitled, against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such con- tract. § 1568. Upon the confirmation of the sale, the executor or administrator must execute to the pur- chaser an assignment of the contract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons entitled to the interest of the decedent, in the lands sold at the time of the sale; and the purchaser has the same rights and remedies against the vendor of such land as the decedent would have had if he were living. § 1569. When any sale is made by an executor or administrator, pursuant to provisions of this chapter, of lands subject to any mortgage or oth- er lien, which is a valid claim against the estate of the decedent, and has been presented and al- lowed, the purchase money must be applied, af- ter paying the necessary expenses of the sale, first, to the payment and satisfaction of the mort- gage or lien, and the residue, if any, in due course of administration. The application of the pur- chase money to the satisfaction of the mortgage or lien must be made without delay; and the land is subject to such mortgage or lieu until the pur- chase money has been actually so applied. No claim against any estate, which has been present- ed and allowed, is affected by the statute of limi- tations, pending the proceedings for the settle- ment of the estate. The purchase money, or so much thereof as may be sufficient to pay such mortgage or lien, with interest, and any lawful costs and charges thereon, may be paid into the court, to be received by the clerlv thereof, Avhere- upon the mortgage or lien upon the land must 609 SALES AND CONVEYANCES. §§ 1570-1572 cease and the purchase money must be paid over by the clerk of the court without delay, in pay- ment of the expenses of the sale, and in satisfac- tion of the debt to secure which the mortgage or other lieu was taken, and the surplus, if any, at once returned to the executor or administrator, unless for good cause shown, after notice to the executor or administrator, the court otherwise di- rects. [Amendment approved April 16, 1880; Amendments 1880, p. 97. In effect April 16, 1880.] Valid claim, against estate of decedent: See sees. 1493, 1497, 1500. Paid into court: See sees. 572-74, 2104. § 1570. At any sale, under order of the court, of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment pro tanto. If the amount for which he purchased the property is insufficient to defray the expenses and dis- charge his mortgage or lien, he must pay to the court, or the clerk thereof, an amount sufficient to pay such expenses. [Amendment approved April 16, 1880; Amendments 1880, p. 97. In effect April 16, 1880.] § 1571. If there is any neglect or misconduct in the proceedings of the executor in relation to any sale, by which any person interested in the estate suffers damage, the party aggrieved may re- cover the same in an action upon the bond of the executor or administrator, or otherwise. Bond of exeeutor, etc.: Sec. 1388. § 1572. Any executor or administrator who fraudulently sells any real estate of a decedent contrary to or otherwise than under the provis- ions of this chapter, is liable in double the value §§ 1573-1575 SALES AND CONVEYANCES. 610 of the land sold, as liquidated damages, to be re- covered in an action by the person having an es- tate of inheritance therein. Prohibited connection with sale: Sec. 1576. § 1573. No action for the recovery of any es- tate sold by an executor or administrator, under the provisions of this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the settlement of the final ac- count of the executor or administrator. An ac- tion to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds up- on which the action is based. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 112. In effect April 16, 1880.1 Persons under disability, provision inapplicable to: See sec. 1574. Discovery of the fraud, within three years of: See sec. 338, subd. 4. § 1574. The preceding section shall not apply to minors or others under any legal disability to sue at the time when the right of action first ac- crues; but all such persons may commence an ac- tion at any time within three years after the re- moval of the disability. § 1575. When a sale has been made by an ex- ecutor or administrator of any property of the es- tate, real or personal, he must return to the court, within thirty days thereafter, an account of sales, verified by his affidavit, or in case of his absence from tlio county, or other inability, by the affida- vit of his attorney. If he neglects to mal^e such return, he may be punished by attachment, or his lotters may be revolted, one day's notice having been first given him to appear and show cause 311 SALES AND CONVEYANCES. §§ 1576, 1577 Avhy such attaclimeiit sli(,ul(l not issue, or such re- vocatiou should uot be made. [Approved March 3, 1897; Stats. 1897, ch. 60. In effect immediate- ly.] Attachment for contempt: Sec. 1212 et seq. Notice by citation: Sec. 1710; also, sees. 1707- 1709. § 1576. No executor or administrator must, di- rectly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale. Purchase by administrator, etc., forbidden: Sec. 1617. ARTICLE V. [New article added March 15, 1887, Stats. 1887. p. 115.] MORTGAGES AND LEASES OF REAL ESTATE. § 1577. Mortgage of real property of decedent. § 1578. Proceedings to obtain order. § 1579. To obtain lease of realty. § 1577. Whenever in any estate now being ad- ministered or that may liereafter be administered it shall appear to the Superior Court, or a judge thereof, to be for the advantage of the estate to raise money upon a note or notes, to be secured by a mortgage of the real property of any dece- dent, or of a minor, or an incompetent person, or any part thereof, or to make a lease of said realty (»r any part thereof, the court or judge, as often as occasion therefor shall arise in the administration of any estate, may. on a petition, notice, and hear- ing as provided in this article, authorize, empow- er, and direct the executor or administrator or or guardian of such minor or incompetent person 10 mortgage such real estate or any part thereof, and to execute a note or notes to be secured by § 1578 SALES AND CONVEYANCES. 612 such mortgage, or to lease such real estate or any part thereof. [Amendmeut approved March 3, 1893; Stats. 1893, p. 72; in effect immediately.] This section was also amended 1891 (Stats. 1891, p. 247.) § 1578. To obtain an order to mortgage such realty, the proceedings to be taken and the effect thereof shall be as follows: First. The executor or administrator of any es- tate, or guardian of any minor or incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons, may file a verified petition showing: 1. The particular purpose or purposes for which it is proposed to make the note or notes and mort- gage, which shall be either to pay the debts, leg- acies, or charges of administration, or to pay, re- duce, extend, or renew some lien or mortgage al- ready subsisting in said realty or some part there- of. 2. A statement of the debts, legacies, charges of administration, liens or mortgages to be paid, re- duced, extended, or renewed, as the case may be. 3. The advantage that may accrue to the estate from raising the required money by note or notes and mortgage or providing for the payment, re- duction, extension, or renewal of the subsisting liens or mortgages, as the case may be. 4. The amount to be raised, with a general de- scription of the property proposed to be mort- gaged; and, 5. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, as the case may be, so far as known to the petitioner. Second. Upon filing such petition, an order shall be made by the court or judge, requiring all 613 SAI.ES AND CONVEYANCES. § 157S persons interested in the estate to appear before the court or judge, at a time and place specified, not less than four nor more than ten weeks there- after, then and there to show cause why the real- ty (briefly indicating it), or some part thereof, should not be mortgaged for the amount men- tioned in the petition (stating such amount), or such lesser amount as to the court or judge shall seem meet, and referring to the petition on file for further particulars. Third. The order to show cause may be person- ally served on the persons interested in the estate, at least ten days before the time appointed for hearing the petition, or may be published for four successive weeks in a newspaper of general cir- culation, published in the county. Fourth. At the time and at the place appointed in the order to show cause, or at such other time and place to which the hearing may be postponed (the power to make all needful postponements be- ing hereby vested in the court or judge), having first received satisfactory proof of personal ser- vice or publication of the order to show cause, the court or judge must proceed to hear the petition and any objections that may be filed or presented thereto. Upon such hearing, witnesses may be compelled to attend and testify, in the same man- ner, and with like effect, as in other cases; and if, after a full hearing, the court or judge is satis- fied that it will be for the advantage of the estate to mortgage the whole or any portion of the real estate, an order must be made authorizing, em- powering, and directing the executor or adminis- trator, or the guardian of such minor or incompe- tent person, to mal^e such mortgage, and a promis- sory note or notes to the lender, ^'or the amount of the loan, to be s(^cured by said mortgage; the or- der may direct that a lesser amount than that named in the petition be borrowed, and may pre- cede Civ. Proc— 52. ;§ 1578 SALES AND CONVEYANCES. <;i-f scribe the maximum rate of interest and period of tlie loan, and may direct in what coin or cur- rency it sliall be paid, and require tliat the interest and the whole or any part of the principal be paid, from time to time, out of the whole estate or any part thereof, and that any buildings on the prem- ises to be mortgaged shall be insured for further security of the lender, and the premiums paid from such income. Fifth. After the making of the order to mort- gage, the executor, administrator, or guardian of a minor or of an incompetent person shall exe- cute and deliver a promissory note or notes for the amount and period specified in the order, and shall execute, acknowledge, and deliver a mortgage of tlie premises, setting forth in the mortgage that it is made by authority of the order, and giving the date of such order. A certified copy of the or- der shall be recorded in the office of the county recorder of every county in which the encumbered land, or any portion thereof, lies. The note or notes and mortgage shall be signed by the exec- utor, administrator, or guardian as such, and shall create no personal liability against the person so signing. Sixth, Every note or notes and inortgage so made shall be effectual to mortgage and hypoth- ecate all the right, title, interest, and estate which the decedent, minor, or incompetent person had in the premi8es descri])ed therein at the time of the death of such decedent, or at the time of the appointment of the guardian of such minor or of such incompetent person, or prior thereto, and any right, title, or interest in said premises acquired by the estate of such decedent, minor, or incom- petent person, by operation of law or otherwise, since the time of the death of such decedent, or the ap])ointment of the guardian of such minor or incompetent person. Jurisdiction of the court to administer the estate of such decedent, minor. 615 SALES AND CONVEYANCES. § 1578 or incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the note or notes and mortgage, and such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns. No iregularity in the pro- ceedings shall impair or invalidate the same or the note or notes and mortgage given in the pur- suance thereof, and the mortgagee, his heirs ana assigns, shall have and possess the same rights and remedies on the note or notes and mortgage as if it had been made by the decedent prior to his death, the minor after reaching the age of ma- turity, or the incompetent person when legally competent; provided, however, that upon any fore- closure, if the proceeds of the encumbered prop- erty are insufficient to pay the note or notes, and mortgage, no judgment or claim for any deficien- cy of such proceeds to satisfy the note or notes and mortgage, or the costs or expenses of sale, shall be had or allowed, except in cases where the note or notes and mortgage were given to pay. reduce, extend, or renew a lien or mortgage sub- sisting on the realty, or some part thereof, at the time of the death of the decedent, and the indebt- edness secured by such lien or mortgage was an allowed and approved claim against his estate, or a lien upon the interest of the minor in said real estate at the time it vested in him, or upon the estate of the incompetent at the time the incompe- tency of the incompetent person was so declared by the court; and provided also, that in cases af- fecting the estate of the deceased persons, the part of the indebtedness remaining unsatisfied must be classed and paid with other demands against the estate, as provided in article three, chapter ten, of title eleven, part three, of this code, with respect to mortgages subsisting at the time of death. [Amendment api>roved March 3, 1S93; Stats. 1893, p. 72; in effect immediately.] ^ 1579 SALES AND CONVEYANCES. 616 This section was also amended in 1887; Stats. 1887, p. 115; and in 1891, Stats. 1891, p. 247. § 1579. To obtain an order to lease the realty, the proceedings to be tal^en and the effect thereof shall be as follo^Ys: First. The executor, administrator, guardian of a minor or of an incompetent person, or any per- son interested in the estates of such decedents, minors, or incompetent persons, may file a verified petition showing: 1. The advantage or advantages that may ac- crue to the estate from giving a lease. 2. A general description of the property pro- posed to be leased. 3. The term, rental, and general conditions of the proposed lease. 4. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, so far as knoAvn to the petitioner. Second. Upon filing such petition an order shall be made by the court or judge requiring all per- sons interested in the estate to appear before the court or judge, at a time and place specified, not less than two nor more than four weeks thereafter, then and there to show cause why the realty (briefly indicating it) should not be leased for the period (stating it), at the rental mentioned in the petition (stating it), and referring to the petition on file for further particulars. Third. The order to show cause may be per- sonally served on the persons interested in the es- tate at least ten days before the time appointed for hearing the petition, or it may be published for two successive weeks in a newspaper of gener- al circulation in the county. Fourth. At the time and place appointed to sliow cause, or at such otlier time and place to wliicli tlie hearing may be postponed (the power 617 SALES AND CONVEYANCES. § 1579 to make all needful postponements being hereby vested in tlie court or judge), the court or judge having first received satisfactory proof of per- sonal service or publication of the order to show cause, must proceed to hear the petition, and any objections that may have been tiled or presented thereto. Upon such hearing, witnesses may be compelled to attend and testify in the same man- ner and with like effect as in other cases, and the court may, in its discretion, appoint one or more, not exceeding three, disinterested persons to ap- praise the rental value of the premises, and di- rect that a reasonable compensation for the ser- vices, not exceeding five dollars per day, be paid by the estate. If, after a full hearing, the court or judge is satisfied that it will be for the advan- tage of the estate to lease the whole or any por- tion of the real estate, an order must be made au- thorizing, empowering, and directing the executor, administrator, or the guardian to make such lease. The order may prescribe the minimum rental to be received for the premises, and the pe- riod of the lease, which must in no case be longer than for five years, and may prescribe the other terms and conditions of such lease. Fifth. After the making of the order to lease, the executor, administrator, or guardian of a mi- nor or of an incompetent person shall execute, ac- knowledge, and deliver a lease of the premises for the term and period and with the conditions spe- cified in the order, setting forth in the lease that it is made by authority of the order, and giving the date of such order. A certified copy of the or- der shall be recorded in the otfice of the county recorder of every county in which the leased land or any portion thereof lies. Sixth. Every lease so made shall be effectual to demise and let, at the rent, for tlie term, and upon the conditions therein prescribed, the prem- .^ 1581 POWERS AND DUTIES. 618 ises described therein. Jiirisdictiou of tlie court to administer tlie estate of the decedent, the mi- nor, or of the incompetent person shall be effectu- al to vest such court and judge with jurisdiction to make the order for the lease, and such jurisdic- tion shall conclusively inure to the benefit of the lessee, his heirs and assigns. No omission, error, or irregularity in the proceedings shall impair or invalidate the same, or the lease made in pursu- ance thereof. [Amendment approved March 31,^ 1891; Stats. 1891, p. 249.] This section was also amended in 1887; Stats. 1887, p. 117. CHAPTER VIII. OI^ THE POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS, AND OF THE MANAGE- MENT OF ESTATES. .§ 1581. Executors to take possession of the entire estate. § 1582. Executors may sue and be sued for recovery of property. § 1583. May maintain actions for waste, conversion, and trespass. § 1584. Executor and administrator may be sued for waste or trespass of decedent. § 1585. Surviving partner to settle up business. Interest therein to be appraised. Account to be rendered. § 1586. Actions on bond of executor or administrator may be brought by another administrator. § 1587. What executors are not parties to actions. S 1588. May compound. § 1589. Recovery of property fraudulently disposed of by testator. § 1590. When executor to sue, as provided in preceding sec- tion. § 1591. Disposition of estate recovered. § 1581. The executor or administrator must talvc into his possession all the estate of the de- cedent, real and personal, and collect all debts due to the decedent or to the estate. For the purpose 619 POWERS AND DUTIES. § 15S:', 15^S of bnugiug- suits to quiet title, or for partition of sucli estate, the possession of the executors or ad- ministrators is the possession of the heirs or de- visees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administra- tion, as provided in this title. Possession of estate by executor, etc.: Sec. 1452. Collection of debts, when no liability for fail- ure: Sec. 1G15. Executor or administrator, suits by and against: Sees. 1582-1584, 1585-1587, 1589, 1590. Heir may maintain ejectment and suit to quiet title during possession of executor, etc.: Sees. 1452, 738. § 1582. Actions for the recovery of any proper- ty, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any ad- verse claim thereon, and all actions founded upon contracts, may be maintained by and against ex- ecutors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates. [Amendment approved March 26, 1895; Stats. 1895, p. 80. In effect March 26, 1895.] Executors and administratox's — Suits by, after substitution, sec. 385; without joining beneficia- ries, sec. 369. Suits against, costs, sec. 1509. Suggestion of death where action by deceased pending: Sec. 385. The right to maintain suits for the possession of The real property of the estate: See sec. 1452, ante. § 1583. Executors and administrators maj' maintain actions against any person who has wasted, destroyed, taken, or carried away, or con- verted to his own use, the goods of their testator §§ 1581, 1586 POWERS AND DUTIES. 620 or intestate, in bis lifetime. Tliey may also main- tain actions for trespass committed on the real estate of the decedent in liis lifetime. § 1584. Any person or his personal representa- tives may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, talven, or carried away, or converted to his oAvn use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. § 1585. AVhen a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to con- tinue in possession of the partnership, and to set- tle its business, but the interest of the decedent in the partnership must be included in the in- ventory, and be appraised as other property. The surviving partner must settle the affairs of the partnership without delay, and account with the executor or administrator, and pay over such bal- ances as may from time to time be payable to him, in right of the decedent. Upon the application of the executor or administrator, the court, or a judge tliereof, may, whenever it appears necessary, or- der the surviving partner to render an account, and in case of neglect or refusal may, after no- tice, compel it by attachment; and the executor- or administrator may maintain against him any action which the decedent could have maintained. [Amendment approved April 10. 1880: Amend- ments 1880, p. 98. In effect April 16, 1880.] Interest of decedent, in partnership, may be sold: Sec. 1524. § 1586. An administrator may, in his own name, for the use and benefit of all parties inter- ested in the estate, maintain actions on the bond 621 POWERS AND DUTIES. §§ 7, 1589158 of an executor, ©r of any former administrator of the same estate. Bond of executor or administrator: Sec. 1388 et seq. § 1587. In actions by or against executors, it is not necessary to join those as parties to whom letters were issued, but who have not qualified. Defendants joined in actions: Sees. 379, 382. § 1588. Whenever a debtor of the decedent is unable to pay all his debts, the executor or ad- ministrator, with the approbation of the court, or a judge thereof, may compound with him and give him a discharge, upon receiving a fair and just dividend of his effects. A compromise may also be authorized when it appears to be just, and for the best interest of the estate. [Amend- ment approved April IG, 1880; Amendments 1880, p. 98. In effect April 16, 1880.] Insolvency: Sec. 1822. § 1589. When there is a deficiency of assets in the hands of an executor or administrator, and when the decedent, in his lifetime, has con- veyed any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed, and may also, for the ben- efit of the creditors, sue and recover all goods, chattels, rights, or credits which have been so conveyed by the decedent in his lifetime, what- §S 1590, 1591 POWERS AND DUTIES. ' 622 ever may have been the manner of sncli fraud- ulent conveyance. Executor or administrator may sue witliout joining beneficiaries: Sec. 369. Power to bring action: Sees. 1452, 1581-1583. Fraudulent conveyances: See sees. 1590, 1591. § 1590. No executor or administrator is bound to sue for sucli estate, as mentioned in the pre- ceding section, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit,, or give such security to the executor or adminis- trator thereof, as the court, or a judge thereof, shall direct. [Amendment approved April 16, 1880; Amendments 1880, p. 98. In effect April 16, 1880.] § 1591. All real estate so recovered must be sold for the payment of debts, in the same man- ner as if tlie decedent had died seized thereof, upon obtaining an order therefor from the court; and the proceeds of all goods, chattels, rights, and credits so recovered must be appropriated in pay- ment of the debts of the decedent in the same manner as other property in the hands of the ex- ecutor or administrator. [Amendment approved April 16, 1880: Amendments 1880. p. 98. In effect April 16, 1880.] 623 CONVEYANCE. §§ 1597, 159S CHAPTER IX. OP THE CONVEYANCE OF REAL ESTATE BY EXECU- TORS AND ADMINISTRATORS IN CERTAIN CASES. § 1597. Executor to complete contracts for sale of real es- tate. § 1598. Petition for executor to make conveyance, and notice of hearing. § 1599. Interested parties may contest. § 1600. Conveyances when ordered to be made. § 1601. Execution of conveyance and record thereof, how enforced. § 1602. Rights of petitioner to enforce contract. § 1603. Effect of conveyance. § 1604. Effect of recording a copy of the decree. § 1605. Recording decree does not supersede power of court to enforce it. § 1606. Where party to whom conveyance to be made is dead. § 1607. Decree may direct possession to be surrendered. § 1597. When a person who is bound by con- tract in writing to convey any real estate dies be- fore making the conveyance, and in all cases Avhen such decedent, if living, might be compell- ed to make such conveyance, the court may make a decree authorizing and directing his executor or administrator to convey such real estate to the l>orson entiiled thereto. [Amendment approved April 16, 1880; Amendments 1880, p. 99. In effect April 16, 1880.] § 1598. On the presentation of a verified peti- tion by any person claiming to be entitled to such conveyance from an executor or administrator, setting forth the facts upon which the claim is predicated, the court, or a .inflge thereof, must ap- point a time and place for hearing the petition, and must order notice thereof to be published at Ipast four successive weeks before such hearing, in such newspaper in this State as he may desig- ?§ 1599-1602 CONVEYANCE. 624 iiate. [Ameiidmeiit approved April 16, 1880; Amendments 1880, p. 99. In effect April IG, 1880.] Yerilication of pleadings: See. 446. Publication of notice: Sec. 1705. Petition: Sec. 1518. § 1599. At the time and place appointed for the hearing, or at such other time to which the same may be postponed, upon satisfactory proof by affidavit or otherwise of the due publication of the notice, the court must proceed to a hearing, and all persons interested in the estate may ap- pear and contest such petition, by filing their ob- jections in writing, and the court may examine, on oath, the petitioner and all who may be pro- duced before him for that purpose. § 1600. If, after a full hearing upon the peti- tion and objections, and examination of the facts and circumstances of the claim, the court is sat- isfied that the petitioner is entitled to a convey- ance of the real estate described in the petition, a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the petitioner must be made, entered on the minutes of the court and recorded. § 1601. The executor or administrator must execute the conveyance according to the direc- tions of the decree, a certified copy of which must be recorded with the deed in the office of the re- corder of the county where the lands lie, and is prima facie evidence of the correctness of the pro- ceedings, and of the authority of the executor or administrator to make the conveyance. [Amend- ment approved March 24. 1874: Amendments 1873-4, p. 371. In effect July 1, 1874.] § 1602. If, upon hearing, as hereinbefore pro- vided, the right of the petitioner to have a specific 625 CONVEYANCE. §§ 1603-1306 performance of the conti-act is found to be doubt- ful, the court must dismiss tlie petition without prejudice to the right of the petitioner, who may, at any time within six mouths thereafter, pro- ceed by action to enforce a specific performance thereof. [Amendment approved April 16, 1880; Amendments 1880, p. 99. In effect April 16, 1880.] § 1603. Every conveyance made in pursuance of a decree as provided in this chapter, shall pass the title to the estate contracted for, as fully as if the contracting party himself was still living, and executed the conveyance. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 99. In effect April 16, 1880.] Conveyances by executor, etc.: Sec. 1555. § 1604. A copy of the decree for a conveyance, as provided in this chapter, duly certified and re- corded in the office of the recorder of the county where the lands lie, gives the person entitled to the conveyance a right to the possession of the lands contracted for, and to hold the same accord- ing to the terms of the intended conveyance, in lilve manner as if they had been conveyed in pur- suance of the decree. [Amendment approved April 16, 1880; Amendments 1880, p. 99. In effect April 16, 1880.] § 1605. The recording of any decree, as provid- ed in the preceding section, shall not prevent the court malving the decree from enforcing the same by other process. § 1606. If the person entitled to the convey- ance dies before the commencement of proceed- ings therefor under this chapter, or before the completion of the conveyance, any person entitled to succeed to his rights in the contract, or the ex- ecutor or administrator of such decedent, may, Code Civ. Proc— .'iS. §§ 1607, 1612 ACCOUNTS. 626 for the benefit of the person so entitled, com- mence such proceedings or prosecute any ah-eady commenced, and the conveyance must be so made as to vest the estate in the persons entitled to it, or in the executor or administrator, for their ben- efit. V§ 1607. The decree provided for in this chapter may direct the possession of the property therein \ V described to be surrendered to the person entitled 'V thereto, upon his producing the deed and a cer- tified copy of the decree, when, by the terms of the contract, possession is to be surrendered. CHAPTER X. ACCOUNTS AND OF PAYMENT OF DEBTS. ARTICLE I. LIABILITIES AND COMPENSATION OP EXECUTORS. § 1612. When executor or administrator personally liable. § 1613. Executor to be charged with all estate, etc. § 1614. Not to profit or lose by estate. § 1615. Uncollected debts without fault. § 1616. Compensation of the executor and administrator. § 1617. Not to purchase claims against the estate. § 1618. Executor's and administrator's commissions. § 1612. No executor or administrator is ^ ^chargonble upon any special promise to answer ,''"" damages or to pay the debts of the testator or intestate out of his own estate, unless the agree- ment for that purpose, or some memorandum or note thereof, is in writing and signed by such ex- ecutor or administrator, or by some other person by him thereunto specially authorized. Compare sec. 1973, subd. 2. 627 ACCOUNTS. §§ 1613-1616 § 1613. Every executor and administrator is chargeable in his account with the whole of the estate of the decedent Avhich may come into his possession, at the value of the appraisement con- tained in the inventory, except as provided in the following sections, and with all the interest, prof- it and income of the estate. § 1614. He shall not malce profit by the in- crease, nor suffer loss by the decrease or destruc- tion, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss if the sale has been justly made. Becoming purchaser: Sec. 1576. § 1615. No executor or administrator is ac- countable for any debts due to the decedent, if it appears that they remain uncollected without his fault. /> § 1616. He shall be allowed all necessary ex- ' penses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conducting the necessary proceed- ings or suits in courts, and for his services such >^ fees as provided in this chapter; but when the de- ^ ^ cedent, by his will, makes some other provision '^ ^ for the compensation of his executor, that shall be a full compensation for his services, unless, by a written instrument, filed in the court, he re- nounces all claim for compensation provided by the will. [Amendment approved April IG, 1880; Amendments 1880, p. 99. In effect April 16, 1880.] Compensation for services— commissions, where no provision in will, etc.: Sec. 1618. Costs: Sec. 1509. V §§ 1617, 1618 ACCOUNTS. 628 § 1617. No administrator or executor shall purchase any claim against the estate he repre- sents; and if he pays any claim for less than its nominal value, he is only entitled to charge in his account the amount he actually paid. Purchasing property of estate: Sec. 1576; fraud- ulently selling realty; Sec. 1572. § 1618. When no compensation is provided by the will, or the executor renounces all claim there- ;to, he must be allowed commissions upon the amount of estate accounted for by him, as fol- lows: for the first thousand dollars, at the rate of seven per cent: for all above that sum, and not exceeding ten thousand dollars, at the rate of five per cent; for all above ten thousand dollars, and not exceeding twenty thousand dollars, at the rate of four per cent: for all above twenty thou- sand dollars, and not exceeding fifty thousand dollars, at the rate of three per cent: for all above fifty thousand dollars, and not exceeding one hundred thousand dollars, at the rate of two per cent; and for all above one hundred thousand dol- lars, at the rate of one per cent. The same com- missions shall be allowed to administrators. In all cases, such further allowance may be made as the court may deem just and reasonable for any (extraordinary service, but the total amount of such extra allowance must not exceed one-half the amount of commissions alloAved by this sec- tion. Where tlie property of the estate is distrib- uted in kind, and involves no labor l>eyond the custody and distribution of the same, "the com- mission shall be computed on all the estate above the value of twenty thousand dollars, at one-half of the rates fixed in this section. Public adminis- tratoi-s sliall receive the same compensation and allowaiu-es as are allowed in this title to other administrators. All contracts between an execu- ^ 629 ACCOUNTS. § 1622 tor or administrator and au heir, devisee, or lega- tee, for a liiglier compeusatiou than that allowed by this section, shall be void; provided, this act shall not apply to estates now in course of ad- ministration, except where, and to the extent that, such estates consist of bonds and other securities, to be distributed without extra expense in admin- istration. [Amendment approved March 4, 1881; Amendments 1881, p. 36. In effect March 4, 1881.] ARTICLE II. ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMINISTRATORS. § 1622. Exhibit of receipts and disbursements, and claims allowed. § 1623. Citation to account at third term. § 1624. Petition for citation to render final or other ac- count. § 1625. Citation to account on application. § 1626. Objections to account, who may file. $ 1627. Attachment for not obeying citation. § 1328. To render accounts at expiration of term. § 1629. Executor to account after his authority revoked. § 1630. Revoking authority of executor, when. § 1631. To produce and file vouchers, which remain in court. § 1632. Vouchers for items less than twenty dollars, when accepted. § 1633. Day of settlement to be appointed, and notice thereof. § 1634. Final settlement, partition and distribution made at same time. § 1635. Interested party may file exceptions to account. § 1636. All matters may be contested by the heirs. Hear- ing. § 1637. Settlement of accounts to be conclusive, when and when not. § 1638. Proof of notice of settlement of accounts. § 1639. Sale of personal property. § 1640. Moneys invested by order of court. § 1622. Six months after his appointment, and at any time when required by the court, either §§ 1623-1G25 ACCOUNTS. 630 upon his own motion or upon the application of any person interested in the estate, the executor or administrator must render, for the information of the court, an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims presented against the estate, and the names of the claimants, and all other matters necessary to show the condition of its affairs. [Amendment approved April 16, 1880; Amendments 1880, p. 100. In effect April 16, 1880.] § 1623. If the executor or administrator fails to render an exhibit for six months after his ap- pointment, the court, or a judge thereof, must cause a citation to be issued requiring him to ap- pear and render it. [Amendment approved April 16, 1880; Amendments 1880, p. 100. In effect April 16, 1880.] Citation: Sees. 1707, 1711. § 1624. Any person interested in the estate may, at any time before the final settlement of accounts, present his petition to the court, or a judge thereof, praying that the executor or ad- ministrator be required to appear and render such exhibit, setting forth the facts showing that it is necessary and proper that such an exhibit should be made. [Amendment, approved April 16, 1880; Amendments 1880, 100. In effect April 16, 1880.] § 1625. If the court, or a judge thereof, is sat- isfied, either from the oath of the applicant or from any other testimony offered, that the facts alleged are true, and considers the showing of the applicant sufficient, he must direct a citation to be issued to the executor or administrator, requir- ing him to appear, at some day to be named in the citation, and render an exhibit as prayed for. [Amendment approved April 16, 1880; Amend- ments 1880, 100. In effect April 16th, 1880.] 631 ACCOUNTS. §§ 1626-1628 § 1626. When an exhibit is rendered by an exec- utor or administrator, any person interested may appear, and by objections in writing, contest any account or statement therein contained. The court may examine the executor or administrator, and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his letters must be revolved. Any person interested. See sec. 1635. Revocation for misconduct. Sec. 143G et seq. § 1627. If any executor or administrator neg- lects or refuses to appear and render an exhibit, after having been duly cited, an attachment may be issued against him, and such exhibit enforced, or his letters may be revoked, in the discretion of the court. Contempt: Sees. 1209, 1219. § 1628. Within thirty days after the expiration of the time mentioned in the notice to creditors within which claims must be exhibited, every executor or administrator must render a full ac- count and report of his administration. If he fails to present his account, the court or judge must compel the rendering of the account by attach- ments, and any person interested In the estate may apply for and obtain an attachment; but no attachment must issue unless a citation has been first issued, served, and returned, requiring the executor or administrator to appear and show cause why an attachment should not issue. Ev- ery account must exhibit all debts which have been presented and allowed during the period em- braced in the account. [Amendment approved March 11, 1876 Amendments 1875-6, 104. In effect 90 days after passage.] Account of administration— finals sees. 1647, 1052. Judge may receive at chambers: Sec. 166. §§ 1629-J632 ACCOUNTS. 632 § 1629. When the authority of an executor or administrator ceases, or is revoked for any reason, he may be cited to account before the court, at the instance of the person succeeding to the ad- ministration of the same estate, in lil^e manner as he might have been cited by any person interested in the estate during the time he was executor or administrator. [Amendment approved April 10, 1880; Amendments 1880, 101. In effect April 16, 1880.] § 1630. If the executor or administrator re- sides out of the county, or absconds or conceals himself so that the citation cannot be personally served, and neglects to render an account within thirty days after the time prescribed in this arti- cle, or if he neglects to render an account within thirty days after being committed where the at- tachment has been executed, his letters must be revoked. § 1631. In rendering his account, the executor or administrator must produce and file vouchers for all charges, debts, claims, and expenses which he has paid, which must remain in the court; and he may be examined on oath touching such pay- ments, and also touching any property and effects of the decedent, and the disposition thereof. When any voucher is required for other purposes, it may be withdrawn on leaving a certified copy on file: if a voucher is lost, or for other good rea- son cannot be produced on the settlement, the payment may be proved by the oath of any com- petent witness. Vouchers— required of claimant, sec. 1494; Lack- ing, see sec. 1632. § 1632. On the settlement of his account he may be allowed any item of expenditure not ex- ceeding twenty dollars, for which no voucher is 633 ACCOUxNTS. §§ 1633, 1634 produced, if such item be supported by his own uncontradicted oath positive to the fact of pay- ment, specifying wlien. where, and to whom it was made; but such allowances in the whole must not exceed five hundred dollars against any one estate, and if, upon such settlement of accounts, it ap- pear that debts against the deceased have been paid without the affidavit and allowance prescrib- ed by statute or sections one thousand four hun- dred and ninety-four, one thousand four hundred and ninety-flve, and one thousand four hundred and ninety-six of this Code, and it shall be proven by competent evidence to the satisfaction of the court that such debts were justly due, were paid in good faith, that the amount paid was the true amount of such indebtedness over and above all payments or set-off, and that the estate is solvent, it shall be the duty of the said court to allow the said sums so paid in the settlement of said ac- counts. [Amendment approved April 16, 1880; Amendments 1880, 101. In effect April 16, 1880.] § 1633. When any account is rendered for set- tlement, the clerk of the court must appoint a day for the settlement thereof, and thereupon give no- tice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or ad- ministrator, and the day appointed for the settle- ment of the account. If, upon the final hearing at the time of settlement, the court, or a judge thereof, should deem the notice insufficient from any cause, he may order such further notice to be given as may seem to him proper. [Amendment approved March 31, 1891; Stats. 1891, 428.] § 1634. If the account mentioned in the preced- ing section be for a final settlement, and a petition for the final distribution of the estate be filed with said account, the notice of settlement must state §§ 1635-1637 ACCOUNTS. 634 those facts, which notice must be given by post- ing or publication for at least ten days prior to the clay of settlement. On the settlement of said ac- count, distribution and partition of the estate to all entitled thereto may be immediately had with- out further notice or proceedings. [Amendment approved March 31, 1891; Stats. 1891, 428.] § 1635. On the day appointed, or any subse- quent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account, and contest the same. § 1636. All matters, including allowed claims not passed upon on the settlement of any former account, or on rendering an exhibit, or on mailing a decree of sale, may be contested by the heirs, for cause shown. The hearing and allegations of the respective parties may be postponed from time to time, when necessary, and the court may ap- point one or more referees to examine the ac- counts, and make report thereon, subject to con- firmation; and may allow a reasonable compensa- tion to the referees, to be paid out of the estate of the decedent. Referees: Sees. 638-64.5. § 1637. The settlement of the account and the allowance thereof bj' the court, or upon appeal, is conclusive against all persons in any way inter- ested in the estate, saving, however, to all persons laboring under any legal disability, their right to move for cause to reopen and examine the ac- count, or to proceed by action against the execu- tor or administrator, either individually or upon his bond, at any lime before final distribution; and in any action brought by any such person, the al- lowance and settlement of the account is prima facie evidence of its correctness. [Amendment ap- 635 ACCOUNTS. §§ 1638-1640 proved March 24, 1874; Amendments 1873-4, 372. In effect July 1st, 1874.] Conclusiveness of settlement: See sec. 1390, ante; see sec. 1638. § 1638. The account must not be allowed by the court until it is first proved that notice has been given as required by this chapter, and the decree must show that such proof Avas made to the satisfaction of the court, and is conclusive evi- dence of the fact. § 1639. Whenever it appears to the court on any hearing of an application for the sale of real property, that it would be for the interest of the estate that personal property of the estate, or some part of such property, should be first sold, the court may decree the sale of such personal property, or any part of it, and the sale thereof shall be conducted in the same manner as if the application had been made for the sale of such per- sonal property in the first instance. [New section approved March 24, 1874; Amendments 1873-4, 372. In effect July 1, 1874.] § 1640. Pending the settlement of any estate, on the petition of any party interested -therein, and upon good cause shown therefor, the court may order any moneys in the hands of the execu- tors or administrators to be invested for the ben- efit of the estate in securities of the United States or of this State. Such order can only be made after publication of notice of the petition in some newspaper, to be designated by the court or a judge thereof. [Amendment approved April 16, 1880; Amendments 1880, 101. In effect April 16, ISSO.] §§ 1J13, 1644 ACCOUNTS. 636 ARTICLE III. THE PAYMENT OF DEBTS OF THE ESTATE. § 1643. Order in which debts to be paid. § 1644. Where property insufficient to pay mortgage. § 1645. Estate insufficient, a dividend to be paid. § 1646. Funeral expenses and expenses of last sickness. § 1647. Order for payment of debts and discharge of the executor and administrator. § 1648. Provision for disputed and contingent claims. § IJ-iy. After decree for payment of debts, executor per- sonally liable to creditors. § 1650. Claims not included in order for payment of debts, how disposed of. § 1651. Order for payment of legacies and extension of time. § 1652. Final account, when to be made. § 1653. Neglect to render final account, how treated. § 1643. The debts of the estate, subject to the provisions of section twelve hundred and five, must be paid in the following order: 1. Funeral expenses; 2. The expenses of the last sickness; 3. Debts having preference by the laws of the United States; 4. Judgments rendered against the decedent m his lifetime, and mortgages in the order of their date. 5. All other demands against the estate. Preferred claims for wages: Sec. 1205. Family allowance: Sees. 1467, 1646. Mortgaged real estate: Sec. 1569. § 1644. Tlie preference given in the preceding- section to a mortgage only extends to the proceeds of the property mortgaged. If the proceeds of such property is insutficient to pay the mortgage, the l)art remaining unsatisfied must be classed with (»tlier demands n gainst the estate. Proceeds of property mortgaged: Sec. 1569. 637 ACCOUNTS. §§ 1645-1648 § 1645. If the estate is insufficient to pay all the debts of any one class, each creditor must be paid a dividend in proportion to his claim; and no creditor of any one class shall receive any pay- ment until all those of the preceding class are fully paid. § 1646. The executor or administrator, as soon as he has suflScient funds in his hands, must pay the funeral expenses, and expenses of the last '^'^ sickness, and the allowance made to the family ^ ^^ of the decedent. He may retain in his hands the' } necessary expenses of administration, but he is not obliged to pay any other debt or any legacy ^/ until, as prescribed in this article, the payment has been ordered by the court. § 1647. Upon the settlement of the accounts of the executor or administrator, as required in this chapter, the court must make an order for the payment of the debts, as circumstances of the es- tate require. If there is not sufficient funds in the hands of the executor or administrator, the court must specify in the decree the sum to be paid to each creditor. If the whole property of the estate be exhausted by such payment or distribution, such account must be considered as a final ac- count, and the executor or administrator is en- titled to his discharge on producing and filing the necessary vouchers and proofs showing that such payments have been made, and that he has fully coraplie istration, or of administration with the will an- nexed, if other property of the estate be discov- ered, or if it become necessary or proper for any cause that letters should be again issued. [Amendment approved, March 24, 1874; Amend- ments, 1873-4, p. 373. In effect July 1, 1874.] ARTICLE V. [New article added March 19, 1889; Stats. 1889, p. 337.] ACCOUNTS OF TRUSl EES— DISTRIBUTION. § 1699. Superior court not to lose jurisdiction by final juris- diction. ^ 17C0. Compensation of trustees, g 1701. Appeal from decree settling account. § 1702. Trustee may decline. g 1703. Jurisdiction. g 1703>^.Distribution to treasurer. § 1699. Where any trust has been created by or under any will to continue after distribution, the superior court shall not lose jurisdiction of the estate by final distribution, but shall retain juris- diction thereof for the purpose of the settlement of accounts under the trust. And any trustee cre- ated by any will, or appointed to execute any trust created by any will, may, from time to time, pending the execution of his trust, or may at the termination thereof, render and pray for the set- tlement of his accounts as such trustee, before the superior court in which the will Avas probated, and in the manner provided for the settlement of the accounts of executors and administrators. The trustee, or in case of his death, his legal rep- resentatives, shall for that purpose present to the court his verified petition, setting forth his ac- counts in detail, together with a verified statement of said trustee, giving the names and postoffice addresses, if known, of the cestuis que trust, and 661 PARTITION AND SETTLEMENT. §§ 1700, 1701 upou the tiling thereof, the court or judge shall tix a day for the hearing. The clerk must there- upon give notice thereof of not less than ten days, by causing notices to be posted in at least three public places in the county, setting forth the name of the trust estate, the trustee, and the day ap- pointed for the settlement of the account. The court, or a judge thereof, may order such further notice to be given as may be proper, and any such trustee may in the discretion of the court, upon application of any beneficiary of the trust, be or- dered to appear and render his account, after be- ing cited by service of citation, as provided for the service of summons in civil cases. Upon the filing of the account so ordered, the same pro- ceedings for the hearing and settlement thereof shall be had as are hereinabove provided. [Amendment approved March 16, 1895. Stats. 1889, p. 338. In effect March 19, 1889.] § 1700. On all such accountings the court shall allow the trustee or trustees the proper ex- penses and such compensation for services as the court may adjudge to be just and reasonable, and shall apportion such compensation among the trustees according to the services rendered by them respectively, and may in its discretion fix a yearly compensation for the trustee or trustees to continue as long as the court may judge proper. [Amendment approved March 19, 1889; Stats. 1889, p. G4. In effect March 19, 1895.] § 1701. From a decree settling such account appeal may be taken in the manner provided for an appeal from a decree settling the account of an executor or administrator. The decree of the superior court, if atfirmed on appeal or becoming final Tvithout appeal, shall be conclusive. [Amendment approved March 19, 1889; Stats. 1889. p. 338. In effect March 19, 1889.] Code Civ. Proc— 50. §§ 1702, 1703 PARTITION AND SETTLEMENT. 662 § 1702. Any person named or designated as a trustee in any will wliicli lias been or shall here- after be admitted to probate in this state may, at any time before final distribution, decline to act as such trustee, and an order of court shall there- upon be made accepting such resignation; but the declination of any such person who has qualified as executor shall not be accepted by the court, unless the same shall be in writing and filed in the court in which the administration is pending, and such notice shall be given thereof as is re- quired upon a petition praying for letters of ad- ministration. The court in which the adminis- \ tration is pending shall have power at any time f^ before final distribution to appoint some fit and y proper person to fill any vacancy in the ofiice of trustee under the will, whether resulting from ^ such declination or otherwise; provided, it shall ^ be by law necessary that such vacancy shall be ^ filled; and every person so appointed shall, before \ acting as trustee, give a bond such as is required V by section one thousand three hundred and eigh- (^ ty-eight of this code, of a person to whom letters V^ of administration are directed to issue. Such ap- V pointment may be made upon the written appll- _ cation of any person interested in the trust, and yv shall only be made after notice to all parties in- V terested in the trust, given in the same manner as \ notice is required to be given of the hearing upon ^ a petition for the probate of a will. In each of "^^ the preceding cases the court may order such fur- "^ ther notice as shall seem necessary. In accept- ing any declination under the provisions of this section, the court may make and enforce any or- der which may be necessary for the preservation of the estate. [New section added Marcli 2. 1891; Stats. 180], p. in. to talve effect immediately.] § 1703. The provisions of the next preceding section shall apply in all cases where a final de- 6fi3 PARTITION AND SETTLEMENT. § ITOSVa cree of distribution has not been made; but the jurisdiction given by said section shall not ex- clude, in cases to which it applies, the jurisdiction now possessed by the courts of this State. [New section approved March 2, 1891; Stats. 1891, p. 16. To take effect immediately.] § 1703M>. When any estate is distributed by the judgment or decree of the court, as provided in this chapter, to a minor or incompetent per- son who has no lawful guardian to receive the same, or person authorized to receipt therefor, the portion of said estate consisting of money shall be paid to and deposited with the County Treas- urer of the county in which the estate is being probated, who shall give a receipt for the same, and shall be liable on his official bond therefor; and said receipt shall be deemed and received by the court or judge thereof as a voucher in favor of said executor or administrator, with the same force and effect as if executed by the distributee i thereof. And this section shall be applicable to ' any and all estates now pending in which a final ;^ decree of discharge has not been granted. Said moneys so paid into the county treasury, shall be ^ paid out, upon petition to, and the order of the superior court or judge thereof, to the person en- titled to receive the same. [Approved February 26, 1897; Stats. 1897, ch. 40. In effect immediate- ly.] § 1704 ORDERS, DECREES, ETC. CHAPTER XII. OF ORDERS, DECREES, PROCESS, MINUTES, REC- ORDS, TRIALS, AND APPEALS. § 1704. Orders and decrees to be entered in minutes. § 1705. How often publication to be made. § 1706. Recorded decree or order to impart notice from date of filing. I 1707. Citation, how directed and what to contain. I 1708. Citation, how issued. I 1709. Citation, how served. § 1710. Personal notice given by citation. § 1711. Citation to be served five days before return. § 1712. One description of real estate sought to be sold be- ing published, is sufficient for all purposes. 5 1713. Rules of practice generally. § 1714. New trials and appeals. § 1715. Within what time appeal must be taken. § 1713. Issues joined in Probate Court, how tried and dis- posed of. 5 1717. Court to try case when no jury is demanded. How and what issues to be tried. § 1718. Court to appoint attorney for minor or absent heirs, devisees, legatees, or creditors, when, and what compensation he is to receive. § 1719. Decree relative to homestead, and effect thereof. § 1720. Costs, by whom paid in certain cases. § 1721. Executor, etc., to be removed when committed for contempt. § 1722. Service upon guardian. § 1723. Termination of life estate. § 1704. Orders and decrees made by the court, or a judge thereof, in probate proceedinsrs. need not recite tlie existence of facts, or tlie perform- ance of acts, upon which tlie jurisdiction of the court or judse may depend, but it sliall only be necessary that they contain the matters ordered or adjudged, except as otherAvise provided in this title. All orders and decrees of the court or judge must be entered at length in the minute book of the court. [Amendment approved April 10. 18S(): Amendments 1880. p. 104. In effect April 10, 1880.] 665 ORDERS, DECREES, ETC. §§ 1705-1709 § 1705. AVlieii any publicatiou is ordered, such publication must be made daily, or otherwise as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this title. The court, or a judge thereof, may, hoAv- ever, order a less number of publications during the period. [Amendment approved April 1(3, 1880; Amendments 1880, p. 104. In effect April IG, 1880.] Affidavit of publication: Sees. 2010, 2011. § 1706. When it is provided in this title that any order or decree of the court, or a judge there- of, or a copy thereof, must be recorded in the of- fice of the county recorder, from the time of filing the same for record, notice is imparted to all per- sons of the contents thereof. [Amendment ap- proved April 16, 1880; Amendments 1880, p. 105. In effect April 16, 1880.] § 1707. Citations must be directed to the per- son to be cited, signed by the clerk and issued un- der the seal of the court, and must contain — 1. The title of the proceeding; 2. A brief statement of the nature of the pro- ceeding; 3. A direction that the person cited appear at a time and place specified. § 1708. The citation may be issued by the clerk upon the application of any party without an order of the judge, except in cases in which such order is by the provisions of this title ex- pressly required. § 1709. The citation must be served in the same manner as a summons in a civil action. Service of citation — time for, sec. 1711; same manner as summons in a civil action, see sec. 410 et seq. §§ 1710-1716 ORDERS, DECREES, ETC. 666 § 1710. AVlien personal notice is required, and no mode of giving it is prescribed in tliis title, it must be given by citation. § 1711. When no other time is specially pre- scribed in this title, citations must be served at least five days before the return day thereof. § 1712. When a complete description of the real property of an estate sought to be sold has been given and published in a newspaper, as re- quired in the order to show cause why the sale should not be made, such description need not be published in any subsequent notice of sale or no- tice of a petition for the confirmation thereof; it is sufficient to refer to the description contained in the publication of the first notice, as being proved and on file in the court. § 1713. Except as otherwise provided in this title, the provisions of part two of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in this title. Part II: See ante, sees. 307 et seq. § 1714. The provisions of part two of this Code, relative to new trials and appeals— except in so far as they are inconsistent with the provis- ions of this title— apply to the proceedings men- tioned in this title. See ante, sees. 656 et seq., and sees. 936 et seq. § 1715. The appeal must be taken within six- ty days after the order, decree, or judgment is en- tered. Appeals from superior courts— in probate mat- ters, sec. 963, subd. 3. § 1716. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of article two, chapter two, of this 667 ORDERS, DECREES, ETC. §§ 1717, 1718 title, and in all such proceedings the party affirm- ing is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue joined, as well as for costs, may be entered and enforced by execution or otherwise bj' the court, as in civil actions. [Amendment approved April 16, 1880; Amendments 1880, p. 106. In effect July 16, 1880.] Trial of issues— see sec. 1717. § 1717. If no jury is demanded, the court must try the issues joined. If on written demand a jury is called by either party, and the issues are not sufficiently made up by the written pleadings .on file, the court, on due notice to the opposite ^ party, must settle and frame the issues to be *- tried, and submit the same, together with the evi- *^ dence of each party, to the jury, on which they h! must render a verdict. Either may move for a ^ new trial, upon the same grounds and errors, and N in like manner, as provided in this Code for civil ^^ actions. :- living, competent to have the custody and care of ;;; his education, the guardian appointed shall have >^the same. ^ § 1753. Every guardian appointed shall have the custody and care of the education of the mi- nor, and the care and management of his estate, •>^' until such minor arrives at the age of majority or ;;;• marries, or until the guardian is legally discharg- ^ ed. § 1754, Before the order appointing any person guardian under this chapter takes effect, and be- fore letters issue, the court must require of such person a bond to the minor with sufficient sureties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust accord- ing to law, and the following conditions shall form a part of such bond without being expressed there- in: 1. To make an inventory of all the estate, real and personal, of his ward, that comes to his pos- session or knowledge, and to return the same with- in such time as the court may order: 2. To dispose of and manage the estate accord- ing to law and for the best interest of the ward, and faithfully to discharge liis trust in relation thereto, and also in relation to the care, custody, and education of the ward; §§ 1755, 1756 GUARDIAN AND WARD. 682 3. To render an account on oath of the propert3% estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, with- in three months after his appointment, and at such other times as tlie conrt directs, and at the expira- tion of his trust to settle his accounts with the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and de- liver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto. Up- on filing the bond, duly approved, letters of guard- ianship must issue to the person appointed. In form the letters of guardianship must be substan- tially the same as letters of administration, and the oath of the guardian must be indorsed thereon that he will perform the duties of his office as such guardian according to law. [Amendment, ap- proved April 15, 1880; Amendments 1880, p. 65. In effect April 15, 1880.] Accounts of guardians— rendering: Sees. 1773, K 1774. N a § 1755. When any person is appointed guard- ian of a minor, the court may, with the consent of such person, insert in the order of appointment, >* conditions not otherwise obligatory, providing for ^^-the care, treatment, education, and welfare of the vj minor. The performance of such conditions shall •^ be a part of the duties of the guardian, for the ^ faithful performance of which he and the sureties §\. on his bond shall be responsible. [Amendment In approved April 15, 1880: Amendments 1880, p. 66. g In effect April 15, 1880.] Guardian's bond— liability on: Sec. 1407. Letters of guardiansliip— special, issuable at chambers: Sec. 100. i! § 1756. All letters of guardianship issued, and all guardians' bonds executed under the provis- 683 GUARDIAN AND WARD. §§ 1757-1759 ions of this chapter, with the affidavits aud certifi- cates thereon, must be recorded by the clerlv of the court having jurisdiction of the persons and estates of the wards. [Amendment approved April 15, 1880; Amendments 1880, p. 60. In effect April 15, 1880.] § 1757. If any minor having a father living has property, the income of which is sufficient for his maintenance and education in a manner more ex- pensive than his father can reasonably afford, re- gard being had to the situation of the father's family and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own propert3^ in whole or in part, as judged reasonable, and must be directed by the court; and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. [Amendment approved April 15, 1880; Amend- ments 1880, p. 66. In effect April 15, 1880.] § 1758. Every testamentary guardian must give bond and qualify, and has the same powers ^. and must perform the same duties with regard to -the person and estate of his ward as guardians ap- ^ pointed by the court, except so far as their powers Xand duties are legally modified, enlarged, or v>ehanged by the will by Avhich such guardian was '^ippointed. [Amendment approved April 15, 1880: ;;>Amendments 1880, p. 67. In effect April 15, 1880.] 'O Testamentary guardian— bond of: See sec. 1754. § 1759. Nothing contained in this chapter af- fects or impairs the power of any court to appoint a guardian to defend the interests of any minor in- terested in any suit or matter pendiug therein. rjuardian ad litem: Sees. 372, 373, 1722. 1769. § 1763 GUARDIAN AND WARD. 684 ARTICLE II. GUARDIANS OF INSANE AND INCOMPETENT PER- SONS. § 1763. Guardians of insane and other incompetent persons. § 1764. Appointment by probate judge after hearing. § 1765. Powers and duties of such guardians. § 1766. Petition for restoration to capacity. § 1767. Definition of incompetent. § 1763. When it is represented to the superior court, or a judge thereof, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to man- age his property, such court or judge must cause a notice to be given to the supposed insane or in- competent person of the time and place of hear- ing the case, not less than five days before the time so appointed; and such person, if able to at- tend, must be produced on the hearing. [Amend- ment approved April 15, 1880; Amendments 1880, p. 67. In effect April 15, 1880.] Insane person: Homestead of, see Stats. 1874, p. 582. Guardian ad litem— of insane or incompetent person, sees. 372, 373, 1722. Lunatic. — A person of unsound mind may be placed in an asylum for such persons, upon the or- der of the superior court of the county in which he resides, as follows: 1. The court must be satis- fied, upon examination in open court and in the presence of such person, from the testimony of two reputable physicians, that such person is of unsound mind, and unfit to be at large; 2. After the order is granted, the person alleged to be of unsound mind, his or her husband or wife, or rel- ative to the third degree, or any citizen, may turn and appraisement thereof that are herein pro- vided in relation to the first inventory and return. [Amendment, a]:>proved April 15, 1880; Amend- ments 1880, p. 68. In effect April 15, 1880.] Where joint guardians: Sec. 1775. Appraisers— generally: Sec. 1444. May be appointed at chambers: Sec. 166. ' § 1774. The guardian must, upon the expiration \r of a year from the time of his appointment, and as ^ often thereafter as he may be required, present his ^ account to the court for settlement and allow- ^' ance. [Amendment, approved April 15, 1880; s^ Amendments 1880, p. 68. In effect April 15, 1880.] jy Accounts of guardian: Sec. 1773. §§ 1775, 1777 GUARDIAN AND WARD 690 § 1775. A^ iieu nu account is rendered by two or more joint iiiiardians, the court may, in its dis- cretion, allow the same upon the oath of any of them. [Amendment, approved April 15, 1880; Amendments 188U, p. 68. In effect April 15, 1880.] § 1776. Every guardian must be allowed the amount of his reasonable expenses incurred in the execution of his trust, and he must also have such compensation for his services as the court in which his accounts are settled deems just and rea- sonable. Expenses incurred— advances made: Sec. 1771. ARTICLE lA^ THE SALE OF PROPERTY AND DISPOSITION OF THE PROCEEDS. § 1777. May sell property in certain cases. § 1778. Sale of real estate to be made upon order of court. § 1779. Application of proceeds of sales. § 1780. Investment of proceeds of sales. § 1781. Order for sale, how obtained. § 1782. Notice to next of kin, how given. § 1783. Copy of order to be served, published, or consent filed. § 1784. Hearing of application. § 1785. Who may be examined on such hearing. § 1786. Costs to be awarded, to whom. § 1787. Order of sale, to specify what. § 1788. Bond before selling. § 1789. All proceedings for sales of property by guardians to conform to chapter seven of this title. § 1790. Limit of order of sale. § 1791. Conditions of sales of real estate of minor heirs. Bond and mortgage to be given for deferred pay- ments. § 1792. Court may order the investment of money of the ward. § 1777. When the income of an estate under guardianship is insufficient to maintain the ward and liis familv, or to maintain and educate the 691 GUARDIAN AND WARD. §§ 1778-1781 ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order therefor. Power of guardian— to sell property: Sec. 1768. § 1778. When it appears to the satisfaction of the court, upon the petition of the guardian, that for the benefit of his ward his real estate, or some part thereof, should be sold, and the proceeds thereof put out at interest, or invested in some productive stoclv, or in the improvement or secur- ity of any other real estate of the ward, his guard- ian may sell the same for such purpose, upon ob- taining an order therefor. Order for sale of property: Sec. 1768. § 1779. If the estate is sold for the purposes mentioned in this article, the guardian must apply the proceeds of the sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his pow- er, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward. § 1780. If the estate is sold for the purpose of putting out or investing the proceeds, the guard- ian must malvc the investment according to his best judgment, or in pursuance of any order that may be made by the court. [Amendment, ap- proved April 15, 1880; Amendments 1880, p. 68. In effect April 15, 1880.] § 1781. To obtain an order for such sale, the guardian must present to the court in which he was appointed guardian a verified petition tliere- for, setting forth the condition of the estate of his ward, and the facts and circumstances on which §§ 1782-1784 GUARDIAN AND WARD. 692 the petition is founded, tending to show the nec- essity or expediency of a sale. [Amendment, ap- proved April 15, 1880; Amendments 1880, p. 69. In effect April 15, 1880.] § 1782. If it appear to the court, or a judge thereof, from the petition, that it is necessary or would be beneficial to the ward that the real es- tate, or some part of it, should be sold, or that the real and personal estate should be sold, the court must thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before the court, at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the sale of such estate. If it appear that it is necessary or would be beneficial to the ward to sell the personal estate, or some part of it, the court must order the sale to be made. [Amendment, approved April 15, 1880; Amend- ments 1880, p. 69. In effect xYpril 15, 1880.] § 1783. A copy of the order must be personal- ly served on the next of kin of the ward, and on all persons interested in the estate, at least four- teen days before the hearing of the petition, or must be published at least once a week for three successive weeks in a newspaper printed in the county, or if there be none printed in the county, then in such newspaper as may be specified by the court in the order. If written consent to making the order of sale is subscribed by all persons in- terested therein, and the next of kin. notice need not be served or published. [Amendment, ap- proved April 15, 1880; Amendments 1880, p. 69. In effect April 15. 1880.] Notice: Compare sec. 15.39. § 1784. The court, at the time and place ap- pointed in the order, or such other time to which 693 GUARDIAN AND WARD. §§ 1785-1788 the bearing is postponed, upon proof of the service or publication of the order, must hear and examine the proofs and allegations of the petitioner, and of the next of l^in, and of all other persons interested in the estate who oppose the application. [Amend- ment, approved April 15. 1880; Amendments 1880, p. G9. In effect April 15, 1880.] Compare: Sec. 1540. § 1785. On the hearing, the guardian may be examined on oath, and witnesses may be produced and examined by either party, and process to com- pel their attendance and testimony may be issued by the court, in the same manner and with lilie ef- fect as in other cases provided for in this title. [Amendment, approved April 15, 1880; Amend- ments 1880, p. 69. In effect April 15, 1880.] Compelling attendance and testimony of wit- nesses: Sees. 1305, 1985 et seq. § 1786. If any person appears and objects to the granting of any order prayed for under the provisions of this article, and it appear to the court that either the petition or the objection thereto is sustained, the court may, in granting or refusing the order, award costs to the party prevailing, and enforce the payment thereof. § 1787. If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specifying therein the causes or reasons why the sale is ne- cessary or beneficial, and may, if the same has been been prayed for in the petition, order such sale to be made either at public or private sale. § 1788. Every guardian authorized to sell real estate must, before the sale, give bond to the ward, with sufficient surety, to be approved by the court, or a judge thereof, with condition to sell §§ 1789-1791 GUARDIAN AND WARD. 694 the same in the manner, and to acconnt for the proceeds of the sale as provided for in this chap- ter, and chapter seven of this title. [Amendment approved April 15, 1880; Amendments 1880, p. 69. In effect xVpril 15, 1880.] Bond on sale of realty: Sec. 1389. § 1789. All the proceedings under petition of guardians for sales of property of their wards, giving- notice, and the hearing of such petitions, granting or refusing the order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale, and application for confirmation thereof, notice and hearing of such application, making orders rejecting or con- firming sales and reports of sales, ordering and making conveyances of property sold, account- ing and the settlement of accounts, must be had and made as required by the provisions of this ti- tle concerning estates of decedents, unless other- wise specially provided in this chapter. Settlement of accounts, of guardian of infant af- ter letters revoked: Sec. 1029. § 1790. No order of sale, granted in pursuance of this article, continues, in force more than one year after granting the same, without a sale being had. § 1791. All sales of real estate of wards must be for cash, or for part cash and part deferred payments, the credit in no case to exceed three years from date of sale, as in the discretion of the court is most beneficial to the ward. Guardians making sales must demand and receive from the purchasers, in case of deferred payments, notes, and a mortgage on the real estate sold, with such additional security as the court deems necessary and sufficient to secure the prompt payment of the amounts so deferred, and the interest thereon. [Amendment approved April 15, 3880: Amend- ments 1880, p. 70. In effect April 15, 1880.] 695 GUARDIAN AND WARD. §§ 1792, 1793 § 1792. The court, ou the application of a guardian, or any person interested in the estate of any ward, after such notice to persons interested therein as the court shall direct, may authorize and require the guardian to invest the proceeds of sales and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein, and the court may mal^e such other orders and give such directions as are needful for the manage- ment, investment, and disposition of the estate and effects, as circumstances require. [Amend- ment approved April 15, 1880; Amendments 1880, p. 70. In effect April 15, 1880.] ARTICLE V. NONRESIDENT GUARDIANS AND WARD. § 1793. Guardians of nonresident persons. § 1794. Powers and duties of guardians appointed under pre- ceding section. § 1795. Such guardians to give bonds. 5 179fi. To wtiat guardianship shall extend. § 1797. Removal of nonresident ward's property. § 1798. Proceedings on such removal. § 1799. Discharge of person in possession. § 1793. When a person liable to be put under guardianship, according to the provisions of this chapter, resides without this State and has estate ^therein, any friend of sucli person, or any one in- ^ terested in his estate, in expectancy or otherwise, r may apply to the Superior Court of any county J in which there is any estate of such absent person, ^ for the appointment of a guardian, and if, after 1^ notice given to all interested, in such manner as ^ such court orders by publication or otherwise, and ^ a full hearing and examination. It appears proper, ^ a guardian for such absent person may be ap- pointed. [Amendment approved April 15, 1880; Amendments 1880, p. 70. In effect April 15, 1880.] §§ 1794-1797 GUARDIAN AND WARD. 696 Foreign guardian: Sec. 1913. Guardian, appearance by, etc.: Sees. 1722, 372. Judge may appoint guardians and issue letters of guardianship at chambers: Sec. 167. § 1794, Every guardian, appointed under the preceding section, has the same powers and per- forms tlie same duties, witli respect to the estate of the ward found within this State, and with re- spect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. § 1795. Every guardian must give bond to the ward, in the manner and with the lilce conditions as hereinbefore provided for other guardians, ex- cept that the provisions respecting the inventory, the disposal of the estate and effects, and the ac- count to be rendered by the guardian, must be confined to such estate and effects as come to his hands in this State. Bond, inventory, account, etc.: Sec. 1754. § 1796. The guardianship which is first lawful- ly granted of any person residing without this State extends to all the estate of the ward within this State, and excludes the jurisdiction of the court of every other county. [Amendment ap- proved April 15, 1880; Amendments 1880, p. 70. In effect April 15, 1880.] § 1797. When the guardian and ward are both nonresidents, and the ward is entitled to property in this State, which may be removed to another State or foreign country without conflict with any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the State or foreign country of the residence of the ward, upon the application of the guardian to the Superior Court of the county in 697 GUARDIAN AND WARD. §§ 1798, 1799 which the estate of the ward, or the principal part thereof, is situated. [Amendment approved April 15, 1880; Amendments 1880, p. 70. In effect April 15, 1880.] § 1798. The application must be made upon ten days' notice to the resident executor, admin- istrator, or guardian, if there be such, and upon such application the nonresident guardian must produce and file a certificate, under the hand of the clerli and seal of the court, from which his appointment was derived, shOAving: 1. A transcript of the record of his appointment; 2. Tliat he has entered upon the discharge of his duties; 3. That he is entitled, by the laws of the State of his appointment, to the possession of the estate of the ward; or, must produce and file a certifi- cate, under the hand and seal of the clerk of the court having jurisdiction in the country of his residence, of the estates of persons under guard- ianship, or of the highest court of such country, attested by a minister, consul, or vice-consul of the United States, resident in such country, that, by the laws of such country, the applicant is entitled to the custody of the estate of his ward, without the appointment of any court. Upon such appli- cation, unless good cause to the contrary is shown, the court must malce an order granting to such guardian leave to tal^e and remove the property of his ward to the State or place of his residence, which is authority to him to sue for and receive the same in his own name, for the use and benefit of his ward. [Amendment approved April 15, 1880; Amendments 1880, p. 71. In effect April 15, 1880.] § 1799. Such order is a discharge of the execu- tor, administrator, local guardian, or other person in whose possession the property may be at the Code Civ. Proc— 59. § 1800 GUARDIAN AND WARD. 698 time the order is made, on filing with the clerk of the court a receipt therefor of a foreign guard- ian of such absent ward, and transmitting a duplicate receipt, or a certified copy of such re- ceipt, to the court from which such nonresident guardian received his appointment. [Amendment approved :March 8, 1895; Stats. 1895, p. 28. In ef- fect in sixtj^ days.] ARTICLE VI. GENERAL AND MISCELLANEOUS PROVISIONS. § 1800. Examination of persons suspected of defrauding wards or concealing property. § 1801. Removal and resignation of guardian, and surrender of estate. § 1802. Guardianship, how terminated. § 1803. New bond, when required. § 1804. Guardian's bond to be filed. Action on. § 1805. Limitation of actions on guardian's bond. § 1806. Limitation of actions for the recovery of property sold. § 1807. More than one guardian of a person may be ap- pointed. § 1808. Power of probate judge in chambers. § 1809. Provisions of section ten hundred and fifty-seven ap- ply to guardians. § 1800. Upon complaint made to him by any guardian, ward, creditor, or other person interest- ed in the estate or having a prospective interest therein as heir or otherwise, against any one sus- pected of having concealed, embezzled, or convey- ed away any of the money, goods, or efiCects, or an instrument in writing belonging to the ward or to his estate, the Superior Court, or a judge thereof, may cite such suspected person to appear before such court, and may examine and proceed with him on such charge in the manner provided in this title with respect to persons suspected of and charged with concealing or embezzling the effects of a decedent, r Amendment approved 699 GUARDIAN AND WARD. §§ 1801-1803 April 15, 1880; ADienclmeiits 1880, p. 71. In effect April 15, 1880.] Embezzlemeut of property of estate: Sec. 1458 et seq. § 1801. When a guardian, apointed eitlier by the testator or a court, becomes insane or other- wise incapable of discharging his trust or unsuit- able therefor, or has wasted or mismanaged the estate, or failed for thirty days to render an ac- count or malie a return, the Superior Court may, upon such notice to the guardian as the court may require, remove him and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. Every guardian may resign when it appears proper to allow the same; and upon the resignation or removal of a guard- ian, as herein provided, the court may appoint another in the place of the guardian who resigned or was removed. | Amendment approved April 15, 1880; Amendments 1880, p. 71. In effect April 15, 1880.] § 1802. The marriage of a minor ward termin- ates the guardianship of the person of such ward, but not the estate; and the guardian of an insane or other person may be discharged by the court, when it appears, on the application of the ward or oirierwise. that the guardianship is no longer necessary. [Amendment approved April 15, 1880; Amendments 1880, p. 72. In effect April 15, 1880.] § 1803. The court may require a new bond to be given by a guardian whenever such court deems it necessary, and may discliarge the exist- ing sureties from further liability, after due notice given as such court may direct, when it shall ap- pear that no injury can result therefrom to those interested in the estate. [Amendment approved April 15, 1880; Amendments 1880, p. 72. In effect April 15, 1880.] §§ 1804-1808 GUARDIAN AND WARD. 700 § 1804. Everj^ bond given by a guardian must be filed and preserved in tlie oflice of the clerk of the Superior Court of the county, and in case of a breach of a condition thereof, may be prosecuted for the use and benefit of the ward, or of any person interested in the estate. [Amendment ap- proved April 15, 1880; Amendments 1880, p. 71. In effect April 15, 1880.] Suit on bond, party beneficially interested: Sec. 367. § 1805. No action can be maintained against the sureties on any bond given by a guardian, un- less it be commenced within three years from the discharge or removal of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is re- moved. § 1806. No action for the recovery of any estate sold by a guardian can be maintained by the ward, or by any person claiming under him, unless it is commenced within three years next after the ter- mination of the guardianship, or, when a legal disability to sue exists by reason of minority or otherwise, at the time when the cause of action accrues, within three years next after the removal thereof. § 1807. The court, in its discretion, whenever necessary, may appoint more than one guardian of any person subject to guardianship, who must give bond and be governed and liable in all re- spects as a sole guardian. § 1808. Any order appointing a guardian, must be entered as and become a decree of the court. The provisions of this title relative to the estates of decedents, so far as they relate to the practice 701 SOLE TRADERS. §§ 1809, 1812 in the Superior Court, apply to proceedings un- der tills chapter. [Amendment approved April 15, 1880; Amendments 1880, p. 72. In effect April 15, 1880.] Chambers, power at: Sees. IGO, 17G. y{|H^§ 1809. The provisions of section ten hundred <: and fifty-seven are hereby declared to apply to > guardians appointed by the court, and to the bonds talien or to be taken from such guardians, and to the sureties on such bonds. TITLE XII. OF SOLE TRADERS. § 1811. Who may become sole traders. § 1812. Notice, how given and what to contain. § 1813. Petition, what to contain when filed. § 1814. May have five hundred dollars of community or hus- band's property. § 1815. Who may oppose it, and how. 5 1816. Trial or hearing. § 1817. Decree, what it must be. § 1818. Oath, copy of order to be recorded. § 1819. Rights and liabilities of sole traders. § 1820. Sole trader must maintain her children. § 1821. Husband of sole trader not liable for debts. § 1811. A married woman may become a sole trader by the judgment of the Superior Court of the county in w^hich she has resided for six months next preceding the application, f Amendment ap- proved February 26, 1881; Stats. 1881. p. 10. In effect February 26, 1881.] § 1812. A person intending to malce application to become a sole trader must publish notice of such intention in a newspaper published in the county, or, if none, then in a newspaper publish- ed in an adjoining county, once a weelc for four successive weeks. The notice must specify the §§ 1813-181 G SOLE TRADERS. 702 day upon wliicli application will be made, the nature and place of the business proposed to be conducted by her, and the name of her husband. [Amendment approved February 26, 1881; Stats. 1881, p. 10. In effect February 26, 1881.] Term, abolition of terms: Sec. 73. § 1813. Ten days prior to the day named in the notice, the applicant must file a verified peti- tion setting forth: 1. That the application is made in good faith, to enable the applicant to support herself, or her- self and others dependent upon her, giving their names and relation; 2. The fact of insufficient support from her hus- band, and the causes thereof, if known; 3. Any other grounds of application which are good causes for a divorce, with the reason why a divorce is not sought; and 4. The nature of the business proposed to be conducted, and the capital to be invested therein, if any, and the sources from which it is derived. § 1814. The applicant may invest in the busi- ness proposed to be conducted, a sum derived from the community property or of the separate prop- erty of the husband, not exceeding five hundred dollars. § 1815. Any creditor of the husband may op- pose the application, by filing in the court (prior to the day named in the notice) a written opposition verified, containing either: 1. A specific denial of the truth of any material allegation of the petition; or setting forth, 2. That the application is made for the purpose of defrauding the opponent; or 3. That the application is made to prevent, or will prevent him from collecting his debt. § 1816. On the day named in the notice, or on 703 SOLE TRADERS. §§ 1817-1819 such other day to which the hearing may be post- poned by the court, the applicant must mali:e proof of publication of the notice hereinbefore required, and the issues of fact joined, if any, must be tried as in other cases; if no issues are joined, the court must hear the proofs of the applicant and find the facts in accordance therewith. § 1817. If the facts found sustain the petition, the court must render judgment authorizing the applicant to carry on in her own name and on her own account the business specified in the no- tice and petition. § 1818. The sole trader must make and file with the clerk of the court an affidavit, in the fol- lowing form: I, A. B., do, in the presence of Almighty God, solemnly swear that this application was made in ■^ good faith, for the purpose of enabling me to sup- ^ port myself (and any dependent, such as husband, <. parent, sister, child, or the like, naming them, if ;:^ any), and not with any view to defraud, delay, or V hinder any creditor or creditors of my husband; ^ and that of the moneys so to be used by me in ^ business, not more than five hundred dollars have ^^ come either directly or indirectlj" from my hus- band. So held me God. A certified copy of the decree, with this oath in- dorsed thereon, must be recorded in the office of the recorder of the county where the business is to be carried on, in a book to be kept for such purpose. § 1819. When the judgment is made and en- tered, and a copy thereof, with the affidavit pro- vided for in section one thousand eight hundred and eighteen, duly recorded, the person therein named is entitled to carry on the business speci- fied, in her own name, and the property, reve- nues, money, and credits so by her invested, and §§ 1S20, 1821 SOLE TRADERS. 704 the profits thereof, belong exclusively to her, and are not liable for any debts of her husband, and she, thereafter, has all the privileges of, and is liable to all legal processes provided for debtors and creditors, and may sue and be sued alone with- out being joined with her husband; provided, how- ever, that she shall not be at liberty to carry on said business in any other county than that nam- ed in the notice provided for in section one thou- sand eight hundred and twelve, until she has re- corded in such other county a copy of said judg- ment and affidavit. [Amendment approved March 16, 1876; Amendments 1875-6, p. 105. In effect March 16, 1876.] Sue and be sued alone: Sec. 370. Husband and wife parties to actions: Sees. 370, 371. § 1820. A married woman who is adjudged a sole trader is responsible and liable for the main- tenance of her minor children. § 1821. The husband of a sole trader is not lia- ble for any debts contracted by her in the course of her sole trader's business, unless contracted up- on his written consent. 705 PROCEEDINGS IN INSOLVENCY. § 1822 TITLE XIII. OP PROCEEDINGS IN INSOLVENCY. V' § 1822. Statutes in relation to, continued in force. the insolvent ^ debtors and protection of creditors," approved May jp 4, 1852, or of tbe acts amendatory thereof, ap- ^ proved respectively :March 12, 1858, April 27, 1860, and April 27, 1803; but such acts are recognized as continuing in force notwithstanding the provi- sions of this Code. Insolvency act: See post, Appendix, p. 817 et seq. ^ § 1822. Nothing in this Code affects any of ,^ provisions of "an act for the relief of insolv '}\Uuy\^'^''i^^^ PAET IV. OF EVIDENCE. General Definitions, §§ 1823-1839. Title I. Of General Principles, §§ 1844-1870. II. Kinds and Degrees of Evidence, §§ 1875- 1978. III. Production of Evidence, §§ 1981-2054. IV. Effect of Evidence, § 2061. V. Rights and Duties of Witnesses, §§ 2064- 2070. VI. Evidence in Particular Cases, and Gen- eral Provisions, §§ 2074-2103. OP EVIDENCE. GENERAL DEFINITIONS AND DIVISIONS. § 1823. Definition of evidence. § 1824. Definition of proof. § 1825. Definition of law of evidence. § 1826. The degree of certainty required to establish facts. § 1827. Four kinds of evidence specified. § 1828. Several degrees of evidence specified. § 1829. Primary evidence defined. § 1830. Secondary evidence defined. § 1831. Direct evidence defined. § 3832. Indirect evidence defined. § 1833. Prima facie evidence defined. § 1834. Partial evidence defined. § 1835. Satisfactory evidence defined. § 1836. Indispensable evidence defined. § 1837. Conclusive evidence defined. § 1838. Cumulative evidence defined. § 1839. Corroborative evidence defined. § 1823. Judicial evidence is the means, sanc- tioned by law, of ascertaining in a judicial pro- ceeding tlie truth respecting a question of fact. 707 EVIDENCE. §§ 1824-1823 Evidence, law of: Sec. 1825; kinds of: Sec. 1827; degrees of: Sec. 1828 et seq; relevancy of: Sees. 1868, 1870; production of: See sec. 1825, subd. 3; value and effect of: See sec. 1825, subd. 5. § 1824. Proof is the effect of evidence, the es- tablishment of a fact by evidence. Proof, degree required: Sec. 1826; order of: Sees. 607, 2042; extent of: Sees. 1867, 1869; limits of: Sees. 1868, 1870; burden of: Sees. 1869, 1981. s § 1825. The law of evidence, which is the sub- ^ ject of this part of the Code, is a collection of gen- ^ eral rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; 5. For determining in certain cases, the value and effect of evidence. Subdivision 2. Presumptions: Sees. 1959, 1961- 1963 and notes. Subdivision 3. Production of evidence: Sees. 1981-2054. Subdivision 4. Exclusion of evidence: Sees. 1867, 1868. Subdivision 5. Value and effect of evidence: Sec. 2061; also see sec. 1828 et seq. § 1826. The law does not require demonstra- tions; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral cer- tainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. Proof: Sec. 1-824. §§ 1827-1831 EVIDENCE. 708 § 1827. There are four kinds of evidence: 1. Tlie knowledge of the court; 2. The testimony of witnesses; 3. Writings; 4. Other material objects presented to the senses. Subdivision 1. Knowledge of the court: Sec. 1875. Subdivision 2. Witnesses: Sees. 1878-1884. Subdivision 3. Writings: Sees. 1887-1951. Subdivision 4. Other material objects: Sec. 1954. § 1828. There are several degrees of evidence: 1. Primary and secondary; 2. Direct and indirect; 3. Prima facie, partial, satisfactory, indispensa- ble, and conclusive. [Amendment approved March 24, 1874; Amendments 1873-4, p. 379. In effect July 1, 1874.] § 1829. Primary evidence is that kind of evi- dence which, under every possible circumstance, affords the greatest certainty of the fact in ques- tion. Thus, a written instrument is itself the best possible evidence of its existence and contents. [Amendment approved March 24, 1874; Amend- ments 1873-4, p. 379. In effect July 1, 1874.] § 1830. Secondary evidence is that which is in- ferior to primary. Thus, a copy of an instrument, or oral evidence of its contents, is secondary evi- dence of the instrument and contents. [Amend- ment approved March 24. 1874: Amendments 1873- 4, p. 379. In effect July 1, 1874.] Contents of a writing, evidence of: Sec. 1855. § 1831. Direct evidence is that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if triie, con- clusively establishes that fact. For example: if the fact in dispute be an agreement, the evidence 709 EVIDENCE. §§ 1832-1835 of a witness who was present, and witnessed the makinj^ of it, is direct. § 1832. Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself con- clusively establish that fact, but which affords an inference or presumption of its existence. For ex- ample: a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred. Indirect evidence: Sees. 1957-1963. § 1833. Prima facie evidence is that which suf- fices for the proof of a particular fact, until con- tradicted and overcome by other evidence. For example: the certificate of a recording officer is prima facie evidence of a record, but it may after- Avard be rejected upon proof that there is no such record. [Amendment approved March 24, 1874; Amendments 1873-4, p. 379. In effect July 1, 1874.] Disputable presumption: Sec. 1963. § 1834. Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received, subject to be rejected as incompetent, unless connected with the fact in dispute by proof of other facts. For exam- ple: on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterward connected with the fact in dispute. Connected with the fact in dispute: Sec. 1868. § 1835. That evidence is deemed satisfactory which ordinarily produces moral certainty or con- viction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated slight evidence. Satisfactorv evidence, to justify verdict: Sec. 2061, subd. 5. CodP Civ. Proc — 60. §§ 1836-1839 EVIDENCE. 710 § 1836. ludispeusable evidence is that without which a particular fact cannot be proved. Indispensable evidence: Sees. 1967-1974. § 1837. Conclusive or unanswerable evidence is that which the law does not permit to be con- tradicted. For example: the record of a court of competent jurisdiction cannot be contradicted by the parties to it. Conclusive evidence: Sees. 1908, 1962, 1978. § 1838. Cumulative evidence is additional evi- dence of the same character to the same point. § 1839. Corroborative evidence is additional evidence of a different character, to the same point. 711 GENERAL PRINCIPLES. § 1844 TITLE I. OF THE GENERAL PRINCIPLES OF EVIDENCE. § 1844. One witness sufficient to prove a fact. § 1845. Testimony confined to personal knowledge. § 1846. Testimony to be in presence of persons affected. § 1847. Witness presumed to speak the truth. § 1848. One person not affected by acts of another. § 1849. Declarations of predecessor in title evidence. § 1850. Declarations which are a part of the transaction. § 1851. Evidence relating to third person. § 1852. Declaration of decedent evidence of pedigree. § 1853. Declaration of decedent evidence against his succes- sor in interest. § 1854. When part of a transaction proved, the whole is ad- missible. § 1855. Contents of writing, how proved. § 1856. An agreement reduced to writing deemed the whole. § 1857. Construction of language relates to place where used. § 1858. Construction of statutes and instruments, general rule. § 1859. The intention of the Legislature or parties. § 1860. The circumstances to be considered. § 1861. Terms to be construed in their general acceptation. § 1862. Written words control those printed in a blank form. § 1863. Persons skilled may testify to decipher characters. § 1834. Of two constructions, which preferred. § 1865. A written instrument construed as understood by parties. § 1866. Construction in favor of natural right preferred. § 1867. Material allegations only to be proved. § 1868. Evidence confined to material allegations. § 1869. Affirmative only to be proved. § 1870. Facts which may be proved on trial. § 1844, The direct evidence of one witness who Is entitled to full credit is sufficient for proof of any fact, except perjury and treason. One witness, witness, definition: Sec. 1878; wit- ness, competency: Sec. 1879 et seq.; two witnesses for lost or destroyed will: Sec. 1339; perjury and treason, more than one witness, sec. 19G8. §§ 1845-1848 GENERAL, PRINCIPLES. 712 § 1845. A witness can testify of tliose facts only which he knows of his own Ivnowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of oth- ers, are admissible. Opinions, inferences, declarations: See sec. 1870. § 1846. A witness can be heard only upon oath or affirmation, and upon a trial he can be heard only in the presence and subject to the examina- tion of all the parties, if they choose to attend and examine. Witness, defined: Sec. 1878. Witnesses, competency of: Sec. 1879 et seq. Oath or affirmation, administration of: Sees. 2093-2097. Examination of witnesses: Sees. 2042-2054, § 1847. A witness is presumed to speak the truth. This presumption, however, may be repell- ed by the manner in Avhich he testifies, by the character of his testimony, or by evidence affect- ing his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. Witness: Sees. 1878 et seq. Presumed to speak the truth: Sec. 1963, subd. 1; evidence of good character: Sec. 2053. Presumption repelled, manner of testifying: Sec. 2061, subd. 2; character of testimony: Sec^ 2061, subd. 3; impeaching credit: Sees. 2049, 2051, 2052; contradictory evidence: Sees. 2049, 2051. Jury exclusive judges of credibility: Sec. 2061. § 1848. The rights of a party cannot be preju- diced by the declaration, act, or omission of an- other, except by virtue of a particular relation be- tween them; therefore, proceedings against one cannot affect another. [Amendment approved March 24, 1874; Amendments 1873-4, p. 380. In effect July 1, 1874.] 713 GENERAL PRINCIPLES.^ §§ 1849-1853 Books, entries in: Sec. 1946. Declaration, etc., of another, when admissible: Sees. 1849-1853; partner, agent, etc.: Sec. 1870, subd. 5. § 1849. Where, however, one derives title to real property' from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. § 1850. AVhere, also, the declaration, act, or omission forms part of a transaction, which is it- self the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction. Declarations before others: Sec. 1870, subd. 3; declaration: Sec. 1870, subd. 4; writing evidence, to explain: Sec. 1860. § 1851. And where the question in dispute be- tween the parties is the obligation or duty of a third person, whatever would be the evidence for or against such person is prima facie evidence be- tween the parties. [Amendment approved March 24, 1874; Amendments 1873-4, p. 380. In effect July 1, 1874.] § 1852. The declaration, act, or omission of a member of a family, who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. Declaration of decedent: Sec. 1870, subd. 4. Common reputation on questions of pedigree, etc.: Sec. 1870, subd. 11. § 1853. The declaration, act, or omission of a decedent, having sufficient knowledge of the sub- ject, against his pecuniary interest, is also admis- sible as evidence to that extent against his suc- cessor in interest. §§ 1854, 1855 'GENERAL PRINCIPLES. 714 Decedent's declaration against interest: Sec. 1870, siibd. 4; entries and other writings: Sec. 1946. §, 1854. When part of an act, declaration, con- versation, or writing is given in evidence by one party, the whole on the same subject may be in- quired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it under- stood, may also be given in evidence. Refreshing memory, witness. — Opposite party has a right to see the document: Sec. 2047. Cross-examination: Sec. 2048. § 1855. There can be no evidence of the con- tents of a writing, other than the writing itself, except in the following cases: 1. Where the original has been lost or destroy- ed; in which case proof of the loss or destruction must first be made; 2. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice; 3. When the original is a record or other docu- ment in the custody of a public officer; 4. When the original has been recorded, and a certified copy of the record is made evidence by this Code or other statute; 5. When the original consists of numerous ac- counts or other documents, which cannot be ex- amined in court without great loss of time, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivisions three and four, a copy of the original or of the record must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents. [Amendment approved ]March 24, 1874; Amendments 1873-4, p, 380, In effect July 1, 1874.] 715 GENERAL PRINCIPLES. § 1856 Coutents of writing, showing permissible: Sees. 1937, 1909. Original in possession of opponent, notice to pro- duce: Sees. 1938, 1939. Public writings generally: Sees. 1892-1926. Atlidavits: Sees. 2U09 et seq. Subdivision 4. Certified copies of records: See sees. 1919 et seq. § 1856. AVhen the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other chan the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writ- ing is put in issue by the pleadings; 2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as delined in section eighteen hundred and sixty, or to explain an extrinsic ambiguity, or to estab- lish illegality or fraud. The term agreement in- cludes deeds and wills, as well as contracts be- tween parties. Writing supersedes oral negotiations: Civ. Code, sec. 1625; parol evidence to vary or contradict written agreement: Civ. Code, sec. 1639; fraud, to establish: See Civ. Code, sec. 1640; mistake or im- perfection, to correct: Sec. 1856, subd. 1, supra; Civ. Code, see. 1640; revision and reformation of contracts for fraud or mistake: Civ. Code, sees. 3399-3402; surrounding circumstances to show: Sec. 1860; where validity of agreement controvert- ed: Sec. 1856, subd. 2, supra. Absolute conveyance.— Mortgage: Sec. 744. liecitals in document: Sec. 1962, subd. 2. §§ 1857-1859 GENERAL PRINCIPLES. 716 Usage, etc.: Sec. 1870, siibd. 12. Conveyaiices of real property: Sec. 2077. Date: Sec. 19G2, subcl. 2. Consideration: Sec. 1962, subd. 2. Alterations and erasures: Sec. 1982. § 1857. Tlie language of a writing is to be in- terpreted according to the meaning it bears in the place of its execution, unless the parties have ref- ence to a different place. Interpretation of contract, lex loci: Civ. Code, sec. 1646. § 1858. In the construction of a statute or in- strument, the office of the judge is simply to ascer- tain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Construction, generally: Sec. 1859; giving effect to all: Civ. Code, sees. 1641, 3541. § 1859. In a construction of a statute, the intention of the Legislature, and in the construc- tion of the instrument, the intention of the par- ties, is to be pursued if possible; and when a gen- eral and particular provision are inconsistent, the latter is paramount to the former. So a particular Intent will control a general one, that is inconsist- ent with it. Words giving joint authority give authority to a majority unless otherwise expressed in the "act" giving the authority: Sec. 15, ante. Construction of tliis Code: Sees. 4-18, ante. Directory statutes: Sees. 225, 632. Repeals.— Conflict between statutes or parts of same statutes, retroactive operation, etc.: Sec. 18. Time, computation of, construction of statutes directing- Sec. 12. 717 GENERAL PRINCIPLES. §§ 1860-1864 Mistake: Sec. 185G; estoppel: Sec. 19G2; usage: Sec. 1870, subd. 12; deeds as to real property: Sec. 2077. § 1860. For the proper construction of an in- strument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. Surrounding circumstances may be shown: Civ. Code, sec. 1047; usage: Sec. 1S70. subd. 12; descrip- tive part of conveyance: Sec. 2077. § 1861. The terms of a writing are presumed to have been used in their primary and general ac- ceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise pe- culiar signification, and were so used and under- stood in the particular instance, in which case the agreement must be construed accordingly. Signification of terms: Compare Civ. Code, sees. 1G44, 1645. See, also, sec. 1870, subd. 12, post. § 1862. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. Compare Civ. Code, sec. 1651. § 1863. When the characters in which an in- strument is written are difficult to be deciphered, or the language of the instrument is not under- stood by the court, the evidence of persons skilled in deciphering the characters, or Avho understand the language, is admissible to declare the charac- ters or the meaning of the language. See sec. 1870, subds. 9, 10. § 1864. When the terms of an agreement have been intended in a different sense by the different §§ 1865-1868 GENERAL PRINCIPLES. 718 parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made. Compare Civ. Code, sees. 1649, 1654. § 1865. A written notice, as well as every other writing, is to be construed according to the ordi- nary acceptation of its terms. Thus, a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly presented for acceptance or payment, and the same refused, and that the holder looks for payment to the person to whom the notice is given. Ordinary acceptation: See sec. 1861. Compare Civ. Code, sec. 1644; notice of dishonor: Civ. Code, sec. 3143. § 1866. When a statute or instrument is equal- ly susceptible of two interpretations, one in favor of natural right and the other against it, the for- mer is to be adopted. § 1867. None but a material allegation need be proved. Complaint: See sec. 426; material allegation, de- fined: Sec. 463; not controverted: Sec. 462. Material evidence: See sec. 1868. § 1868. Evidence must correspond with the substance of the material allegations, and be rele- vant to the question in dispute. Collateral ques- tions must therefore be avoided. It is, however, within the discretion of tlie court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is es- sential to its proper determination, or when it af- fects the credibility of a witness. 719 GENERAL PRINCIPLES. §§ 1869, 1870 Yariauce, sees. 4G9-471. Relevant evidence.— Objection or exception to evidence: Sec. C4G. Collateral fact, connecting: Sec. 1870; credibility of witness: Sees. 1847, 1870, subd. 16. Material: See sec. 18G7. § 1869. Each party must prove his own affirm- ative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the exist- ence of a document, the custody of which be- longs to the opposite party. Burden of proof: See. 1981. § 1870. In conformity with the preceding pro- visions, evidence may be given upon a trial of the following facts: 1. The precise fact in dispute; 2. The act, declaration, or omission of a party, as evidence against such party; 3. An act or declaration of another, in the pres- t;; ence and within the observation of a party, and ^ his conduct in relation thereto; % 4. The act or declaration, verbal or written, of V a deceased person in respect to the relationship, x; birth, marriage, or death of any person related by o blood or marriage to such deceased person; the ^ act or declaration of a deceased person done or \^ made against his interest in respect to his real \ property; and also in criminal actions, the act or ^ declaration of a dying person, made under a sense of impending death, respecting the cause of his death; 5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agen- cy, and during its existence. The same rule ap- § 1870 GENERAL PRINCIPLES. 720 plies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party; 6. After proof of a conspiracy, the act or dec- laration of a conspirator against his coconspira- tor, and relating to the conspiracy; 7. The act, declaration, or omission forming part of a transaction, as explained in section eighteen hundred and fifty; 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter; 9. The opinion of a witness respecting the iden- tity or handwriting of a person, when he has knowledge of the person or handwriting; his opin- ion on a question of science, art, or trade, when he is skilled therein; 10. The opinion of a subscribing witness to a writing, the validity- of which is in dispute, respect- ing the mental sanity of the signer; and the opin- ion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opin- ion being given; 11. Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary; 12. Usage, to explain the true character of an act, contract, or instrument, where such true char- acter is not otherwise plain; but usage is never admissible, except as an instrument of interpreta- tion; 13. Monuments and inscriptions in public places, as evidence of common reputation; and entries in family bibles, or other family books or charts; en- gravings on rings, family portraits, and the like, as evidence of pedigree; 14. The contents of a writing, when oral evi- dence thereof is admissible; 15. Any other facts from which the facts in is- sue are presumed or are logically inferable; 721 KNOWLEDGE OF THE COURT. § 1875 IG. Such facts as serve to show the credibility of a witness, as explained in section eighteen hun- dred and forty-seven. Offer to compromise: Sec. 2078; confession in di- vorce suit: Sec. 2071). Subd. 7. Kes gestae: See sec. 1850, ante. TITLE II. OF THE KINDS AND DEGREP:S OF EVIDENCE. Chapter I. Knowledge of the court, § 1875. II. Witnesses, §§ 1878-1884. III. Writings, §§ 1887-1951. IV. Material objects presented to the senses, other than writings, § 1954. V. Indirect evidence, §§ 1957-1963. VI. Indispensable evidence, §§ 19G7-1974. VII. Conclusive and unanswerable evi- dence, § 1978. CHAPTER I. KNOWLEDGE OF THE COURT. § 1875. Certain facts of general notoriety assumed to be true. Specification of such facts. § 1875. Courts take judicial notice of the fol- lowing facts: 1. The true signification of all English words and phrases, and of all legal expressions: 2. Whatever is established by law; 3. Public and private official acts of the legisla- tive, executive, and judicial departments of this State and of the United States; 4. The seals of all the courts of this State and of the United States; Code. Civ. Proc— 61. §§ 1878. 1879 WITNESSES. 722 5. The accession to office and the official signa- tures and seals of office of the principal officers of government in the legislative, executive, and judi- cial departments of this State and of the United States; 6. The existence, title, national flag, and seal of every State or sovereign recognized by the execu- tive power of the United States; 7. The seals of courts of admiralty and mari- time jurisdiction, and of notaries public; 8. The laws of nature, the measure of time, and the geographical divisions and political history of the world. In all these cases the court may resort for its aid to appropriate books or documents of refer- ence. CHAPTER II. WITNESSES. 1 1878. Witnesses defined. :§ 1879. All persons capable of perceptions and communica- tion may be witnesses. § 1880. Persons who cannot testify. * § 1881. Persons in certain relations to parties prohibited. § 1882. \.aen privileged persons must testify. § 1883. Jludge or a juror may be witness. § 1884. \> iien an interpreter to be sworn. § 1878. A witness is a person whose declara- tion under oath is received as evidence for any purpose, whether such decln ration be made on oral examination or by deposition or affidavit. Compare: Sec. 2002. Ornl examination: Sec. 1846; general rules of: Sec. 20^2 et seq. Deposition: Sees. 2019-2038. Affidavit: Sees. 2009-2015. § 1879. All persons, without exception, other- wise than is specified in the next two sections, who, having organs of sense, can perceive, and, 723 WITNESSES. §§ 1880, 1881 perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither par- ties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor per- sons on account of their opinions on matter^ of religious belief; although, in every case, the cred- ibility of the witness may be drawn in question, as provided in section eighteen hundred and forty- seven. Persons incompetent— to witnesses: Sec. 1880. § 1880. The following persons cannot be wit- nesses: 1. Those who are of unsound mind at the time of their production for examination; 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating mem truly; 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such de- ceased person. [Amendment approved April 16, 1880; Amendments 1880, p. 112. In effect April 16, 1880.] § 1881. There are particular relations in which it is the policy of the law to encourage con- lidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: 1. A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other dur- §§ 1882-188 4 WITNESSES. 724 ing the marriage; but this exception does not ap- ply to a civil action or proceeding by one against the other, nor to a criminal action or piroceeding for a crime committed by one against the other; 2. An attorney cannot, without the consent of his 'client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employ- ment; nor can an attorney's secretary, stenograph- er, or clerli be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity; 3. A clergyman or priest cannot, without the consent of the person malting the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs; 4. A licensed physician or surgeon cannot, with- out the consent of his patient, be examined in a civil action as to any information acquired in at- tending the patient, which was necessary to en- able him to prescribe or act for the patient; 5. A public officer cannot be examined as to communications made to him in official confi- dence, when the public interests would suffer by the disclosure. [Amendment approved March 23, 1898; Stats. 1893, p. 301. In effect immediately.] § 1882. Repealed. [Amendments 1875-6, 105. In effect February 28, 1876.] § 1883. The judge himself or any juror may be called as a witness by either party; but in such case it is in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury. § 1884. When a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person, 725 WRITINGS. §§ 1187-1889 •a resident of the proper county, may be summon- ed by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any per- son so summoned, who fails to attend at the time and place named in the summons, is guilty of a contempt. Subpoena: Sec. 1985, et seq. Contempt: Sees. 1200, 1219. Acts authorizing appointment of Italian inter- preter: See post, Appendix, p. 856. CHAPTER III. WRITINGS. \ Article 1. Writings in General. II. Public Writings. III. Private Writings. ARTICLE I. WRITINGS IN GENERAL. § 1887. Writings, public and private. § 1888. Public writings defined. § 18S9. All others private. § 1887. Writings are of two Ivinds: 1. Public; and, 2. Private. § 1888. Public writings are: 1. The written acts or records of the acts of the sovereign authority, of otticial bodies and tribun- als, and of public officers, legislative, judicial, and executive, whether of this State, of the United States, of a sister State, or of a foreign country; 2. Public records, kept in this State, of private writings. § 1889. All other Mritiugs are private. § 1892 WRITIiNGS. 720 ARTICLE II. PUBLIC WRITINGS. § 1892. Every citizen entitled to inspect and copy public writings. § 1S93. Public oflBcers bound to give copies. § 1894. Four kinds of public writings. § 1895. Laws, written or unwritten. § 1896. Written laws defined. § 1897. Constitution and statutes. § 1898. Public and private statutes defined. § 1899. Unwritten law defined. § 1900, Books containing laws presumud to be correct. § 1901. Public seal authenticates a law or document. § 1902. Other evidence of laws of other States. § 1903. Recitals in statutes, how far evidence. § 1904. Judicial record defined. § 1905. Record, how authenticated as evidence, § 1906. Record of a foreign country, how authenticated. § 1907. Oral evidence of a foreign record. § 1908. Effect of a judgment upon rights in various cases. § 1909. Eifect of other judicial orders, when conclusive, § 1910. Where parties are to be deemed the same. § 1911. What deemed adjudged in a judgment. § 1912. Where sureties bound, principal is also. § 1913. Record of another State, its effect. § 1914. Record of a court of admiralty. § 1915. Effect of a foreign judgment. § 1916. Manner of impeaching a record. § 1917. The jurisdiction necessary in a judgment. § 1918. Manner of proving other official documents. •§ 1919. Public record of private writing evidence. § 1920. Entries in official books primary evidence. § 1921. Justice's judgment in other States, how proved. § 1922, Same. § 1923. Contents of other official certificates. § 1924. Provi-Ions in relation to States apply to Territories. § 1925. Certificates of purchase primary evidence of own- ership. § 1926. Entries made by officers or boards primary evi- dence, § 1892. Every citizen has a right to inspect and talce a copy of any public writinc: of this State, except as otherwise expressly provided by statute. Public records, etc., open to inspection; Polit. 727 WRITINGS. §§ 1S93-1895 § 1893. Every public officer liaviug the custody ot a public writiug, wliicli a citizen has a right to inspect, is bound to give him, on demand, a cer- tified copy of it, on payment of the legal fees therefor, and such copy is admissible as evidence in like cases and with like effect as the original writing. [Amendment approved March 24, 1874; Amendments 1873-4, p. 381. In effect July 1, 1874.] Inspection: The public records, and other mat- ters in the office of any officer, are at all times, during office hours, open to the inspection of any citizen of this state. In all actions for divorce, the pleadings and the testimony taken and filed in said actions shall not be by the clerk with whom the same is filed, or the referee before whom the testimony is taken, made public, nor shall the same be allowed to be inspected by any person ex- cept the parties that may be interested, or the attorneys to the action, or by an order of the court in which the action is pending; a copy of said or- der must be filed with the clerk. In cases of at- tachment, the clerk of the court with whom the complaint is filed shall not make public the fact of the filing of such complaint, or of the issuing of such attachment, until after the filing of re- turn of service of attachment: Polit. Code, sec, 1032. § 1894, Public writings are divided into four classes: 1. Laws; 2. Judicial records; 3. Otlier oflicial documents; 4. Public records, kept in this State, of private writings, § 1895, Laws, whether organic or ordinary, are either written or unwritten. §§ 1896-1901 WRITINGS. 728 § 1896. A written law is that whicli is pro- mulgated in writing, and of wliicli a record is in existence. § 1897. The organic law is the constitution of government, and is altogether written. Other written laws are denominated statutes. The writ- ten law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States. § 1898. Statutes are public or private. A pri- vate statute is one which concerns only certain designated individuals and affects only their pri- vate rights. All other statutes are public, in which are included statutes creating or affecting corporations. § 1899. Unwritten law is the law not promul- gated and recorded, as mentioned in section eight- een hundred and ninety-six, but which is, never- theless, observed and administered in the courts of the country. It has no certain repository, but is collected from the reports of the decisions of the courts and the treatises of learned men. § 1900. Books printed or published under the authority of a sister State or foreign country, and purporting to contain the statutes, code, or oth- er written law of such State or country, or proved to be commonly admitted in the tribunals of such State or country, as evidence of the written law thereof, are admissible in this State as evidence of such law. Books— historical, etc., sec. 1936: resort to, sec. 1875; authority of, sec. 1963; subd. 35, 36. Sister State— scope of expression: Sec. 1924. § 1901. A copy of the written law or other pub- lic writing of any State or country, attested by the certificate of the officer having charge of the 729 WRITINGS. §§ 1902-1905 original, under tlie public seal of the State or country, is admissible as evidence of sucli law or writing. [Amendment approved March 24, 1874: Amendments 1873-4, p. 381. In effect July 1, 1874.] See post, sec. 1919. Certificate— requisites of: Sec. 1923. § 1902. The oral testimony of witnesses, sliill- ed therein, is admissible as evidence of the un- written law of a sister State or foreign country, as are also printed and published books of reports of decisions of the courts of such State or country, or proved to be commonly admitted in such courts. § 1903. The recitals in a public statute are con- clusive evidence of the facts recited, for the pur- pose of carrying it into effect, but no further. The recitals in a private statute are conclusive evi- dence between parties who claim under its provis- ions, but no further. Recitals— in written instrument: Sec. 1962, subd. 2. § 1904. A judicial record is the record or ofii- cial entry of the proceedings in a court of jus- tice, or of the official act of a judicial officer, in an action or special proceeding. Judgment roll: Sec. 670. Execution book as evidence: Sec. 683. § 1905. A judicial record of this State, or of the United States, may be proved by the produc- tion of the original or by a copy thereof certified by the clerk or other person having the legal cus- v^ tody thereof. That of a sister State may be >- proved by the attestation of the clerk, and the ^ seal of the court annexed, if there be a clerk and ^ seal, together with a certificate of the chief ^v judge or presiding magistrate, that the attestation S^ is in due form. §§ 1906, 1907 WRITINGS. 730 Judicial record, need of seal: Sec. 153, subd. 3; appointment of executor, etc., sec. 1429. Judicial record of a sister State— U. S. Const, art. 4, sec. 1. Certificate: Sec. 1923. § 1906. A judicial record of a foreign country may be proved by the attestation of the clerk, with the seal of the court annexed, if there be a cleric and seal, or of the legal lieeper of the record, with the seal of his office annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate, that the person making the attestation is the clerk of the court, or the le- gal keeper of the record, and, in either case, that the signature of such person is genuine, and that the attestation is in due form. The signature of the chief judge or presiding magistrate must be authenticated by the certificate of the minister or embassador, or a consul, vice-consul, or consular agent of the United States in such foreign coun- try. [Amendment approved March, 24, 1874; Amendments 1873-4, p. 382. In effect July 1, 1874.] Certificate: Sec. 1923. § 1907. A copy of the judicial record of a for- eign country is also admissible in evidence, upon proof: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it: 2. That such original was in the custody of the clerk of the court, or other legal keeper of the same; and, 3. That the copy is duly attested by a seal which is proved to be the seal of the court where the record remains, if it be the record of a court; or if there be no such seal, or if it be not a rec- ord of a court, by the signature of the legal keep- er of the original. 731 WRITINGS. §§1908, 1909 § 1908. The effect of a judgment or final order in an action or special proceeding before a court or judge of this State, or of the United States, having jurisdiction to pronounce the judgment or order, is as follows: 1. In case of a judgment or order against a spe- cific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will, or administration, or the con- dition or relation of the person; 2. In other cases, the judgment or order is, in respect to the matter directly adjudged, conclu- sive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice actual or constructive, of the pendency of the action or proceeding. [Amendment approved March 24, 1874: Amendments 1873-4, p. 382. In effect July 1, 1874.] See sec. 1912, post. Jurisdiction, and collateral attacks: Sec. 1917. Validity of judgment when founded on defective service by publication: Sec. 412. Probate and administration, etc.: Sec. 1333. Order for sale of lands: Sec. 1536. Title: Sec. 409. Parties, etc.: Sec. 1910. Matter directly adjudged: Sec. 1911. Counter-claim barred by defendant's omission to sot up same: Sec. 439. Partition, judgment in: Sec. 766. Sureties: Sec. 1911. § 1909. Other judicial orders of a court or judge of this State, or of the United States, ere- §§1910-1913 WRITINGS. 732 ate a disputable presumption, according to the matter directly determined, betAveen the same parties and their representatives and successors In interest by title subsequent to the commence- ment of the action or special proceeding, litigating for the same thing under the same title and in the same capacity. Disputable presumptions: See sec. 1963 and notes. Parties and privies: See sec. 1908, subd. 2, sec. 1910. § 1910. The parties are deemed to be the same when those between whom the evidence is offered were on opposite sides in the former case, and a judgment or other determination could in that case have been made between them alone, though other parties were joined with both or either. § 1911. That only is deemed to have been ad- judged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or ne- cessary thereto. § 1912. Whenever, pursuant to the last four sections, a party is bound by a record, and such party stands in the relation of a surety for anoth- er, the latter is also bound from the time that he has notice of the action or proceeding, and an ap- portunity at the surety's request to join in the de- fense. § 1913. The effect of a judicial record of a sis- ter State is the same in this State as in the State where it was made, except that it can only be en- forced here by an action or special proceeding, and except, also, that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority. 733 WRITINGS. §§ 1914-1918 § 1914. The effect of the judicial record of a court of admiralty of a foreijin country is the same as if it were the record of a court of admir- alty of the Uuited States. vC^§ 1915. The effect of the judgment of any oth- ^er tribunal of a foreign country having jurisdic- nJ tion to pronounce the judgment, is as follows: \ 1. In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing; 2. In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in inter- est by a subsequent title, and can only be repelled by evidence of a want of jurisdiction, want of no- tice to the party, collusion, fraud, or clear mistake of law or fact. § 1916. Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. § 1917. The jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the par- ties, and over the thing, when a specific thing is the subject of the judgment. s> § 1918. Other official documents may be prov- / ed as follows: f 1. Acts of the executive of this State, by the * records of the State Department of the State and of the United States, by the records of the State Department of the United States, certified by the heads of those departments respectively. They may also be proved by public documents printed by the order of the Legislature or Con- gress, or either house thereof; 2. The proceedings of the Legislature of this Code Civ. rroc— 62. § 1918 WRITINGS. 734 State or of Congress, by the journals of those bod- ies respectively, or either house thereof, or by pub- lished statutes or resolutions, or by copies certified by the clerk or printed by their order; 3. The acts of the executive, or the proceedings of the legislature of a sister State in the same manner; 4. The acts of the executive, or the proceedings of the legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified un- der the seal of the country or sovereign, or by a recognition thereof in some public act of the exec- utive of the United States; 5. Acts of a municipal corporation of this State, or of a board or department thereof, by a copy, certified by the legal keeper thereof, or by a printed book published by the authority of such corporation; G. Documents of any other class in this State, by the original, or by a copy, certified by the legal keeper thereof; 7. Documents of any other class in a sister State, by the original, or by a copy, certified by the legal keeper thereof, together with the certifi- cate of the secretary of state, judges of the su- preme, superior, or county court, or mayor of a city of such State, that the copy is duly certified by the oflicer having the legal custody of the original; 8. Documents of any other class in a foreign country, by the original, or by a copy, certified by the legal keeper thereof, with a certificate, under seal of the country or sovereign, that the docu- ment is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original; 9. Documents in the departments of the United States government, by the certificate of the legal custodian thereof. [Amendment approved March 735 WRITINGS. §§ 1919-1922 24, 1874; Amendments 1873-4, p. 383. In effect July 1st. 1874.] Certificate: Sec. 1923. Documents in this, state: See also sec. 1920. Documents in sister state.— "Sister state" in- cludes United States and territories: Sec. 1924. § 1919. A public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record. Compare sec. 1855, subd. 1. Certificate: Sec. 1923. Executor or administrator, appointment of: Sec. 1429. § 1920. Entries in public or other ofiicial books or records, made in the i^erformance of his duty by a public officer of this State, or by another person in the performance of a duty specially en- joined by law, are prima facie evidence of the facts stated therein. [In effect July 1st, 1874.] Ofiicial documents— proof of, sec. 1918. Entries— by officer or board of officers, etc: Sec. 1920. § 1921. A transcript from the record or docket V of a justice of the peace of a sister State, of a ^ judgment rendered by him, of the proceedings in ^ the action before the judgment, of the execution ;^ and return, if any, subscribed by the justice and f^ verified in the manner prescribed in the next sec- ^ tion, is admissible evidence of the facts stated "^ therein. § 1922. There must be attached to the trans- cript a certificate of the justice that the transcript is in all respects correct, and that he had jurisdic- ^ tion of the action, and also a further certificate of V. the clerk or prothonotary of the county in which ^ the justice resided at the time of rendering the '^ judgment, under the seal of the county, or the ^ seal of the court of common pleas or county court §§ 1923-1926 WRITINGS. 736 thereof, certifying that the person subscribing the transcript was, at tlie date of tlie jndgment, a justice of the peace in the county, and tliat tlie signature is genuine. Such judgment, proceed- ings, and jurisdiction may also be proved by the justice himself, on the production of his docket, or by a copy of the judgment, and his oral examina- tion as a witness. § 1923. Whenever a copy of a writing is certi- fied for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be un- der the official seal of the certifying officer, if there be any, or if he be the clerk of a court hav- ing a seal, under the seal of such court. [Amend- ment approved March 24, 1874; Amendments 1873-4, p. 384. In effect July 1st, 1874.] § 1924. The provisions of the preceding sections of this article applicable to the public writings of a sister State, are equally applicable to the pub- lic writings of the United States or a Territory of the United States. [Amendment approved March 24, 1874; Amendments 1873-4, p. 385. In effect July 1st, 1874. J § 1925. A certificate of purchase or of location of any lands in this State, issued or made in pur- suance of any law of the United States or of this State, is primary evidence that the holder or as- signee of such certificate is the owner of the land described therein; but this evidence may be over- come by proof that at the time of the location, or time of filing a pre-emption claim on AAiiich the certificate may have been issued, the land was in the adverse possession of the adverse party, or those imder whom he claims, or that the adverse party is holding the land for mining purposes. § 1926. An entry made by an officer, or board 737 WRITINGS. §§ 1929, 1930 of officers, or under the direction and in the pres- ence of eitlier, in the course of official duty, is prima facie evidence of the facts stated in such entry. [Amendment approved March 24, 1874; Amendments, 1878-4, p. 385. In effect July 1st, 1874.] ARTICLE III. PRIVATE WRITINGS. § 1929. Private writings classified. § 1930. Seal defined. § 1931. Manner of making it. § 1932. Effect of a seal. § 1933. Execution of an instrument defined. § 1934. Compromise of a debt without seal good. § 1935. Subscribing witness defined. § 1936. Books, maps, etc., how far evidence. § 1937. Original writing to be produced or accounted for. § 1938. When in possession of adverse party, notice to be given. § 1939. Writings called for and inspected may be withheld. § 1940. Where there is a subscribing witness, the proof. § 1941. Other witnesses may also testify. § 1942. When evidence of execution not necessary. § 1943. Evidence of handwriting. § 1944. Allowed by comparison. § 1945. Same. § 1946. Entries of decedent's evidence in specified cases. § 1947. Copies of entries also allowed. § 1948. Piivate writings acknowledged and certified. § 1949. County clerks to keep private papers deposited. § 1950. Public records not to be carried about. g 1951. Instrument conveying or affecting real property may be read in evi(?ence. § 1929. Private writings are either— 1. Sealed; or, 2. Unsealed. No distinction— between sealed and unsealed writings: Sec. 1932. § 1930. A seal is a particular sign, made to at- test in the most formal manner, the execution of an instrument. Seal generally: Sec. 14: requisite: Sec. 1931. §§ 1931-1935 WRITINGS. 738 § 1931. A public seal in this State is a stamp or impression made by a public officer with an instrument provided by law, to attest the execution of an official or public document, upon the paper, or upon any substance attached to the paper, which is capable of receiving a visible impression. A private seal may be made in the same manner by any instrument, or it may be made by the scroll of a pen, or by writing the word "seal" against the signature of the writer. A scroll or other sign, made in a sister State or foreign country, and there recognized as a seal, must be so regarded in this State. [Amendment approved March 24, 1874; Amendments 1873-4, p. 385. In effect July 1st, 1874.] Scope of word "seal": Sec. 14. Impression of seal— Civil Code: Sec. 1628. Seals of courts: Sees. 147-153. § 1932. There shall be no difference hereafter, in this State, between sealed and unsealed writ- ings. A writing under seal may therefore be changed, or altogether discharged, by a writing not under seal. [Amendment approved March 24, 1874; Amendments 1873-4, 386. In effect July 1st, 1874.] Corresponding provisions: See Civil Code, sec. 1629. Agreement of composition — requires no seal: Sec. 1934. § 1933. The execution of an instrument is the subscribing and delivering it, with or without af- fixing a seal. § 1934. An agreement in writing without a seal for the compromise or settlement of a debt, is as obligatory as if a seal were affixed. § 1935. A subscribing witness is one who sees a writing executed or hears it acknowledged, and 739 WRITINGS. §§ 1936-1939 at the request of the party thereupon signs his name as a witness. § 1936. Historical works, boolis of science or art, and published maps or charts, when made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest. [Amendment approved March 24, 1874; Amendments 1873-4, 385. In effect July 1, 1874.] Books— as aid to court: Sec, 1875; as evidence: Sec. 1900; presumptions as to: Sec. 1903, subds. 35, 36. § 1937. The original writing must be produced and proved, except as provided in sections eight- een hundred and fifty-five and nineteen hundred v<^ and nineteen. If it has been lost, proof of the loss v> must first be made before evidence can be given ^ of its contents. Upon such proof being made, to- "<^ gether with proof of the due execution of the writ- V ing, its contents may be proved by a copy, or by *-. a recital of its contents in some authentic docu- ^ ment, or by the recollection of a witness, as pro- vided in section eighteen hundred and fifty-five. § 1938. If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the con- tents of the writing may be proved as in case of its loss. But the notice to produce it is not neces- sary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party. Document in possession— of opponent: Sec. 1855, subd. 2. § 1939. Though a writing called for by one party is produced by the other, and is thereupon '^■inspected by the party calling for it. he is not ob- '^liged to produce it as evidence in the case. Writing shown to witness: See sec. 2054, post. §§ 1940-1944 WRITINGS. 740 § 1940. Any writing may be proved either: 1. By any one who saAv the writing executed; or, 2. By evidence of the genuineness of the hand- writing of the malcer; or, 3. By a subscribing witness. [Amendment ap- proved' March 24, 1874; Amendments 1873-4, 386. In effect July 1st, 1874.] Proof of execution of writing— by admission: Sec. 1942. Proof of handwriting: Sec. 1943. Subscribing Avitness: Sec. 1935; other evidence of execution wlien admissible: Sees. 1941-1945; on contest of will: Sec. 1315. § 1941. If the subscribing witness denies or does not recollect the execution of the writing, its execution may still be proved by other evidence. § 1942. Where, however, evidence is given that the party against whom the Avriting is offered has at any time admitted its execution, no other evi- dence of the execution need be given, when the instrument is one mentioned in section nineteen hundred and forty-five, or one produced from the custody of the adverse party, and has been acted upon by him as genuine. § 1943. The handM^riting of a person may be proved by any one who believes it to be his, and who has seen him write, or has seen writings pur- porting to be his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting. § 1944. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the jury, with Avritings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. [Amendment approved Marcli 24. 1874; Amendments 1873-4, 380. In ef- fect July 1, 1874.] 741 WRITINGS. §§ 1945-1948 § 1945. Where a writing is more than thirty- years old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such, by persons hav- ing an interest in knowing the fact. Presumption— that ancient writing is genuine; Sec. 19G3, subd. 34. vV § 1946. The entries and other writings of a de- \ cedent, made at or near the time of the transac- ^ tion, and in a position to know the facts stated ,^ therein, may be read as prima facie evidence of \ the facts stated therein, in the following cases: 1. When the entry was made against the in- terest of the person making it; 2. When it was made in a professional capacity, and in the ordinary course of professional conduct; 3. When it was made in the performance of a duty specially enjoined by law. [Amendment ap- proved ]March 24, 1874: Amendments 1873-4, 386. In effect July 1st, 1874.] Entries in books— repeated: Sec. 1947; where al- teration: Sec. 1982. vN § 1947. When an entry is repeated in the reg- vk ular course of business, one being copied from an- ^ other at or near the time of the transaction, all ^ the entries are equally regarded as originals. r § 1948. Every private writing, except last wills and testaments, may be acknowledged or proved and certified in the manner provided for the ac- . knowledgment of proof of conveyances of real property, and the certificate of such acknowledg- ■ mont or proof is prima facie evidence of the exe- cntion of the writing in the same manner as if it were a conveyance of real property. [Amendment approved March 24. 1874; Amendments 1873-4, 387. In effect July 1, 1874.] Conveyance of real property— as evidence: Sec. 1951. §§ 1949, 1945 MATERIAL OBJECTS, ETC. 742 § 1949. [Repealed March 24, 1874; Amend- ments 1873-4, 387. In effect July 1st, 1874.] § 1950. The record of a conveyance of real property, or any other record, a transcript of which is admissible in evidence, must not be removed from the office where it is kept, except upon the order of a court, in cases where the inspection of the record is shown to be essential to the just de- termination of the cause or proceeding pending, or where the court is held in the same building with such office. [Amendment aproved March 24, 1874; Amendments 1873-4, 387. In effect July 1st, 1874.] § 1951. Every instrument conveying or affect- ing real property, acknowledged or proved and cer- tified, as provided in the Civil Code, may, together with the certificate of aclvuowledgment or proof, be read in evidence in an action or proceeding, without further proof; also, the original record of such conveyance or instrument thus acknowledg- ed or proved, or a certified copy of the record of such conveyance or instrument thus aclcnowledged or proved, may be read in evidence, with the like effect as the original instrument, without further proof. [Amendment approved ]March 1, 1889; Amendments, 1889, 45. In effect March 1, 1889.] Certified copy, etc: See sec. 1948, ante. CHAPTER IV. MATERIAL OBJECTS PRESENTED TO THE SENSES, OTHER THAN WRITINGS. § 1954. Material objects. § 1954. Whenever an object, cognizable by the senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respect- ing it, or to make an item in the sum of the evl- 743 INDIRECT EVIDENCE, ETC. §§ 1957-1961 deuce, such object may be exhibited to the jury, or its existeuce, situatiou, or character may be proved by witnesses. The admission of such evi- dence must be regulated by the sound discretion of the court. CHAPTER V. INDIRECT EVIDENCE INFERENCES. AND PRESUMP- TIONS. § 1957. Indirect evidence classified. § 1958. Inference defined. § 19o9. Presumption defined. § 1960. When an inference arises. § 1961. Presumptions may be controverted, when. § 1962. Specification of conclusive presumptions. § 1963. All other presumptions may be controverted. § 1957. Indirect evidence is of two kinds: 1. Inferences; and, 2. Presumptions. § 1958. An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. § 1959. A presumption is a deduction which the law expressly directs to be made from particular facts. § 1960. An inference must be founded— 1. On a fact legally proved; and. 2. On such a deduction from that fact as is warranted by a consideration of the usual pro- pensities or passions of men, the particular pro- pensities or passions of the person whose act is in question, the course of business, or the course of nature. § 1961. A presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect; but unless so contro- §1962 INDIRECT EVIDENCE, ETC. 744 verted, the jury are bouud to find according to the presumption. § 1962. The following presumptions, and no others, are deemed conclusive: 1. A malicious and guilty intent, from the de- liberate commission of an unlawful act, for the purpose of injuring another. 2. The truth of the facts recited, from the re- cital in a written instrument between the parties thereto, or their successors in interest by a subse- quent title; but this rule does not apply to the re- cital of a consideration, 3. Whenever a party has, by his own declara- tion, act, or omission, intentionally and deliberate- ly led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it. 4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation. 5. The issue of a wife cohabiting with her hus- band, who is not impotent, is indisputably pre- sumed to be legitimate. G. The judgment or order of a court, when de- clared by this Code to be conclusive; but such judgment or order must be alleged in the plead- ings, if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence. 7. Any other presumption which, by statute, is expressly made conclusive. Subd. 3, Standing by, etc— One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers: Civ. Code, see. 1709. Tenant denying landlord's title: Civ. Code, sec. 1948. Judgments, etc.: See. 190S. Other estoppels.— 745 INDIRECT EVIDENCE, ETC. § 1933 Decree allowing executors, etc., accounts: Sec. 1638; evidence of notice on application for letters of administration: Sec. 1376; probate: Sec. 1333; conclusive evidence generally: Sec. 1978. § 1963. All otlier presumptions are satisfac- toryy, if uncontradicted. Tiiey are denominated disputable presumptions, and may be controverted by other evidence. Tlie following are of that kind. 1. That a person is innocent of crime or wrong. 2. That an unlawful act was done with an un- lawful intent. 3. That a person intends the ordinary conse- quence of his voluntary act. 4. That a person takes ordinary care of his ovim concerns. 5. That evidence willfully suppressed would be adverse if produced. 6. That higher evidence would be adverse from inferior being produced. 7. That money paid by one to another was due to the latter. 8. That a thing delivered by one to another be- longed to the latter. 9. That an obligation delivered up to the debtor has been paid. 10. That former rent or installments have been paid when a receipt for latter is produced. 11. That things which a person possesses are owned by him. 12. That a person is tlie owner of property from exercising acts of ownership over it, or from com- mon reputation of his ownership. 13. That a person in possession of an order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly. 14. That a person acting in a public office was regularly appointed to it. Code Civ. Proc— 63. § 1963 INDIRECT EVIDENCE, ETC. 746 15. That official duty lias been regularly per- formed. 10. That a court or judge, acting as such, whether in this State or any other State or coun- try, was acting in the lawful exercise of his jur- isdiction. 17. That a judicial record, when not conclusive does still correctly determine or set forth the rights of the parties. 18. That all matters within an issue were laid before the jury and passed upon by them; and in lilvC manner, that all matters within a submission to arbitration were laid before the arbitrators and passed upon by them. 19. That private transactions have been fair and regular. 20. That the ordinary course of business has been followed. 21. That a promissory note or bill of exchange was given or indorsed for a sufficient considera- tion. 22. That an indorsement of a negotiable prom- issory note or bill of exchange was made at the time and place of making the note or bill. 23. That a writing is truly dated. 24. That a letter duly directed and mailed was received in the regular course of the mail. 2.5. Identity of person from identity of name. 2(>. That a person not heard from in seven years is dead, 27. That acquiescence followed from a belief that the thing ac(iuiesced in was conformable to the right or fact, 28. That things have happened according to the ordinary course of nature and the ordinary hab- its of life. 21). That persons acting as copartners have en- tered into contract of copartnership. : 30. That a man and woman deporting them- selves as husband and wife have entered Into a lawful contract of marriage. 747 INDIRECT EVIDENCE, ETC. §1962 31. That a child born in lawful wedlock, there being no divorce from bed and board, is legiti- mate. 32. That a thing once proved to exist continues as long as is usual with things of that nature. 33. That the law has been obeyed. 34. Til at a document or writing more than thir- ty years old, is genuine, when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its cus- tody has been satisfactorily explained. 35. That a printed and published book, purport- ing to be printed or published by public authority,, was so printed or published. 36. That a printed and published book, purport- ing to contain reports of cases adjudged in -the tribunals of the State or country where the book is publshed, contains correct reports of such caf^es. 37. That a trustee or other person, whose duty it was to convey real property to a particular per- son, has actually conveyed to him, when such pre- sumption is necessary to perfect the title of such person or his successor in interest. 38. The uninterrupted use by the public of land for a burial ground, for five j'ears, with the con- sent of the owner and without a reservation of his rights, is presumptive evidence of his intention to dedicate it to the public for that purpose. 39. That there was a good and sufficient con- sideration for a written contract. 40. When two persons perish in the same cal- amity, such as a wreck, a battle, or a conflagra- tion, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules: First. — If both of those who have perished were under the age of fifteen years, the older is pre- sumed to have survived, § 1063 INDIRECT EVIDENCE, ETC. 748 Second. — If both were above the age of sixty, the younger is presumed to have survived. Third.— If one be under fifteen and the other above sixty, the former is presumed to have sur- vived. Fourtli.— If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived. If the sexes be the same, then the older. Fifth. — If one be under fifteen or over sixty, and the other between those ages, the latter is pre- sumed to have survived. Subds. 17, 18. Proceedings of courts: Sec. 87, and notes, and sec. 1908; on estoppels by judg- ment: Parnell v. Hahn, 61 Cal. 131. Subd. 20. Ordinary course of business has been followed: Sec. 1960. Subd. 21. Note or bill imports a consideration.— A written instrument is presumptive evidence of a consideration: Civ. Code, sec. 1614. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it: Civ. Code, sec. 1615: Mc- Cann v. Lewis, 9 Cal. 247; McCarty v. Beach, 10 Id. 463; Winters v. Rush, 34 Id. 138; and see subd. 39 of this section. Legitimacy: See Civ. Code, sec. 193. Other presumptions. — Transcript of shorthand notes is prima facie evidence: Sec. 270, ante; order of probate court for disclosure of property of es- tate: Sec. 1460, ante; conveyance executed by executor, etc: Sec. 1601, ante. On sales of stock for delinquent assessments, the Civil Code, sec- tion 348, provides: The publication of notice re- quired by this article may be proved by the affi- davit of the printer, foreman, or principal clerk of the newspaper in which the same was published; and the affidavit of the secretary or auctioneer is prima facie evidence of the time and i>lace of sale, of tlio quantity and particular description of the stock sold, and to whom, and for what price, and 749 INDIRECT EVIDENCE, ETC. § 1963 of the fact of the purchase money being- paid. The attidavits must be filed in the otlice of tlie corpora- tion, and copies of the same certified by the secre- tary tliereof, are prima facie evidence of the facts therein stated. Certificates signed by the secre- tary, and under the seal of the corporation, are prima facie evidence of the contents thereof. Copies of the entries of a county clerk, when certified by him, and affidavits of publication made by the printer, publisher, or chief cleric of a news- paper, under sections 24GG-2471 of the Civil Code, relating to the use of fictitious names in partner- ships, are presumptive evidence of the facts there- in stated: See note 42G. An affidavit of the making of the publication of the certificate of a special partnership, or its sub- stance under sections 2477-2485 of the Civil Code, made by the printer, publisher, or the chief clerk of the newspaper in which such publication is made, may be filed with the county recorder with whom the original certificate was filed, and is pre- sumptive evidence of the facts therein stated: Civ. Code, sec. 2484. The protest of a notary, under his hand and of- ficial seal, of a bill of exchange or promissorj- note for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance or non-payment thereof, the serv- ice of notice on any or all the parties to such bill of exchange or promissory note, and specifying the mode of giving sucli notice, and the reputed place of residence of the party to such bill of ex- change or promissory note, and of the party to whom the same was given, and the postoffice near- est thereto, is prima facie evidence of the facts contained therein: Polit. Code, sec. 795. All fines and penalties for non-attendance upon drills, parades, and inspections of the national guard, legally determined and imposed under the provisions of such rules and by-laws, may be col- lected by action in justice's court, in the name of S§ 1867-1968 INDISPENSABLE EVIDENCE. 750 the people of the State of California; and the boolis and records of regiments, battalions, and companies, and the proceedings under which de- linquents are fined, are prima facie evidence of the facts therein stated: Polit. Code, sec. 1935. The secretary of the fire department, or fire com- pany, must keep a record of all certificates of ex- emption or active membership, the date thereof ^nd to whom issued; and when no seal is pro- vided, similar entries of certificates issued to ob- tain county clerks' certificates. Every such cer- tificate is prima facie evidence of the facts there- in stated: Polit. Code, sec. 3341. All surveys and maps of boundary lines here- tofore legally made and approved are declared valid, and they are prima facie evidence of the establishment of such lines, except so far as they are inconsistent with the provisions of this code: Polit. Code, sec. 3973. CHAPTER YI. INDISPENSABLE EVIDENCE, f 1967. Indispensable evidence, what. § 1938. To prove usage, perjury, and treason, more than one witness required. § 1969. Will to be in writing. § 1970. How revoked. § 1971. Transfer of real property to be in writing. § 1972. Last section not to extend to certain cases. § 1973. Agreement not in writing, when invalid. § 1974. Representation of credit by writing. § 1967. The law makes certain evidence nec- essary to the validity of particular acts, or the proof of particular facts. § 1968. Perjury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two wit- nesses, or one witness and corroborating circum- stances. Two witnesses— for probate of lost will: Sec, 1339. 751 INDISPENSABLE EVIDENCE. §§ 1969-1972 § 1969. A last will and testament, except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. [Amendment approved March 24, 1874; Amend- ments 1873-4, 388. In effect July 1st, 1874.] Lost or destroyed will— probate of: Sees. 1338- 1341. § 1970. A written will cannot be revoked or al- tered otherAvise than as provided in the Civil Code. [Amendment approved March 24, 1874; Amend- ments 1873-4, 388. In effect July 1st, 1874.] Ilevocation or alteration of will: See Civil Code, sec. 1292 et seq. § 1971. No estate or interest in real property, \_ Other than for leases for a term not exceeding one -/year, nor any trust or power over or concerning it, ^"or in any manner relating thereto, can be created- ^ granted, assigned, surrendered, or declared, other- ^ wise than by operation of law, or a conveyance, %.or other instrument in writing, subscribed by the .■O party creating, granting, assigning, surrendering, < or declaring the same, or by his lawful agent thereunto authorized by writing. Scope of section— application restricted by Sec. 1972. Corresponding provision: Civil Code, sec. 1091. Real property — estate, interest, etc., in, compare sec. 1973, subd. 5. Trust— Civil Code: Sec. 852. Grant, etc.: Civ. Code, sec. 1053. § 1972. The preceding section must not be con- strued to affect the power of a testator in the dis- , position of his real property by n last will and te&- V itament, nor to prevent any trust from arising or ■Cl. being extinguished by implication or operation of § 1973 INDISPENSABLE EVIDENCE. 752 law, fior to abridge the power of auy court to coeq- pel the specific performance of an agreement, in case of part performance thereof. Specific performance: See Civ. Code, sec. 3384 et seq. § 1973. In the following cases the agreement is invalid, unless the same or some note or memor- andum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, there- fore, of the agreement, cannot be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, de- fault, or miscarriage of another, except in the cases provided for in section twenty-seven hun- dred and ninety-four of the Civil Code; 3. An agreement made upon consideration of marriage, other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and re- ceive part of such goods and chattels, or the evi- dences, or some of them, of such things in action, or pay at the time some part of the purchase- money; but when- a sale is made by auction, an entry by the auctioneer in his sale-book, at the time of the sale, of the kind of property sold, the terms of sale, the price, and the names of the pur- chaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real prop- erty, or of an interest therein, and such agree- ment, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. Corresponding provision: Civil Code, sec. 1624. 753 CONCLUSIVE EVIDENCE. §§ 1974, 1978 Note or memorandum— by auctioneer: Sec. 1973, subd. 4. , Correspondins: provision; Civil Code, sec. 2793: exception: Civil Code, sec. 2794; executor by: Sec. 1G12. Agreement for sale of goods, etc.— auction sale, entry of: Civil Code, sec. 1798; Political Code, sec. 3292; corresponding provision: Civil Code, sec. 1739, and see Civil Code, sec. 1740. Parol evidence, when admissible to explain writ- ing: Sec. 1856, ante. § 1974. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either y subscribed by, or in the handwriting of, the party to be charged. CHAPTER VII. CONCLUSIVE OR UNANSWERABLE EVIDENCE. § 1978. Conclusive or unanswerable evidence. 5 1978. No evidence is by law made conclusive or unanswerable, unless so declared by this Code. Estoppel: Sees. 1908, 1962. §§ 1981, 1982 MEANS OF PRODUCTION- 754 TITLE III. OF THE PRODUCTION OF EVIDENCE. Chapter I. By whom to be produced. §§ 1981- 1982. II. Means of production. §§ 1985-1997. III. Manner of production. §§ 2002-2054. CHAPTER I. BY WHOM TO BE PRODUCED. $ 1981. Evidence to be produced, by whom. § 1982. Writing altered, who to explain. § 1981. The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. Burden of proof: Sec. 1869. § 1982. The party producing a writing as gen- uine which has been altered, or appears to have been altered, after its execution, in a part mate- rial to the question in dispute, must account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instru- ment. If he do that, he may give the writing In evidence, but not otherwise. Printed form— erasure in: 32 Cal. 88; construc- tion of: Sec. 1862, 755 MEANS OF PRODUCTION. §§ 19S5, 1986 CHAPTER II. MEANS OP PRODUCTION. § 1985. Subpoena for witness defined. § 19S6. Subpoena, bow issued. § 19S7. Subpoena, bow served. § 1988. How, if witness be concealed. § 1989. When a witness Is compelled to attend. § 1990. Person present compelled to testify. § 1991. Disobedience, bow punisbed. § 1992. Forfeiture therefor. § 1993. Warrant may issue to bring witness, when. § 1994. Contents of warrant. I 1995. If witness be a prisoner, how brought. § 1996. On whose motion. § 1997. How examined. § 1985. The process by which the attendance of a witness is required is a subpoena. It is a writ or order directed to a person and requiring his at- tendance at a particular time and place to testify- as a witness. It may also require him to bring with him any books, documents, or other things under his control, which he is bound by law to pro- duce in evidence. § 1986. The subpoena is issued as follows: 1. To require attendance before a court, or at the trial of an issue therein, it is issued under the seal of the court before which the attendance is required, or in which the issue is pending; 2. To require attendance out of the court, before ^ a .iudge, justice, or other officer authorized to ad- ^ minister oaths or talvc testimony in any matter ^ under the laws of this State, it is issued by the - judge, justice, or any other officer before whom "- the attendance is required; 3. To require attendance before a commissioner appointed to take testimony by a court of a foreign y country, or of the United States, or of any other v^ State in the United States, or of any other dis- trict or county within this State, or before any officer or officers empowered by the laws of I 1987-1939 MEANS OF PRODUCTION. 756 the United States to take testimony, it may be is- sued by any judge or justice of tlie peace in places witliin their respective jurisdiction; with lilie pow- er to enforce attendance, and, upon certificate of contumacy to said court, to punish contempt of their process, as such judge or justice could exer- cise if the subpoena directed the attendance of the witness before their courts in a matter pending therein. § 1987. The service of a subpoena is made by showing the original and delivering a copy, or a ticliet containing its substance, to the witness personally, giving or ofteriug to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place desig- nated, and one day's attendance there. The serv- ice must be made so as to allow the witness a rea- sonable time for preparation and travel to the place of attendance. Such service may be made by any person. Costs where subpoena served by person other than sheriff: See post, Appendix, p. 770. § 1988. If a witness is concealed in a building or vessel, so as to prevent the service of a sub- poena upon him, any court or judge, or any officer issuing a subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the sheriff must serve it accordingly, and for that purpose may brealv into the building or vessel where the wit- ness is concealed. § 1989. A witness is not obliged to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. 757 MEANS OF PRODUCTIOX. g? 1990-1994 § 1990. A person present in court, or before a judicial officer, may be required to testify in ttie same manner as if be were in attendance upon a subpoena issued by such court or officer. § 1991. Disobedience to a subpoena, or a re- fusal to be SAVorn, or to answer as a witness, or to subscribe an affidavit or deposition when re- quired, may be punished as a contempt by the court or officer issuing the subpoena or requiring the witness to be sworn; and if the witness be a party, his complaint or answer may be stricken out. Refusal to answer: Sec. 2065. Contempt: Sees. 1209, 1219. § 1993. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. § 1993. In case of failure of a witness to at- tend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the fail- ure of the witness, may issue a warrant to the sheriff of the county to arrest the witness and bring him before the court or officer where his at- tendance was required. § 1994. Every warrant of commitment, issued by a court or officer pursuant to this chapter, must specify therein, particularly, the cause of the com- mitment, and if it be for refusing to answer a question, such question must be stated in the war- rant. And every warrant to arrest or commit a witness, pursuant to this chapter, must be direct- ed to the sheriff of the county where the witness jmay be, and must be executed by him in the same manner as process issued by the Superior Court. Code Civ. rroc— 34, §§ 1995-1907 MEANS OF PRODUCTION. 758 [Amendment approved April 10, 1880; Amend- ments 1880, 114. In effect April IGth, 1880.] § 1995. If the witness be a prisoner, confined in a jail or prison witliin tliis State, an order for liis examination in tiie prison upon deposition, or for bis temporary removal and production before a court of officer, for the purpose of being orally- examined, may be made as follows: 1. By the court itself in which the action or special proceeding is pending, unless it be a Jus- tice's Court; 2. By a justice of the Supreme Court, or a judge of the Superior Court of the county where the ac- tion or proceeding is pending, if pending before a Justice's Court, or before a judge or other person out of court. [Amendment approved April 16, 1880; Amendments 1880, 115. In effect April 16th, 1880.] § 1996. Such order can only be made on the motion of a party, upon affidavit showing the na- ture of the action or proceeding, the testimony ex- pected from the witness, and its materiality. § 1997. If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition. 759 MANNER OF PRODUCTION. §§ 2002-2005 CHAPTER III. MANNER OF PRODUCTION. Article I. Mode of Taking the Testimony of Witnesses. II. Affidavits. III. Depositions. IV. Manner of Taking Depositions out of the State. V. Manner of Taking Depositions in the State. VI. General Rules of Examination. ARTICLE I. MODE OF TAKING THE TESTIMONY OF WITNESSES. § 2002. Testimony, in what mode taken. § 2003. Affidavit defined. § 2004. A deposition defined. § 2005. Oral examination defined. § 2006. Deposition, how taken. § 2002. The testimony of witnesses is talven in three modes: 1. By affidavit; 2. By deposition; 3. By oral examination. § 2003. An affidavit is a written declaration under oath, made without notice to the adverse party. Affidavits: Sec. 2009 et seq. § 2004. A deposition is a written declaration under oath, made upon notice to tlie adverse party for the purpose of enablinc^ him to attend and cross-examine. Depositions: Sees. 2019-2021; form of: See. 2006. § 2005. An oral examination is an examination in presence of tlie jury or tribunal whicli is to de- cide the fact or act upon it. the testimony being §§ 2006, 2010 MANNER OP PRODUCTION. 760 heard by the jury or tribimal from the lips of the witness. General rules of examination: Sees. 2042-2054. § 2006. Depositions must be taken in the form of question and answer, and the words of the wit- ness must be written down, unless the parties agree to a different mode. ARTICLE II. AFFIDAVITS. § 2009. Affidavits and depositions, how taken. § 2010. Evidence of publication, what. § 2011. Where filed. § 2012. Affidavits to be used in this State, before whom may be taken in this State. § 2013. If made in another State of the United States, be- fore whom taken. § 2014. If made in a foreign country, before whom taken, § 2015. Certificate of the clerk, if taken before a judge of a court out of this State. § 2009. An afhdavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a wit- ness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this Code. Affidavit: See sees. 2010, 2011. § 2010. Evidence of the publication of a docu- ment or notice required by law, or by an order of a court or .iudge to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, an- nexed to a copy of the document or notice, speci- fying tlie times when and the paper in which the pul)lication was made. Affidavit of publication: See sec. 413. 761 MANNER OF PRODUCTION. §§ 2011-2015 § 2011. If such affidavit be made in an action or special proceeding pending in a court, it may be filed TV'ith the court or a clerli thereof. If not so made, it may be filed with the cleric of the county where the newspaper is printed. In either case, the original affidavit, or a copy thereof, certified by the judge of the court or cleric having it in cus- tody, is prima facie evidence of the facts stated therein. [Amendment approved March 24, 1874; Amendments 1873-4, p. 388. In effect July 1, 1874.] § 2012. An affidavit to be used before any court, judge, or officer of this State, may be tak- en before any judge or clerk of any court, or any justice of the peace or notary public in this State. Persons authorized to take affidavits: Sec. 179, subd. 3. § 2013. An affidavit taken in another State of the United States, to be used in this State, may be taken before a commissioner appointed hy the governor of this State to take affidavits and depo- sitions in such other State, or before any notary public in another State, or before any judge or clerk of a court of record having a seal. [Amend- ment approved March 24, 1874; Amendments 1873-4, p. 389. In effect July 1, 1874.] § 2014. An affidavit taken in a foreign country to be used in this State, must be taken before an embassador, minister, consul, vice-consul, or con- sular agent of the United States, or before any judge of a court of record having a seal, in such foreign country. [Amendment approved March 24, 1874; Amendments 1873-4, p. 389. In effect July 1, 1874.] § 2015. When an affidavit is taken before a judge of a court in another State, or in a foreign country, the genuineness of the signature of the §§ 2019-2021 MANNER OF PRODUCTION. 762 judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. ARTICLE III. DEPOSITIONS. § 2019. Deposition, when used. § 2020. Testimony of a witness out of the State, when taken. § 2021. In the State, when taken. § 2019. In all cases other than those mentioned in section two thousand and nine, where a written declaration under oath is used, it must be a deposition as prescribed by this Code. § 2020. The testimony of a witness out of the State may be tal^en by deposition, in an action, at any time after the service of the summons or the appearance of the defendant; and, in a special pro- ceeding, at any time after a question of fact has arisen therein. Manner of taking depositions out of the State: Sec. 2024 et seq. § 2021. The testimony of a witness in this State may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a spe- cial proceeding after a question of fact has aris- en therein, in the following cases: 1. When the witness is a party to the action or proceeding, or an otRcer or member of a corpora- tion which is a party to the action or proceeding, or a person for whose immediate benefit the ac- tion or proceeding is prosecuted or defended. 2. When the witness resides out of the county in which his testimony is to be used. .■'>. When the witness is about to leave the coun- ty where the action is to be tried, and will prob- 763 MANNER OF PRODUCTION. § 2024 ably continue absent when the testimony is re- quired. 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend. 5. When the testimony is required upon a mo- tion, or in any other case where the oral examin- ation of the witness is not required. 6. When the witness is the only one who can establish facts or a fact material to the issue; provided, that the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause. [Amendment approved March 9, 1878; Amendments 1877-8, p. 112. In effect sixty days after passage.] Deposition: Mode of tailing, sec. 2006; who may take, sec. 179, subd. 3; in this State, manner of taking, sec. 2031 et seq. ARTICLE IV. MANNER OF TAKING DEPOSITIONS OUT OF THE STATE. § 2024. Testimony of witness out of State taken upon com- mission issued under seal, upon notice. To whom issue. § 2025. Proper interrogatories may be prepared, or may be waived by the parties. § 2026. Authorities and duties of commissioner. § 2027. Trial, when postponed for reason of nonreturn of commission. § 2028. Depositions, by whom used. § 2024. The deposition of a witness out of this state may be taken upon a commission issued from the court under the seal of the court, upon an order of the court or a judge or a justice there- of, on the application of either party, upon five days' previous notice to the other. If the court be a justice's court, the commission shall have at- tached to it a certificate, under seal by the coun- ty clerk of such county, to the effect that the §§ 2025-2027 MANNER OF PRODUCTION. 764 person issuing the same was an acting justice of the peace at the date of the commission. If is- sued to any place within the United States, it may- be directed to a person agreed upon by the par- ties, or if they do not agree, to any judge or jus- tice of the peace or commissioner selected by the court or judge or justice issuing it. If issued to any country out of the United States, it may be directed to a minister, embassador, consul, vice consul, or consular agent of the United States in such country, or to any person agreed upon by the parties. [Amendment approved March 10, 1891; Stats. 1891, p. 51; in effect immediately.] § 2025. Such proper interrogatories, direct and cross, as the respective parties may prepare to be settled if the parties disagree as to their form, by the judge or officer granting the order for the commission, at a day fixed in the order, may be annexed to the commission; or, when the parties agree to that mode, the examination may be without written interrogatories. Interrogatories— question and answer in deposi- tions: Sec. 2000. § 2026. The commission must authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the inter- rogatories, or when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelope, directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other usual chan- nel of conveyance. Certificate: Sec. 2032. § 2027. A trial or other proceeding must not be postponed by reason of a commission not re- turned, except upon evidence, satisfactory to the 765 MANNER OF PRODUCTION. §§ 2028, 2031 court, that the testimony of the witness is neces- sary, and that proper diligence has been used to obtain it. § 2028. The deposition mentioned in this ar- ticle may be used by either party on the trial of other proceeding against any other party giving or receiving the notice, subject to all just excep- tions. Compare with sec. 2034, post. ARTICLE V. MANNER OF TAKING DEPOSITIONS IN THIS STATE. 5 2031. Depositions may be taken before a judge, etc., upon notice to the adverse party. § 2032. Manner of taking depositions. May be used by either party on the trial. § 20^3. When deposition excluded. § 20.''.4. A deposition once taken may be read at any ttme. § 2035. Deposition in this State to be used in other States. § 2033. How to procure witness upon commission. § 2037. How, if no commission. § 2038. Deposition, how taken. § 2031. Either party may have the deposition taken of a witness in this State, in either of the cases mentioned in section two thousand and twenty-one, before a judge or officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of ex- amination, together with a copy of an affidavit, showing that the case is witliin that section. Such notice must be at least five days, adding al- so one day for every twenty-five miles of the dis- tance of the place of examination from tlie res- idence of the person to whom the notice is given, unless, for a cause shown, a judge, by order, pre- scribed a shorter time. When a shorter time is §§ 2032, 2033 MANNER OF PRODUCTION. 706 prescribed, a copy of the order must be served with the notice. Subpoena issuing to take testimony before no- tary: See sec. 19S6, subd. 2. § 2032. Either party may attend the examina- tion and put such questions, direct and cross, as may be proper. The deposition, when complet- ed, must be carefully read to the witness and cor- rected by him in any particular, if desired; it must then be subscribed by the witness, certified by the judge or oflicer talving the deposition, in- closed in an envelope or wrapper, sealed and di- rected to the clerk of the court in which the ac- tion is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail, or by some safe private opportunity; and thereupon such deposi- tion may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subjest to all legal excep- tions; but if the parties attend at the examina- tion, no objection to the form of an interroga- tory, shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be talvcn under subdivisions two. three, and four, of section tAvo thousand and twenty-one, proof must be made at the trial that the witness continues absent or infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. Depositions must be in the form of question and answer, unless otlierwiso agreed: Sec. 2006. Notice: Sec. 20.33. § 2033. Notwithstanding tlio taking of a depo- sition, it may be excluded from the case upon proof that sufficient notice was not given to the party against whom it is offered to enable him to 767 MANNER OF PRODUCTION. §§ 2034-2037 attend the taking thereof, or that the taking was not in all respects fair. § 2034. When a deposition has been once tak- en, it may be read by either party in any stage of the same action or proceeding, or in any other ac- tion between the same parties upon the same subject, and is then deemed the evidence of the party reading it. Reading deposition— in another action: Sec. 2028. § 2035. Any party to an action or special pro- ceeding in a court, or before a judge, of a sister State, may obtain the testimony of a witness re- siding in this State, to be used in such action or proceeding, in the cases mentioned in the next two sections. § 2036. If a commission to take such testimony has been issued from the court, or a judge there- of, before which such action "or proceeding is pending, on producing the commission to a judge of the siiperior court, with an affidavit satisfac- tory to him of the materiality of the testimony, he may issue a subpoena to the witness, re'quir- ing him to appear and testify before the commis- sioner named in the commission, at a specified time and place. [Amendment approved April 16, 1880: Amendments 1880, p. 115. 'In effect April 16, 1880.] Subpoena: Sec. 1985 et seq. § 2037. If a commission has not been issued, and it appear to a judge of the Superior Court, or to a justice of the peace, by affidavit satisfactory to him: 3 . That the testimony of the witness is material to either party: 2. That a commission to take the testimony of such witness has not been issued: §§ 2038, 2042 MANNER OF PRODUCTION. 768 3. That, according to the law of the State where the action or special proceeding is pending, the deposition of a witness fallen under such cir- cumstances, and before such judge or justice, will be received in the action or proceeding; he must issue his subpoena requiring the witness to appear and testify before him at a specified time and place. [Amendment approved April 16, 1880; Amendments 1880, p. 115. In effect April 16, 1880.] § 2038. Upon the appearance of the witness, the judge or justice must cause his testimony to be taken in writing, and must certify and trans- mit the same to the court or judge before whom the action or proceeding is pending, in such man- ner as the law of that State requires. ARTICLE VI. GENERAL RULES OF EXAMINATION. § 2042. Order of proof, how regulated. § 2043. Witnesses not under examination may be excluded. § 2044, Court may control mode of interrogation. § 2045. Direct and cross-examination defined. § 2046. Leading question defined. § 2047. When witness may refresh memory from notes. § 2048. Cross-examination, as to what. § 2049. Party producing witness, how far may Impeach his credit. § 2050. Witness, how examined. When re-examined. § 2051. How impeached. § 2052. Same. § 2053. Evidence of good character, when allowed. § 2054. Writing shown to witness may be inspected by ad- verse party. § 2042. The order of proof must be regulated by the sound discretion of the court. Ordinarily, the party beginning the case must exhause his evi- dence before the other party begins. 739 MANNER OP PRODUCTION. §§2043-2047 Order of proof— controlled by court: Sec. 607. Reopeuinsi- case: Sec. GOT, subd. 3. llebuttal: See sec. 607. § 2043. If either party requires it, the judge may exclude from the court-room any witness of the adverse party, not at the time under examina- tion, so that he may not hear the testimony of other witnesses. § 2044. The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth as may be; but subject to this rule— the parties may put such pertinent and legal ques- tions as they see fit. The court, however, may stop tlie production of further evidence upon any particular point when the evidence upon it is al- ready so full as to preclude reasonable doubt. Answer of witness: Sees. 2065, 2066. § 2045. The examination of a witness by the party producing him is denominated the direct examination; the examination of the same wit- ness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examination begins, unless the court otherwise direct. § 2046. A question which suggests to the wit- ness the answer which the examining party de- sires, is denominated a leading or suggestive ques- tion. On a direct examination, leading ques- tions are not allowed, except in the sound dis- cretion of the court, under special circumstances making it appear that tlie interests of justice require it. § 2047. A witness is allowed to refresh his memory respecting a fact, by anything written Code Civ. Proc— 65. §§ 2048-2050 MANNER OF PRODUCTION. 770 by himself or under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was cor- rectly stated in the writing. But in such case, the writing must be produced and may be seen by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollec- tion of the particular facts, but such evidence must be received with caution. Inspection of writing— shown to witness: Sec. 2054. § 2048. The opposite party may cross-exam- ine the witness as to any facts stated in his direct examination or connected therewith, and in so do- ing may put leading questions, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examina- tion. Stopping further testimony: Sec. 2044. § 2049. The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made iit other times statements inconsistent with his present testimony, as provided in section two thousand and fifty-two. § 2050. A witness once examined cannot be re- examined as to the same matter without leave of the court, but he mny be re-examined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness can- not be recalled without leave of the court. Leave is granted or withheld, in the exercise of a sound discretion. 771 MANNER OF PRODUCTION. §§ 2051-2054 Recalling witness— discretion of court, sec. 607, subd. 3. § 2051. A witness may be impeached by the party against Avhom he was called, by contradic- tory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony. Compare sec. 1847. Good character, showing after impeachment: Sec. 2053. Falsus in uno falsus in omnibus: See sec. 2061. § 2052. A witness may also be impeached by evidence that he has made, at other times, state- ments inconsistent with his present testimony; but before this can be done the statements must be related to him. with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, al- lowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. § 2053. Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the Issue involves his character. § 2054. Whenever a writing is shown to a wit- ness, it may be inspected by the opposite party, and if proved by the witness must be read to the jury before his testimony is closed, or it cannot be read except on recalling the witness. Writing to refresh memory: Sec. 2047. I 2061 EFFECT OF EVIDENCE. 772 TITLE IV. OP THE EFFECT OF EVIDENCE. § 2061. Jury judges of effect of evidence, but to be in- structed on certain points. § 2061. The jury, subject to the control of the court, in the cases specified in tliis Code, are the judges of the effect or value of evidence address- ed to them, except when it is declared to be con- clusive. They are, however, to be instructed by the court on all proper occasions— 1. That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to thq rules of evidence. 2. That they are not bound to decide in con- formity with the declarations of any number of Avitnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds. 8. That a witness false in one part of his testi- mony is to be distrusted in others. 4. That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution. 5. Tlint in civil cases the affirmative of the is- sue must be proved, and when tlie evidence is conti-adictory the d(»cision must be made accord- ing to Ihe preponderance of evidence: that in criminal cases guilt must be established beyond a reasonable doubt. 0. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the jwwer of one side to produce, and of the other to contradict; and, therefore, 773 RIGHTS AND DUTIES OF WITNESSES. § 2064 7. That if weaker and less satisfactory evidence is offered, wlien it appears tliat stronger and more satisfactory was witliin tlie power of the party, the evidence offered should be viewed with dis- trust. Province of jury— questions of fact: Sec. 2101. Credibility of witnesses: See sec. 1847, ante. Province of court: Compare sec. 60S and sec. 2102. Admissions: See sec. 1870, subd. 2 and note. TITLE V. OF THE RIGHTS AND DUTIES OF WITNESSES. § 2064. Witnesses bound to attend when subpoenaed. § 2065. Witnesses bound to answer questions. § 20fi6. Right of witnesses to protection. § 2067. Witnesses protected from arrest when attending. or going or returning. § 2068. Arrest to be made void, and party making arrest liable, etc. § 2069. To make affidavit if arrested. § 2070. Court to discharge witness from arrest. § 2064. A witness, served with a subpoena, must attend at the time appointed, with any pa- pers under his control required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. Subpoena: Sees. 1985, 1991. Answering questions: Sec. 20G5. Witnesses— competency, etc., sees. 1878-1884. Examination, impeachment, refreshing mem- ory, etc.: Sees. 2042-20.54. Power to compel attendance: Sees. 128, 177-178. Change of place of holding court, effect of: Sec. 143. Contempt: Sees. 1209, 1219. §§ 2065-2068 RIGHTS, ETC., OF WITNESSES. 774 § 2065. A witness must answer questions le- gal and pertinent to the matter in issue, though his answer may establish a claim against him- self; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. Contempt: Sees. 1209, 1219. § 2066. It is the right of a witness to be pro- tected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of jus- tice require it; to be examined only as to matters legal and pertinent to the issue. Compare sec. 2044. Detention of witness— unreasonable, constitu- tional prohibition of: See Const. Cal, art. 1, sec. 6, Unreasonable detention forbidden: Const. Cal., art. 1, sec. 6. § 2067. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, ref- eree, or other person, in a case where the diso- bedience of the witness may be punished as a con- tempt, is exonerated from arrest in a civil ac- tion while going to the place of attendance, nec- essarily remaining there and returning therefrom. § 2068. The arrest of a witness, contrary to the preceding section, is void, and when willfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages Avhich may be assessed against him, and is also liable to an action at the suit of the party serving the wit- 775 RIGHTS, ETC., OF WITNESSES. §§ 2069, ^. uess with a subpoena, for the damages sustained by him in consequence of the arrest. Contempt of court: See sees. 1209-1222. § 2069. An officer is not liable to the party for making the arrest in ignorance of the facts creat- ing the exoneration, but is liable for any subse- quent detention of the party, if such party claim the exemption and mali:e an affidavit stating — 1. That he has been served with a subpoena to attend as a witness before a court, officer, or oth- er person, specifying the same, the place of at- tendance, and the action or proceeding in which the subpoena was issued; and, 2. That he has not thus been served by his own procurement, with the intention of avoiding an arrest; 3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and exonerates him from liability for discharging the witness when arrested. § 2070. The court or officer issuing the sub- poena, and the court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section two thousand and sixty-seven. If the court have ad- journed before the arrest, or before application for the discharge, a judge of the court may grant the discharge. [Amendment approved April 16. 1880; Amendments 1880, p. IIG. In effect April 10, 1880.] §§ 2074, 2075 EVIDENCE, ETC. 776 TITLE VI. OF EVIDENCE IN PARTICULAR CASES, AND MISCELLA. NEOUS AND GENERAL PROVISIONS. Chap. 1. Evidence in particular cases, §§ 2074- 2079. II. Proceedings to perpetuate testimony, §§ 2088-2U89. III. Administration of oaths and affirma- tions, §§ 2093-2095. IV. General provisions, §§ 2101-2104. CHAPTER I. EVIDENCE IN PARTICULAR CASES. § 2074. An offer equivalent to payment. § 2075. Whoever pays entitled to receipt. § 2076. Objections to tender must be specified. § 2077. Rules for construing description of lands. § 2078. Compromise offer of no avail. § 2079. In action for divorce, admission not sufficient. § 2074. An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property. Offer to compromise: Sees. 997, 2078. Offer of performance: See Civ. Code, sees. 1485 et seq. § 2075. Whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper sig- nature to such receipt as a condition of the pay- ment or delivery. Debtor entitled to: Civ. Code, sec. 1499. 777 EVIDENCE, ETC. §§2076, 2077 § 2076. The person to whom a tender is made, must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and if the ob- jection be to the amount of money, the terms of the instrument, or the amount or kind of prop- erty, he must specify the amount, terms, or liind which he requires, or be precluded from objecting afterward. Objections must be stated: Civ. Code, sec. 1501. § 2077. The following are the rules for con- struing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it: 1. Where there are certain definite and ascer- tained particulars in the (lescri])tion. tlie addi- tion of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned partic- ulars: 2. When permanent and visible or ascer- tained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are para- mount; 3. Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both; 4. When a road, or stream of water not naviga- ble, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under an- other title: .5. When tide-water is the boundary the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the §§ 2078, 2083 TO PERPETUATE TESTIMONY. 778 rights of the grantor to low-water mark, are in- cluded in the conveyance; 6. When the description refers to a map, and that reference is inconsistent with other particu- lars, it controls them if it appear that the parties acted with reference to the map; otlierwise, the map is subordinate to other definite and ascer- tained particulars. [Amendment approved March 24, 1874; Amendments 1873-4, p. 390. In effect July 1, 1874.] Description in conveyance — construction of: Sec. 18G0. Construction of instruments, generally: Sec. 1859. § 2078. An offer of compromise is not an ad- mission that anything is due. Offer to compromise— after suit brought: Sec. 997. § 2079. In an action for divorce on the ground of adultery, a confession of adultery, whether in or out of the pleadings, is not of itself sufficient to justify a judgment of divorce. Confessions— as evidence generally: Sec. 1870, subd. 2. CHAPTER II. PROCEEDINGS TO PERPETUATE TESTIMONY. § 2083. Evidence may be perpetuated. § 2084. Manner of application for order. 5 2085. Notice of time and place to be given. § 2086. Manner of taking the deposition. § 2087. Deposition to be filed. § 2088. When the evidence may be produced. § 2089. Effect of the deposition. § 2083. The testimony of a witness may bo taken and perpetuated as provided in this chap- ter. 779 TO PERPETUATE TESTIMONY. §§ 2084, 2085 § 2084. The applicaut must produce to a judge of the superior court a petition, verified by the oath of the applicant, stating: 1. That the applicant expects to be a party to an action in a court in this State, and, in such case, the names of the persons whom he expects will be adverse parties; or, 2. That the proof of some fact is necessary to perfect the title to property in which he is inter- ests!, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or, if anticipated, he may not know the parties to such suit; and, 3. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. The judge to whom such petition is presented must malve an order al- lowing the examination, and designating the of- ficer before whom the same must be taken, and prescribing the notice to be given, which notice, if the parties expectant are known and reside in this State, must be personally served, and if un- known, such notice must be served on the clerk of the county where the property to be affected by such evidence is situated, or the judge making the order resides, as may be directed by him, and by publication thereof in some newspaper, to be designated by the judge, for the same period re- quired for the publication of summons. The judge must also designate in Ids order the clerk of the county to w^hom the deposition must be re- turned when taken. [Amendment approved April 16, 1880; Amendments 1880. p. 110. In effect April 10, 1880.] § 2085. The person a])]K)inted by the judge to take the depositions is authorized, if a resident of this State, on receiving a copy of the order of the judge, and of the notice prescribed in the last sec- tion, with proof of its personal service or publi- §§ 2086, 2087 TO PERPETUATE TESTIMONY. 780 cation— or, if a resident without the State, on receiving the commission mentioned in the next section, with proof of lilie service of publication of the notice— to talie the deposition of the wit- ness named in the order of the judge, or in the commission, or, if more than one witness is thus named, of such of them as appear before him, at the time designated, and the talking of the same may be continued from time to time. [Amend- ment approved jNIarch 24, 1874; Amendmefuts 1873-4, p. 392. In effect July 1, 1874.] § 2086. The examination must be by question and answer, and if the testimony is to be fallen in another State, it must be taken upon a com- mission to be issued by the judge allowing tlie examination, under the seal of the court of which he is judge, and upon interrogatories, to be set- tled in the same manner as in cases of deposi- tions fallen under commission in pending actions, unless the parties expectant, if known, otherwise agree. If such parties are unknown, notice of the settlement of the interrogatories shall be published in some newspaper for such time as the judge may designate. The deposition, when com- pleted, must be carefully read to and subscribed by the witness, then certified by the officer or person talking the same, and shall then be sealed up and delivered or transmitted to the clerk of the county designated in the order of the judge allowing the examination, who shall file the same wlien received. The judge allowing the examina- tion shall file with the clerk the order for the ex- amination, tlie petition on which the same was granted, with proof of service of the order and notice. [Amendment approved March 24, 1874; Amendments 1873-4, p. 392. In effect July 1, 1874.] § 2087. The petition and order, and papers fil- ed l»y the judge as provided in section two thou- 781 TO PERPETUATE TESTIMONY. §§ 2088, 2089 sand and eighty-six, or a certified copy thereof, are prima facie evidence of tlie facts stated there- in to show compliance Avith the provisions of this chapter. [Amendment approved March 24, 1874; Amendments 1873-4, p. 393. In effect July 1, 1874.] § 2088. If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any par- ties wherein it may be material to establish the facts which such depositions prove, or tend to prove, upon proof of the death or insanity of the witnesses, or that they cannot be found, or are un- able, by reason of age or other infirmity, to give their testimony, the depositions or copies thereof may be used by either party, subject to all legal objections; but if the parties attended at the ex- amination, no objection to the form of an inter- rogatory can be made at the trial, unless the same was stated at the examination. [Amendment ap- proved March 24, 1874; Amendments 1873-4, p. 393. In efCect July 1, 1874.] § 2089. The deposition so talvcn and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objection to the witness or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if he were exam- ined orally at the trial. Code Civ. Proc— 66. §§ 2093-2095 OATHS AND AFFIRMATIONS. 782 CHAPTER III. ADMINISTRATION OF OATHS AND AFFIRMATIONS. § 2093. Judicial and certain ofRcors authorized to adminis- ter oaths. § 2094. Form of ordinary oath to a witness. § 2095. Form may be varied to .suit witness' belief. § 2096. Same. § 2097. Any person who prefers it may declare or affirm. § 2093. Every court, every judge or clerk of any court, every justice and every notary public, and every officer or person authorized to talie tes- timony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations. Administration of oaths— by whom: Sec. 128, subd. 7; sec. 177, subd. 4; Polit. Code, sees. 1028, 4118, 4103. § 2094. An oath, or affirmation, in an action or proceeding, may be administered as follows, the person who swears, or affirms, expressing his as- sent when addressed in the following form: "You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter) pending between and , shall be the truth, the whole truth, and nothing but the truth, so help you God." [Amendment ap- proved March 24, 1874; Amendments 1873-4, p. 393. In effect July 1, 1874.] § 2095. Whenever the court before which a ])erson is offered as a witness is satisfied that he has a peculiar mode of swearing, connected with, or in addition to the usual form of administration, which, in his opinion, is more solemn or obliga- tory, the court may in its discretion, adopt that mode. 783 GENERAL PROVISIONS. §§ 2096, 2102 § 2096. When a person is sworn who believes in any other than the christian religion, he may- be sworn according- to the peculiar ceremonies of his religion, if there be any such. § 2097. Any person who desires it may, at his option, instead of taking an oath, malie his sol- ^ emn affirmation or declaration, by assenting, when addressed in the following form: "You do solemn- ly affirm (or declare) that," etc., as in section two thousand and ninety-four. CHAPTER IV. GENERAL PROVISIONS. 5 2101. Questions of fact to be decided by the jury, and the evidence addressed to them. § 2102. Questions of law addressed to the court. § 2103. Questions of fact by court or referee. § 2104. Moneys paid into court. § 2101. All questions of fact, where the trial is by jury, other than those mentioned in the next section, are to be decided by the jury, and all evi- dence thereon is to be addressed to them, except when otherwise provided by this Code. [Amend- ment approved March 24, 1874; Amendments 1873-4, p. 394. In effect July 1, 1874.] Compare: Sec. 2061. Effect of evidence, for jury: Sec. 2001. Fraudulent intent: Civil Code, sec. 3442. § 2102. All questions of law, including the ad- missibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings, and other rules of evidence, are to be decided by tlie court, and all discussions of law addressed to it. Whenever the Icnowledge of the court is, by this Code, made evidence of a §§ 2103, 2104 GENERAL PROVISIONS. 784 fact, the court is to declare such knowledge to the jury, who are bound to accept it. Knowledge of the court— scope of judicial no- tice: Sec. 1875. § 2103. The provisions contained in this part of the Code respecting the evidence on a trial be- fore a jury, are equally applicable on the trial of a question of fact before a court, referee, or oth- er officer. § 2104. Whenever moneys are paid into or de- posited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially authorized by his appointment in writing to receive the same. He must, unless oth- erwise directed by law, deposit it with the county treasurer, to be held by him subject to the order of the court. The treasurer shall keep each fund distinct, and open an account with each. Such appointment shall be filed with the county treas- urer, who shall exhibit it, and give to each person applying for the same a certified copy of the same. It shall be in force until a revocation in writing is filed Avith the county treasurer, who shall thereupon write "revoked," in inlv across the face of the appointment. [New section approved March 24, 1874; Amendments 1873-4, p. 394. In effect July 1, 1874.] Corresponding provision: Sec. 573. The foregomg noAv section, and many of the fore- going amendments to the Code of Civil Procedure, are taken from "An act to amend the Code of Civil Procedure." approved March 24, 1874: Amend- ments 1873-4, 279. The amendatory act contained two other sections, in reference to the effect of the new provisions, as follows: 785 GENERAL PROVISIONS. 3? 2103, 2104 Repealing clause— Rights preserved. Sec. 253. All provisious of law inconsistent with the provisions of this act are hereby repealed; but no rights acquired, or proceedings taken under, the provisions repealed shall be impaired, or in any manner affected by this repeal; and whenever a limitation or period of time prescribed by such re- pealed provisions for acquiring a right or barring a remedy, orfor any other purpose, has begun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time which shall have run when this act takes ef- fect shall be deemed part of the time prescribed by this act. Sec. 254. This act takes effect on the first day of July, eighteen hundred and seventy-four. APPENDIX. APPEALS. An Act to provide for the taking of Appeals from Judgments or Orders given or made in tlie Courts existing on and before the first day of January, eighteen hundred and eighty. Appeals from judgments existing before Janu- ary, 1880. Section 1. In any case where judgment had been rendered, given, or made, or an appealable order had been made or entered, before twelve o'cloclv noon of the first day of January, eighteen hundred and eighty, in or by any court which was in existence on and before the first day of January, eighteen hundred and eighty, from which any party interested had, at and imme- diately before the constitution went into effect, a right of appeal to the Supreme Court or the county court, the party so interested shall have the right to appeal from such judgment or order to the present Supreme Court, or to the Superior Court of the county, in the same manner and within the same time after the passage of this act as was before authorized and provided by law for appeal to the then existing Supreme Court or county court; and upon such appeal the appel- late court shall have tlie same jurisdiction to hear and determine the- matter or cause as the former court did have in like cases. 788 APPENDIX. Sec. 2. This act shall take effect and be in force from and after its passage. [Approved April 8, 18S0; 1880, 24 (Ban. ed. 121).] BONDS. An Act to facilitate the giving of Bonds required by Law. § 1. Incorporations for giving bonds. § 2. When corporation not accepted, t: § 3. Duty of insurance commissioner. Incorporations for giving bonds. Section 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sureties, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or under- taking specified, any head of department, board, court, judge, ofiicer, or other person who is now or shall hereafter be required to approve the suf- ficiency of any such bond or undertaking, or the sureties thereon, may accept as sole and sufficient surety on such bond or undertaking any corpo- ration incorporated under the laws of any State of the United States for the purpose of making or guaranteeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this State regulating the admission of such corporation to transact such business in this State; and all such coii^ora- tions are hereby vested with full power and au- thority to make and guarantee such bonds and undertakings, and shall be subject to all the lia- bilities and entitled to all the rights of natural persons sureties. APPENDIX. 789 When corporation not accepted. Sec. 2. It is further provided that the guaranty of any such company shall not be accepted by heads of departments or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascertained in the man- ner provided in section three of this act. . Duty of insurance commissioner. Sec. 3. AVhenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily San Francisco paper, and thenceforth, and until such deficiency is paid up, such company shall not do business under the provisions of this act. And in estimating the condition of any such com- pany, under the provisions of this act, the com- missioner shall allow as assets only such as are authorized under existing laws at the time, and shall charge as liabilities, in addition to eighty per cent of the capital stock, all outstanding in- debtedness of the company, and a premium re- serve equal to fifty per centum of the premiums charged by said company on all risks then in force. Nothing herein contained shall apply to bonds given in criminal cases. Sec. 4. This act shall take effect immediately. [Approved March 12, 1885; 188.5, 114.] 790 APPENDIX. COSTS. An Act concerning the Costs in Civil Actions for Serving Summonses and Subpoenas. Section 1. In all civil actions, when a summons or subpoena is served by a person other than the sheriff, the person so serving shall be allowed by the court issuing the process such sum as the court may thinlv proper, not exceeding the amount allowed sheriffs by law. Sec. 2. This act shall talie effect from and after its passage. [Approved March 10, 1891; Stats. 1891, p. 56.] Act concerning Costs in Actions of Libel and Slander, see post, p. 86 COURTS. An Act to provide for the appointment by the Supreme Court of three commissioners, to be known as Commissioners of the Supreme Court, and to appoint a secretary therefor, to relieve said Court from the overburdened con- dition of its Calendar, and to provide for the compensation of said commissioners and secre- tary. § 1. Supreme court commission § 2. Secretary. § 3. Appropriation. Section 1. The Supreme Court of the State of California, immediately upon the taking effect of this act, shall appoint three persons of legal learn- APPENDIX. 791 iiig and persoual worth as commissioners of said court. It shall be the duty of said commissioners, under such rules and regulations as said court may adopt, to aid and assist the court in the per- formance of its duties, and in the disposition of the numerous causes now pending in said court undetermined. The said commissioners shall hold ofiice for the term of four years from and after their appointment, during which time they shall not engage in the practice of the law. They shall each receive a salary equal to the salary of a judge of said court, payable at the same time and in the same manner. Before entering upon the discharge of their duties they shall each take an oath to support the Constitution of the United States and the Constitution of the State of Cali- fornia, and to faithfully discharge the duties of the office of commissioner of the Supreme Court to the best of their ability. The said court shall have poAver to remove any and all members of said commission at any time by an order entered on the minutes of said court, and all vacancies in said commission shall be filled in lil^e manner. Sec. 2. Upon the appointment of said commis- sioners, as in this act provided, said court is here- by authorized to appoint a secretary for such commission, who shall hold office during the pleas- ure of the court, not to exceed the term of said commission, and who shall have a salary of two hundred dollars per mouth, payable at the same time and in the same manner as said commission. Sec. 3. The sum of forty thousand eight hun- dred dollars is hereby appropriated out of any money that is or may be in the general fund not otherwise appropriated, for the purpose of paying the salary of said commission and secretary, for the thirty-sixth, thirty-seventh, and thirty-eighth fiscal years; and the controller is authorized to 792 APPENDIX. draw monthly warrants upon the State treasury in favor of said commissioners and secretary, in the sum of five hundred dollars for each of said commissioners, and in the sum of two hundred dollars for said secretary. [Approved March 12, iS8r>.] An Act to provide for the appointment by the Su- preme Court of five Commissioners, to be known as Commissioners of the Supreme Court, and to appoint a Secretary therefor, to relieve said Court from the overburdened con- dition of its Calendar, and to provide for the compensation of said Commissioners and Sec- retary, and to appropriate money therefor. § 1. Supremo court commission § 2. Secretary. § 3. Appropriation. Supreme court commissioners— Salary. Section 1. The Supreme Court of the State of California shall immediately, upon the expiration of the term of oflice of the present Supreme Court commissioners, appoint five persons of legal learn- ing and personal worth as commissioners of said court. It shall be the duty of said commissioners, under such rules and regulations as said court may adopt, to assist in the performance of its du- ties, and in the disposition of the numerous causes now pending in said court undetermined. The said commissioners shall hold office for the term of four years from and after their appointment, dur- ing which time they shall not engage in the prac- tice of the law. They shall each receive a salary equal to tJie salary of a judge of said court, pay- able at the same time and in the same manner. Before entering upon the discharge of their duties, they shall each take an oath to support the con- APPENDIX. 793 stitution of the Uuited States and the constitu- tion of the State of California, and to faithfully discharge the duties of the ottice of commissioner of the Supreme Court to the best of their ability. The said court shall have power to remove any and all members of said commission at any time by an order entered on the minutes of said court, and all vacancies in said commission shall be filed in lilie manner. Secretai-y. Sec. 2. Upon the appointment of said commis- sioners, as in this act provided, said court is here- by authorized to appoint a secretary for such com- mission, who shall hold ottice during the pleasure of the court, not to exceed the term of said com- mission, and who shall have a salary of two hun- dred dollars per month, payable at the same time and in the same manner as said commission. Appropriation. Sec. 3. The sum of sixty-seven thousand seven hundred dollars is hereby appropriated out of any money that is or may be in the State treasury not otherwise appropriated, for the purpose of paying the salary of said commission and secretary for the remainder of the fortieth fiscal year, and for the forty -first and forty-second fiscal years; and the controller is hereby authorized to draw month- ly warrants upon the State treasury in favor of said commissioners and secretary in the sum of five hundred dollars for each of said commission- ers, and in the sum of two hundred dollars for said secretary. Sec. 4. This act shall tal^e effect from and after its passage. [Approved February 15, 1889; 1889, 13.] Code Civ. Proc— 67. 794 APPENDIX. Au Act to provide for the appoiutment by the Su- preme Court of five Commissioners, to be known as Commissioners of the Supreme Court, and to appoint a Secretary therefor, to assist said Court in the performance of its duties and in the disposition of numerous causes pending in said Court, and to provide for the compen- sation of said Commissioners and Secretary, and to appropriate money therefor. ;■ . § 1. Supreme court commission § 2. Seciulaiy. § 3. Appropriation. Section 1. The Supreme Court of the State of California shall, immediately upon the expiration of the term of office of the present Supreme Court commissioners, appoint five persons of legal learn- ing and personal worth as commissioners of said court. It shall be the duty of said commissioners, under such rules and regulations as said court may adopt, to assist in the performance of its du- ties and in the disposition of the numerous causes pending in said court. The said commissioners shall hold office for the term of four years from and after their appointment, during which time they shall not engage in the practice of law. They shall each receive a salary equal to the salary of a judge of said court, payable at the same time and in the same manner. Before entering upon the discharge of their duties, they shall each talie an oath to support the Constitution of the United States and the Constitution of the State of Cali- fornia, and to faithfully discharge the duties of the office of commissioner of the Supreme Court to the best of their ability. The said court shall have power to remove any and all members of said commission at any time, by an order entered APPENDIX. 795 on the mluutes of said court, and all vacancies in said commission shall be filled in like manner. S'ic. 2. Upon the appointment of said commis- sioners, as in ihis act provided, said court is here- by authorized to appoint a secretary for such com- mission, who shall hold office during the pleasure of the court, not to exceed the term of said com- mission, and who shall have a salary of two hun- dred dollars per month, payable at the same time and in the same manner as said commission, which sum shall be in full compensation for all services rendered by him in the discharge of his duties. Sec. 3. The sum of sixty-seven thousaid dol- lars is hereby appropriated out of any money that is or may be in the State treasury not otherwise appropriated, for the purpose of paying the salary of said commission and secretary for the remain- der of the forty-foui'th fiscal year, and for the for- ty-fifth and forty-sixth fiscal years; and the con- troller is hereby authorized to draw monthly war- rants upon the State treasury in favor of said commission and secretary, in the sum of five hun- dred dollars for each of said commissioners, and the sum of two hundred dollars for said secretary. Sec. 4. This act shall tal^e effect from and after its passage. [Approved January 31, 1893; Stats. 1S93, p. 1.] 796 APPENDIX. An Act to provide for the appointment by the Su preme Court of five Commissioners, to be known as Commissioners of the Supreme Court, to appoint a Secretary, and to appropri- ate money therefor. § 1. Supreme court commission § 2. Secretary. § 3. Appropriation. Section 1. The Supreme Court of the State of California shall, immediately upon the expiration of the term of office of the present Supreme Court commissioners, appoint five persons of legal learn- ing and personal Avorth as commissioners of said court. It shall be the duty of said commissioners, under such rules and regulations as said court may adopt, to assist in the performance of its duties, and in the disposition of the numerous causes now pending in said court undetermined. The said commissioners shall hold office for the term of two years from and after their appointment, during which time they shall not engage in the practice of the law. They shall each receive a salary equal to the salary of a .iudge of said court, payable at the same time and in the same manner. Before entering upon the discharge of their duties, they shall each talce an oath to support the Constitu- tion of the United States and the Constitution of the State of California, and to faithfully discharge I he duties of the office of commissioner of The Su- preme Court to the best of their ability. The said court shall have power to remove any and all members of said commission at nny time, by an order entered on the minutes of said court, and all vacancies in said commission shall be filled in like manner. Sec. 2. Upon the appointment of said commis- APPENDIX. 797 sioners, as in this act provided, said court is here- by aiuliorized to appoint a secretary for such commission, who sliall hold office during the pleas- ure of the court, not to exceed the term of said commission, and who shall have a salary of tw^o hundred dollars per month, payable at the same time and in the same manner as said commission. Sec. 3. The sum of sixty-seven thousand dol- lars is hereby appropriated out of any money that is, or may be, in the State treasury not otherwise appropriated, for the purpose of paying- the salary of said commission and secretary for the remain- der of the forty-eighth fiscal year, and for the forty-ninth and fiftieth fiscal years; and the con- troller is hereby authorized to draw monthly war- rants upon the State treasury in favor of said commissioners and secretary in the sum of five hundred dollars for each of said commissioners, and in the sum of tw^o hundred dollars for said secretary. Sec. 4. This act sliall take effect from and after its passage. [Became a law, under constitutional provision, without governor's approval, March 2, 1897.] APPENDIX. All Act to provide that in all Cities of over ten tliousaud inhabitants, the Mayor, or other chief executive, shall not be required to act as City Judge,, or ex officio Judge of the City Court, or as Justice of the Peace; to provide for the abolishment of such City Court, and for the transfer of the business and properties of said City Court to the Justice of the Peace of such Cities, and to require such Justice to finish such business, and to repeal all special acts in conflict herewith. § 1. Duties of mayor. § 2. Transfer of books, etc., to justice. Defining duties of mayor— Cities over ten thou- sand inhabitants. Section 1. In cities of over ten thousand inhab- itants, the mayor, or other chief executive thereof, shall not be required to act as justice of the peace, or to hold a city court, or to act as ex officio city judge, or to perform any of the duties of judge of the city courts; and all city courts created by law to be held by such mayor, or other chief exe- cutive of such cities, are hereby abolished. Transfer of boolis, etc., to justice of the peace. Sec. 2. All books, dockets, files, documents, pa- pers, and properties of every kind whatsoever be- longing to such city court, shall be transferred to the justice of the peace of said city, provided foi- by law, to hold the police court of such city, or it there be no such police court therein, then to such justice of the peace therein as may be designated for such purpose by the mayor thereof; and such justice of the peace shall have jurisdiction of all matters heretofore brought in such city court, or of which said city court had jurisdiction"; a^ri it APPENDIX. 799 shall be his duty to collect all fines and charges required by law to be collected by such city court, and to account for and pay the same over to the treasurer of said city in the same manner, and at the same times and under such terms and con- ditions, as heretofore required of and by said city court. Said justice of the peace shall complete all such untiuished business as may be transferred to him from said city court under the provisions hereof, in the same manner as heretofore required of said city court. Sec. 3. The provisions of all acts and every spe- cial act of the legislature which conflict in any wise with this act are each and every one hereby repealed. Sec. 4. This act shall take effect and be in force at once after its passage. [Approved March 8, 1887; 1887, 51.] An Act to confer upon the Superior Court of each County, and the Judge thereof, the powers heretofore possessed by tlie District, County, and Probate Courts of such county, and the Judges thereof. § 1. New courts. § 2. Trials to be continued. Authority of old courts and judges vested in new courts and judges. Section 1. In all cases in which, on the first day of January, eighteen hundred and eighty, any au- thority or jurisdiction was by law vested in the county or probate court of any county, or in the judge thereof, or in any district court of such county, or in the judge thereof, such jurisdiction and authoritj' sliall hereafter, while such law con- 800 APPENDIX. tinues in force, be vested in and exercised by the Superior Court of such county, or by a judge thereof. Trials to be continued in certain cases. Sec. 2. If any judge of the Superior Court of any county was the judge of the county, probate, or district court in and for said county on the first day of January, eighteen hundred and eighty, and any cause, proceeding, or motion, wholly or partially tried before him remains undecided, the Superior Court, when presided over by him, may resume the consideration or trial of such cause, proceeding, or motion, at the stage where it was suspended in such probate, county, or district court, and may complete such trial or hearing, or determine such cause, motion, or proceeding, as if the same had first been brought or made in such Superior Court. Sec. 3. This act shall take effect immediately. [Approved April 3, 1880; 1880, 23 (Ban. ed. 115).] An Act authorizing the judges of the Superior Court in all Counties, and Cities and Counties, having a population of two hundred thousand inhabitants and over, to appoint a Secretary. Section 1. In all counties, and cities and coun- ties, having a population of two hundred thousand inhabitants and over, the judges of the Superior Court in such counties, and cities and counties, may appoint a secretary, who shall receive a sal- ary of one hundred and fifty (.$150) dollars per month, and hold ofKce at their pleasure, and shall perform such duties as may be required of him by the court or the judges thereof. Snid salary shall be audited, alloAved, and paid out of the general fund of such counties, and cities and counties. APPENDIX. 801 Sec. 2. This act shall take effect from and after its passage. 'Approved March 2(3, 181)5; Stats. 1895, 98.] An Act to provide one additional Judge of the Su- perior Court of the County of Alameda. Section 1. Within ten days after the passage of this act the governor shall appoint one additional judge of the Superior Court of the county of Ala- meda, who shall hold office until the first Monday after the first day of January, A. D. eighteen hun- dred and ninety-five; and at the next general elec- tion one judge of said court, in addition to the present number provided by law for said county, shall be elected, to hold office for the term pre- scribed by the constitution and by law. Sec. 2. The salary of said one additional judge shall be the same in amount, and shall be paid at the same time and in the same manner as that of the other judges of the Superior Court of said county now authorized by law. Sec. 3. This act shall take effect immediately from and after its passage. [Approved February 13, 1893; Stats. 1893, 3.] An Act to increase the number of Judges of the Superior Court of the County of Fresno, State of California, and for the appointment of an additional Judge. One additional judge. Section 1. The number of the judges of the Superior Court of the county of Fresno, State of California, is hereby increased from one to two. Governor appoint— Term of office. 802 APPENDIX. Sec. 2. Within ten days after the passage of this act, the governor shall appoint one additional judge of the Superior Court of the county of Fres- no, State of California, who shall hold office until the lirst Monday after the first day of January, A. D. eighteen hundred and eighty-nine. At the next general election, one judge of the Superior Court of said county shall be elected in said coun- ty, who shall be the successor of the judge ap- pointed hereunder, to hold office for the term pre^ scribed by the constitution and by law. Salary. Sec. 3. The salary of said additional judge shall be the same in amount, and paid at the same time and in the same manner, as the salary of the other judge of the Superior Court of said county now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved March 8, 1887; 1887, 57.] An Act to facilitate the disposition of business in the Superior Court of Fresno County, by the appointment and election of a third Judge of said Court. Section 1. The number of judges of the Supe- rior Court of the county of Fresno Is hereby in- creased from two to three, subject to the right of the legislature to repeal this act, as hereinafter provided. Sec. 2. Within ten days after the passage of this act, the governor shall appoint one additional judge of the Superior Court of the county of Fres- no, State of California, who shall hold office until the first Monday after the first day of January, APPENDIX. 803 A. D. eighteen luindred and ninety-five. At the next general election a judge of the Superior Court of said county of Fresno shall be elected in said county to succeed the judge so appointed, and the judge so elected shall hold such othce for the term prescribed by the constitution and by law, subject to the right of the legislature of said State, hereby reserved, to abolish the office of said third judge whenever, in the judgment of said legislature, the public interest no longer re- quires it. Sec. 3. The salary of said additional judge shall be the same in amount, and shall be paid at the same time and in the same manner, as the salary of the other judges of said court in said county, as now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved March 10, 1893; Stats. 1893, p. 125.] An Act to reduce the number of Judges of the Superior Court of the County of Fresno from three to two. Section 1. The number of judges of the Supe- rior Court of the county of Fresno is hereby re- duced from three to two. Sec. 2. This act shall take effect at the expira- tion of the term of the judge of said court whose term first expires, and in case a vacancy occur in any term prior to the first Monday after tne first dny of .lanunry. eighteen hundred and ninety-sev- en, this act shall take effect immediately. Sec. 3. All acts and parts of acts in conflict with the provisions of this act are hereby repeal- ed. [Approved March 20, 1895; Stats. 1895, p. 15(5.1 8(H APPENDIX. An Act to provide for the appointment and elec- tion of one additional Judge for the County of Humboldt. Section 1. Within ten days after the passage of this act the governor shall appoint one additional judge of the Superior Court of the county of Hum- boldt, vrho shall hold otiice until the first Monday after the first day of January, Anno Domini eight- een hundred and ninety-seven; and at the next general election, and at the general election every six years thereafter, one judge of said court in ad- dition to the present number provided by law for said county shall be elected, to hold office for the term prescribed by the constitution and by law. Sec. 2. The salary of said additional judge shall be the same in amount, and shall be paid at the same time and in the same manner as that of the other judges of the Superior Court of said county now authorized by law. Sec. 3. This act shall take effect immediately from and after its passage. [Approved March 8» 1895; Stats. 1895, p. 27.] An Act to increase the number of Judges of the Superior Court of the County of Los Angeles. State of California, and for the appointment of such additional Judges. Appointment of superior judges for Los Angeles County. Section 1. The nuin1)er of judges of the superior court of the county of Los Angeles. State of Cali- fornia, is hereby increased from four to six. APPENDIX. 805 Sec. 2. Within ten days after the passage of this act, the Governor shall appoint two additional judges of the superior court of the county of Los Angeles, State of California, who shall hold otfice until the first Monday after the first day of Janu- ary, A. D. eighteen hundred and ninety-one. At the next general election, two judges of the super- ior court of said county shall be elected in said county, who shall be successors of the judges ap- pointed hereunder, to hold office for the terms pre- scribed in the constitution and by law. Salaries. Sec. 3. The salaries of such additional judges shall be the same in amount, and be paid in the same manner and at the same time, as the salaries of the other judges of the superior court of said county now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved March 11, 1889; 1889, 130.] An Act to increase the number of Judges of the Superior Court of the County of Los Angeles, State of California, and for the appointment of such additional Judges, Two additional judges of superior court for Los Angeles County. Section 1. The number of judges of the superior court of the county of Los Angeles, State of Cali- fornia, is hereby increased from two to four. Governor to appoint, Avhen. Sec. 2. Within ten days after the passage of this act, the Governor shall appoint two additional judges of the superior court of the county of Los Angeles, State of California, who shall hold of- fice until the first Monday after the first daj^ of Code Civ. Proc— 68. 806 APPENDIX. Jauuary, A. D. eighteen huudred and eighty-nine. At the next general election, two judges of the superior court of said county shall be elected in said county, who shall be successors of the judges appointed hereunder, to hold ottice for the term prescribed by the constitution and by law. Salaries. Sec. 3. The salaries of said additional judges shall be the same in amount, and be paid at the same time and in the same manner, as the salar- ies of the other judges of the superior court of said county now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved February 7, 1887; 1887, 1.] An Act ot provide an additional Judge of the Su- perior Court for the County of Mono. Additional judge of the superior court of Mono county. Section 1. Within ten days after the passage of this act the Governor shall appoint an additional judge of the superior court of the county of Mono, who shall qualify forthwith, and shall hold said office until the first Monday after the first day of January, A. D. eighteen huudred and eighty-one; and at the next general election a judge of the su- perior court of said county shall be elected, to bold office for the term of four years from the first Mon- day after the first day of January, A. D. eighteen hundred and eighty-one. Salary. Sec. 2. The salary of said additional judge shall be the same in amount, and sliall be paid in the same manner, as that of the judge of the superior (Miirt of said coniity now autliorized by law. APPENDIX. 807 Sec. 3. This act shall be in force from and after its approval by the Governor. [Approved April 16, 1880; 1880, 99 (Ban. ed. 335); repealed March 9, 1883; 1883, 62.] An Act to provide one additional Judge of the Su- perior Court of the County of Sacramento. Section 1. The number of judges of the superior court of the county of Sacramento is hereby in- creased from two to three. Sec. 2. Within ten days after the passage of this act the Governor shall appoint one additional judge of the superior court of tlie county of Sacra- mento, who shall hold office until the first Monday after the first day of January, Anno Domini eigh- teen hundred and ninety-seven; and at the next general election, to be held in November, Anno Domini eighteen hundred and ninety-six, one judge of paid court, in addition to the present num- ber provided by law for said county, shall be elected to hold office for the term prescribed by the constitution and by law. Sec. 3. The salary of said one additional judge shall be the same in amount, and shall be paid at the same time and in the same manner, as that of the other judges of the superior court of said county now authorized by law. Sec. 4. This act shall take effect Immediately from and after its passage. [Approved March 12, 1895; Stats. 1895, p. 48.] An Act to provide an additional Judge of the Su- perior Court of the County of San Bernardino. Two judges. Section 1. The number of judges of the Superior court of the county of San Bernardino is hereby increased from one to two. 808 APPENDIX. Governor to appoint, when. Sec. 2. Witliiu ten days after the passage of this act, the Governor shall appoint an additional judge of the superior court of said county of San Ber- nardino, who shall hold office until the first Mon- day after the first day of January, A. D. eighteen hundred and eighty-nine; and at the next general election, a .ludge of said court of said county shall l>e elected to liold otfice for the term prescribed by the constitution and by law. Salary of. Sec. 3. The salary of said additional judge shall be the same in amount, and shall be paid at the same time and in the same manner, as that of the other judge of said superior court of said county. Sec. 4. This act shall talce effect and be in force from and after its passage. [Approved March 5, 1887; 1887, 19.] An Act to increase the number of Judges of the Superior Court of the County of San Diego, State of California, and for the appointment of such additional Judges. Increase of judges. Section 1. The number of judges of the superior court of the county of San Diego, State of Cali- fo)'nia, is herebv increased from one (1) to three (3). Appointment of additional judges. Sec. 2. Witl\in ten days after the passage of this act, the Governor shall appoint two additional judges of the superior court of the county of San Diego. State of California, who shall hold ofl^ce until the first INfonday after the first day of Janu- ary, A. D. eighteen hundred and ninety-one. At the next general election, two judges of the super- APPENDIX. 809 ior court of said coiinty shall be elected in said county, who shall be successors of the judges ap- pointed hereunder, to hold otfice for the term pre- scribed by the constitution and by law. Salaries. Sec. o. The salaries of said additional judges shall be the same in amount, and be paid at the same time and in the same manner, as the sal- ary of the other judge of the superior court of said county now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved February 8, 1889; 1889, 5.] An Act to reduce the number of Judges of the Su- perior Court of San Diego County to two. Section 1. The number of superior judges in San Diego county is hereby reduced to two; pro- vided, that such reduction shall not affect any judge who has been elected in said county. Sec. 2. This act shall take effect immediately. [Approved March 5, 1895; Stats. 1895, 24.] An Act providing for an additional Superior Judge for the County of San Luis Obispo, and provid- ing for his appointment and salary. Increase of judges. Section 1. The number of judges of the superior court of tlie county of San Luis Obispo, State of California, is hereby increased from one (1) to two (2). Appointipent. Sec. 2. Within ton days after the passage of this act, the Governor shall appoint one additional 810 APPENDIX. judge of the superior court of the county of Sau Luis Obispo, State of California, who shall hold office until the first Monday after the first day of January, Anno Domini one thousand eight hun- dred and ninety-one. At the next general elec- tion, one judge of the superior court of said coun- ty shall be elected in said county, who shall be the successor of the judge appointed hereunder, to hold office for the term prescribed by the con- stitution and by law. Salary. Sec. 3. Such additional judge of the superior court shall receive such salary as may be al- lowed by law at the time of his appointment and qualification, which shall be paid in the same man- ner as the salary of the judge of the superior court of said county is now paid. Sec. 4. This act shall take effect immediately. [Approved February 8, 1889; 1889, 6.] An Act providing that the oflice of the judge of the Superior Court of the County of San Luis Obispo, State of California, now held by Judge D. S. Gregory, shall cease upon a vacancy oc- curring therein. Vacancy in office of superior judge, San Luis Obispo County, not to be filled. Section 1. Upon the office of the judge of the superior court of the county of San Luis Obispo, State of California, now held by Judge D. S. Greg- ory, becoming vacant, by resignation or otherwise, such office shall cease; and thereafter there shall be but one judge of the superior court in and for the county of San Luis Obispo, State of California. Sec. 2. This act shall take effect imm'ediately. [Approved March 19, 1889; 1889, 333.] APPENDIX. 811 An Act to increase the number of Judges of the Superior Court of the County of Santa Clara, and to provide for the appointment of an ad- ditional Judge. Section 1. The number of judges of the super- ior court of the county of Santa Clara is hereby increased from two to three. Sec. 2. Within ten days after the passage of this act the Governor shall appoint one additional judge of the superior court of the county of Santa Clara, State of California, who shall hold oftice until the first Monday after the first day of Janu- ary, Anno Domini eighteen hundred and ninety- nine. At the next general election a judge of the superior court of the said county shall be elected in said county, who shall be the successor of the judge appointed hereunder, to hold office for the term prescribed by the Constitution and by law. Sec. 3. The salary of said additional judge shall be the same in amount and shall be paid at the same time, and in the same manner as the salary of the other judges, of the superior court of the said county, now authorized by law. Sec. 4. This act shall talce effect and be in force from and after its passage. [Approved February IG, 1897; Stats. 1897, c. 19. In effect immedi- ately.] An Act providing for the election or appointment of a separate Judge of the Superior Court for each of the Counties of Yuba and Sutter, and fixing and providing for the payment of the salary of each of such Judges. Section 1. At the general election to bo held in the year nineteen hundred and two, and at the 812 APPENDIX. general election every six years thereafter, there shall be elected in the county of Yuba, one judge of the superior court of the said county of Yuba, and in the county of Sutter, one judge of the su- perior court of the said county of Sutter; each of such judges shall hold such office in and for his respective county for the term prescribed by the Constitution and by law. Sec. 2. Should a vacancy occur from any cause in the office of judge of the superior courts of the counties of Yuba and Sutter at any time before the general election to be held in the year nine- teen hundred and two, the Governor of this State shall immediately appoint one judge of the super- ior court of the county of Y^uba, and one judge of the superior court of the county of Sutter, who shall each hold office until the first Monday after the first day of January next succeeding the first general election held after his appointment, and at such general election, his successor shall be elected to hold office for the term prescribed bj- the Constitution and by laAV. Sec. 3. The judge so elected for the county of Y'uba shall receive an annual salary of four thous- and dollars, and the judge so elected or appoint- ed for the county of Sutter shall receive an an- nual salary of four thousand dollars, and such sal- ary shall be paid in each case, one half by the State, and the other half by the county in which such court is situated, respectively, and at the times and in the mnnner now provided for the pay- ment of such salary in other counties. Sec. 4. All acts and parts of acts in conflict with this act are hereby repealed. See. .5. This act shall take effect immediately. [Approved March 2, 1897.] APPENDIX. 813 A Bill to increase the number of Judges of the Superior Court of the County of Tulare, and to provide for the appointment of an additional Judge. Section 1. The number of judges of the superior court of the county of Tulare is hereby increased from one to two. Sec. 2. Within ten days after the passage ot this act, the Governor shall appoint one additional judge of the superior court of the county of Tu- lare, State of California, who shall hold office un- til the first Monday after the first day of Janu- ary, A. D. eighteen hundred and ninety-three. At the next general election, a judge of the superior court of said county, shall be elected in said coun- ty, who shall be the successor of the judge ap- pointed hereunder, to hold oflice for the term pre- scribed by the Constitution and by law. Sec. 3. The salary of said additional judge shall be the same in amount, and shall be paid at the same time and in the same manner, as the salary of the other judge of the superior court of said county now authorized by law. Sec. 4. This act shall take effect and be in force from and after its passage. [Approved March 10, 1891; Stats. 1891, 61.] An Act to reduce the number of Judges of the Su- perior Court of the County of Tulare from two to one. Section 1. The number of judges of the superior court of the county of Tulare, State of California, is hereby reduced from two to one; provided, that the provisions of this section shall not affect either of the present judges of said superior court. 814 APPENDIX. Sec. 2. No election of a judge of the superior court sliall be held in said county prior to the general election in the year one thousand eight hundred and ninety-eight, and no vacancy in the office of judge of the superior court of said county occurring on or prior to the first Monday after the first day of January, in the year one thousand eight hundred and ninety-seven shall be tilled by appointment or otherwise, unless necessary to ;maintain one judge of said superior court. Sec. o. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. [Approved March 20, 1895; Stats. 1895, 128.] ESTATES OF DECEASED PERSONS. § 1. Right to collect deposit. § 2. Power of bank. An Act to amend an Act entitled "An Act to au- thorize the Husband or Wife, or next of kin, of a Deceased I^erson, to collect and receive of any Savings Bank any deposit in such bank, when the same does not exceed the sum of three hundred dollars," approved February 18, 1874. [Stats. 1895, 32.] Section 1. Section one of said act is hereby amended so as to read as follows: Section 1. The surviving husband or wife of any deceased person, or if no husband or wife be liv- ing, then the next of kin of such decedent, may, withont procuring letters of administration, collect of any bank any sum which said deceased may have left on deposit in such bank at the time of his or her death; provided, said deposit shall not exceed the sum of five hundred dollars. APPENDIX. 815 Sec. 2. Section two of said act is hereby amend- ed so as to read as follows: Section 2. Any bank, upon receiving an affida- vit stating- that said depositor is dead, and that affiant is tlie surviving husband or wife, as the case may be, or stating that said decedent left no husband or wife, and that affiant is next of kin of said decedent, and entitled to distribution, and that the whole amount that decedent left on de- posit in any and all banks of deposit in this State does not exceed the sum of hve hundred dollars, may pay to said affiant any deposit of said dece- dent, if the same does not exceed the sum of five hundred dollars, and the receipt of such affiant shall be a sufficient acquittance therefor. Sec. 3. Any person who shall make a false affi- davit in regard to the matters specified in this act, shall be deemed to be guilty of perjury. Sec. 4. This act shall take effect from and after its passage. [Became a law, under constitutional provision, \\ iihout Governor's approval, March 8, 1895. The original act was the same except that the amount was $300.] An Act supplementary to an Act entitled an Act to regulate the Settlement of the Estates of De- ceased Persons, passed May first, eighteen hun- dred and fifty-one. Section 1. When it shall appear, upon the settle- ment of the accounts of any executor or adminis- trator, that debts against the deceased have been paid without the affidavit and allowance prescrib- ed by section one hundred and thirty-one of the act to which this act is supplementary, and it shall be proven by competent evidence to the satisfac- tion of the probate courts that such debts were 816 APPENDIX. justly due, were paid in good faith, that the amount paid was the true amount of such indebt- edness over and above all payments of set-oft's, and that the estate is solvent, it shall be the duty of the said court to allow the said sums so paid in the settlement of said accounts. Sec. 2. This act shall go into effect from and af- ter its passage. [Approved March 30, 1872; 1871-2, GOG.] APPENDIX. 817 A.U Act for the Relief of Insolvent Debtors, for the protection of Creditors, and for the punish- ment of Fraudulent Debtors. [Approved ^larch 2(^, 181)5; in effect sixty days af- ter approval; State. 1895, 131.] § 1. Who may be discharged. § 2. Voluntary insolvent— Petition. § 3. Schedule. § 4. What to contain. § 5. Verification. § 6. Order declaring insolvent— Publication— Receiver. § 7. Publication— Service— Costs. § 8. Voting— Exceptions to claims— Mortgage claimant. § 9. Involuntary— Petition— Bond. Order to show cause. Service— Publication. Demurrer— Answer— Trial. Order— Schedule— Verification— Assignee. Publication of order— Service— Costs. Trial. § 16. When service cannot be made— Inventory, § 17. Other property— Appeal. § 18. Improper affidavits and bonds. 8 19. Assignees, election of and bond. § 20. Failure to elect. § 21. Clerlr to convey to assignee— Attachments l<. 1^; ments. § 22. Assignee may recover all of estate. S 23. Assignment to be recorded. § 24. Assignee may resign. § 25. Power of assignee. § 26. Insolvent to deliver property to court. § 27. Penalty. § 28. Proceedings. § 29. Converting estate into money. S 30. Perishable property. § 31. Rights of action. § 32. Expenses. § 33. Account of assignee. § 34. Account on motion of creditors. § 35. Pro rata dividends. § 36. Dividends. § 37. Refusal to render account. Code Civ. Proc— 69. 818 APPENDIX. § 38. Preparatory to final account. ^ 39. Paitnerships. § 40. Corporatious. § 41. Proof of debts. § 42. Chaiteis wrongfully taken. § 43. Debtor as an iudorser, etc. § 44. Coniingent debts. § 45. Guaiantor. § 46. Rents, etc. 5 47. Mutual accounts. § 48. Mortgage. § 49. R gilt of action waived by creditor. § iiO. Unlawful preference. § 51. Examination of debtor. § 52. Discharge — Notice. § 53. When discharge shall not be granted. § 54. Opposition to discharge. § 55. Certificate of discharge. § 56. Fraudulent debts, etc. § 57. Effect of discharge. § 58. Refusal of discharge. § 59. Fraudulent piefereuces and transfers. § 60. Penalty for wrongful act. § 61. Death of debtor. § 32. Statute of limitations. § 63. Attorney. § 64. Exempt property. § 65. What is commencement of proceeding. § 66. Words. § 67. Receiver may be appointed. § 68. Contempt. § G9. Costs. § 70. Dismissal of proceedings. § 71. Appeal. § 72. Repeal of prior acts. ARTICLE I. General Subject of the Act. 1. Every insolrent debtor may, upon compli- ance with the provisions of this act, be discharged from his debts and liabilities. This act shall be known and may be cited as the Insolvent Act of eifrhteen hundred and ninety-five. ARTICLE II. Voluntary Insolvency. 2. An insolvent debtor, owing debts exceeding in amount the sum of three hundred dollars, may APPENDIX. 819 apply by petition to the superior conrt of the county, or city and county, in which he has resided for six months next preceding the filing of his petition to be discharged from his debts and liabilities. In his pe- tition he shall set forth his place of residence, his inability to pay all his debts in full, his willing- ness to surrender all his estate and effects for the benefit of his creditors, and his desire to obtain a discharge from his debts and liabilities, and shall annex thereto a schedule and inventory and Talnation. in compliance with the provisions of this act. The filing of such petition shall be an act of insolvency, and thereupon such petitioner shall be adjudged an insolvent debtor, 3. Said sciiedule must contain a full and true statement of all his debts and liabilities, exhibit- ing to the best of his knowledge and belief to whom said debts or liabilities are due, the place of residence of his creditors, and the sum due each; the nature of the indebtedness or demand, whether founded on written security, obligation, contract, or otherwise; the true cause and consid- eration thereof, and the time and place when and where such indebtedness accrued, and a statement of any existing pledge, lien, mortgage, judgment, or other security for the payment of the same; also, an outline of the facts touching any liability, directly or indirectly, in the nature of any right of action against the insolvent by any one. 4. Said inventory must contain an accurate de- scription of all the estate, both real and personal, of the petitioner, including his homestead, if any, and all property exempt by law from execution, and where the same is situated, and all encum- brances thereon; also, an outline of the facts touching any right of action in favor of the insol- vent against any one. 5. The petition, schedule, and inventory must 820 APPENDIX. be verified by the affidavit of the petitioner an- nexed thereto, and shall be in form substantially as follows: I, , do solemnly swear that the schedule and inventory now delivered by me con- tain a full, perfect, and true discovery of all the estate, real, personal, and mixed, goods and ef- fects, to me in any way belonging; all such debts as are to me owing, or to any person or persons in trust for me. and all securities and contracts, and contracts whereby any money may hereafter be- come payable, or any benefit or advantage ac- crue to me or to my use, or to any other person or persons in trust for me; that the schedule and inventory, respectively, contain a clear outline of the facts touching any known right of action agiiinst me by any one, and an outline of the facts touching all rights of action in my favor against any one; that I have no lands, money, stocl?;, or estate, reversion, or expectancy, besides that set forth in my schedule and inventory; that I have in no instance created or aclinowledged a debt for ;) greater sum than I honestly and truly owe; that I have not, directly or indirectly, sold, or otherwise disposed of, or concealed,, any part of my property, effects, or contracts; that I have not in any way compounded with my creditors where- by to secure the same, or to receive or to expect any profit or advantage therefrom, or to defraud or deceive any creditor to whom I am indebted in any manner. So help me God. 6. Upon receiving and filing such petition, schedule, and inventory, the court shall make a-n order declaring the petitioner insolvent, and di- recting the Sheriff of the county, or city and coun- ty, to take possession of all the estate, real and personal, of the debtor, except such as may be by law exempt from execution, and of all his deeds, vouchers, books of account, and papers, and to keep the same safely until the appointment of an assignee. Said order shall further forbid the pay- APPENDIX. 821 ment of any debts and the delivery of any prop- erty belonging to such debtor, to him, or for his use, and the transfer of anj^ property by him; and shall further appoint a time and place for a meet- ing of the creditors, to prove their debts and choose an assignee of the estate, and shall desig- nate a newspaper of general circulation published in the county, or city and county, in which the pe- tition is tiled, if there be one, and if there be none, in a newspaper published nearest to such county, or city and county, in w^hich publication of such order shall be made. The time appointed for the election of an assignee shall not be less than eight nor more than ten days from the date of the order of adjudication. Upon the granting of said order, all proceedings against the said insolvent shall be stayed. When a receiver is appointed or an as- signee chosen, as provided for in this act, the Sheriff shall thereupon deliver to such receiver or assignee, as the case may be, all the property and assets of the insolvent which have come into his possession, and shall be allowed and paid as com- pensation for his services the same expenses and fees as would by law be collectible if the property had been levied upon and safely kept under at- tachment. 7. A copy of said order shall immediately be published by the clerk of said court, in a news- paper designated therein, as often as said news- paper is printed before the meeting of creditors, and bo served by the clerk forthwith by the United States mail, postage prepaid, or personally, on all creditors named in the schedule. There shall be deposited in addition to the usual cost of com- mencing such proceedings a sum of money suffi- cient to defray the cost of the publication ordered by the court, and ten cents for each coi)y. to bo mailed to or served on the creditors, which latter sum is hereby constituted the legal fee of the clerk for the mailing or p.ervice required in this section. S22 APPENDIX. 8. No claim shall be entitled to a vote for the election of an assignee, unless such claim shall be placed on file in the office of the clerk of the court in which the proceedings are pending, at least two days prior to the time appointed for the election of an assignee. All claims shall be established by a statement, showing the amount and nature of the claim, and security, if any; such statement to be verified by the claimant, his agent or attorney; provided, no claim barred by the statute of limita- tions shall be proved or allowed against the es- tate of an insolvent debtor for any purpose. Any person interested in the estate of the insolvent may file exceptions to the legality or good faith of any claim, by setting forth specifically in writing his interest in the estate, and the grounds of his objection to such claim; such specifications of ex- ceptions to be verified by the affidavit of the par- ty objecting, bis agent or attorney, setting out among other things that such exceptions are not made for the puiiDOse of delay, or otherwise than in good faith in the best interest of said estate. Such exceptions to be filed with the clerli of the court at least one day before the time appointed for the election of an assignee; and such excep- tions shall be heard and disposed of by the court, on affidavit or other evidence, in a summary man- ner, before the election of an assignee. But the decision of the court upon the exceptions as to whether the claimant shall be entitled to vote for an assignee shall not be conclusive upon the right of the party to participate in the assets of the in- solvent, the enforcement of such right being sub- ject to the laws of the State touching the estab- lishment of claims against the estates of insolvents in case of dispute. No creditor or claimant, who holds any mortgage, pledge, or lien of any kind whatever, as security for the payment of his claim, sliall be permitted to vote any part of his secured claim in the election of assignee, unless APPENDIX. 823 he shall first have the value of such security fixed as provided iu section forty-eight of this act, or surrender to the Sheriff or receiver of the estate of the insolvent, if any receiver, all such prop- erty so mortgaged or pledged, or assign such lien to such receiver or sheriff; such surrender or as- signment of security or lien to be for the benefit of all ci-editoi's of the estate of the insolvent. The value of such security, if fixed by the court, shall be so fixed at least one day before the day ap- pointed for the election of an assignee; in which event the claimant may prove his demand, as pro- vided in this section, for any unsecured balance subject to the same exceptions as all other claims. [Amendment approved February 26, 1897; Stats. 1897, c. 38.] ARTICLE III. Involuntary Insolvency. 9. An adjudication of insolvency may be made on the petition of five or more creditors, residents of this State, whose debts or demands accrued in this State, and amount in the aggregate to not less than five hundred dollars; provided, that said cred- itors, or either of them, have not become creditors by assignment within thirty da^^s prior to the filing of said petition. Such petition must be tiled in the superior court of the county, or city and county, in which the debtor resides or has his place of bus- iness, and must be verified by at least three of the petitioners, setting forth that such person is about to depart from this State, with intent to defraud his creditors, or being absent from the State with such intent, remains absent; or conceals himself to avoid the service of legal process; or conceals, or is removing, any of his property to avoid its being attached or talcen on legal process; or be- ing insolvent, has suffered his property to remain under attacliment; or legal process, for three days; or has confessed or offered to allow judgment in 824 APPENDIX. favor of any creditors; or willfully suffered judg- ment to be taken against him by default; or has suffered or procured his property to be talien on legal process, Avith intent to give a preference to one or niore of his creditors; or has made any as- signment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, with intent to delay, defraud, or hinder his creditors; or in con- templation of insolvency, has made any payment, gift, grant, sale, conveyance or transfer of his estate, property, rights, or credits; or has been ar- rested and held in custody by virtue of any civil process of cotirt founded on any debt or demand; and such process remains in force, and not dis- charged by payment, or otherwise, for a period of three days; or being a merchant or tradesman, has stopped or suspended, and not resumed payment within a period of forty days after the maturity of any written acliuowledgment of indebtedness, unless the party holding such acknowledgment has, in writing, waived the right to proceed under this subdivision; or being a bank or banker, agent, broker, factor, or commission merchant, has failed for forty "days to pay any moneys deposited with or received by him in a flduciary capacity, upon demand of payment, excepting savings and loan banks, or associations Avho loan the money of their stockholders and depositors on real estate, and pro- vide in their by-laAVS for the repayment of such deposits. The petitioners may, from time to time, amend and correct the petition, so that the same shall conform to the facts by leave of the court be- fore which the proceedings are pending, such amendment or amendments to relate back to and be received as embraced in the original petition; but nothing in this section shall be construed to invalidate any loan of actual value, or the security therefor, made in good faith tipon a security talcen in good faitli on the occasion of the making of sucli loan. The said petition shall be accompanied APPENDIX. 826 by a bond with two sureties in the penal sum of at least five hundred dollars, conditioned that if the debtor should not be declared an insolvent, the petitioners will pay all costs and damages, includ- ing a reasonable attorney's fee, that the debtor may sustain by reason of the filing of said peti- tion. The court may, upon motion, direct the fil- ing of an additional bond with different sureties, when deemed necessary. 10. Upon The filing of such creditors' petition, the court, or a judge thereof, shall issue an order requiring such debtor to shoAV cause, at a time and place to be fixed by said court, or judge, why he should not be adjudged an insolvent debtor, and at the same time, or thereafter, upon good cause shown therefor, said court, or judge, may malie an order forbidding the payment of any debts, and the delivery of any property belonging to such debtor to him or for his use, or the transfer of any property by him. 11. A copy of said petition, with a copy of the order to show cause, shall be served on the debtor, in the same manner as is provided by law for the service of summons in civil actions, but such .ser- vice shall be made at least five days before the time fixed for the hearing; provided, that if, for any reason, the service is not made, the order may be renewed, and the time and place of hearing changed by supplemental order of the court; pro- vided, however, that where the debtor or debtors on whom service is to be made reside out of this State; or has departed from the State; or cannot, after due diligence, be found within the State; or conceals himself to avoid the service of the order to show cause, or nuy other process or orders in the matter; or is a foreign corporation, having no managing or business agent, cashier, or secretary within the State, upon whom service can be made, and such facts are shown to the court, or a judge thereof, by affidavit such court or judge thereof &26 APPENDIX. sbull make an order that the service of such order, or other process, be made by publication, in the same manner, and with the same effect, as ser- vice of summons by publication in ordinary civil actions. 12. At the time fixed for the hearing of said order to show cause, or such other time as it may be adjourned to, the debtor may demur to the pe- tition for the same causes as is provided for de- murrer in other cases by the Code of Civil Proced- ure. If the demurrer be overruled, the debtor shall have five days thereafter in which to answer the petition. If the debtor answer the petition, such answer shall contain a specific denial of the material allegations of the petition controverted by him, and shall be verified in the same manner as pleadings in civil actions; and the issues raised rhereon, may be tried with or without a jury, ac- cording to the practice provided by law for the trial of civil actions. 13. If the respondent shall make default, or if after a trial, the issues are found in favor of the petitioners, the court shall make an order adjudg- ing that said respondent is, and was at the time of filing the petition, an insolvent debtor, and that the debtor was guilty of the acts and things charg- ed in the petition, or such of those acts and charges as the court may find to be true; and shall require said debtor, within such time as the court may designate, not to exceed three days, to file in court the schedule and inventory provided for in sections three and four of this act, duly verified as required of a petitioning debtor; provided, that in the affidavit of the insolvent touching his prop- erty and its disposition he shall not be required to swear that he has not made any fraudulent preference, or committed any other act in conflict with the provisions of this act; but he may do so if ho desires. Said order shall further direct the slKM-iff of th(» county, or city and county, where the APPENDIX. 827 insolveucy petition is tiled, or the receiver, if one has been theretofore aypoiuted, to talio possession of all the estate, real and personal, of the debtor, except such as may be by law exempt from execu- tion and of all his deeds, vouchers, boolis of ac- count, and papers, and to keep the same safely until the appointment of an assignee. Said order shall further forbid the payment of any debts, and the delivery of any property belonging to such debtor, to him, or for his use, and the transfer of any property by him; and shall further appomt a time and place for a meeting of the creditors, to prove their debts, and choose an assignee of the estate, and shall designate a newspaper of gen- eral circulation published in the county, or city and county, in which the petition is tiled, if there be one; and if there be none, in a newspaper published nearest to such coun- ty, or city and county, in which publication of said order shall be made. The time appointed for the election .of an assignee shall not be less than eight nor more than ten days from the date of the order of adjudication. Upon granting of said or- der, all proceedings against the said insolvent shall be stayed. "When a receiver is appointed subse- quent to adjudication, or an assignee is chosen as provided for in this act, the sheriff shall there- upon deliver to such receiver or assignee, as the case may be, all the property and assets of the in- solvent Avhich have come into his possession, and shall be allowed and paid as compensation for his service the same expenses and fees as would by law be collectible if the property had been lev- ied upon and safely kept under attachment. 14. A copy of the order provided for in section thirteen of this act, shall immediately be publish- ed by the clerk of said court in the newspaper de- signated therein, ns often as such newspaper is printed before the meeting of creditors, and upon the filing, at any time before the date set for such 828 APPENDIX. mootin.u", of Tho f-'chediile required by sfiid soetiou thirteen, a copy of said order shall be served by the elerlv fortlnvith by United States mail, postage prepaid, or personally, on all creditors named in said schedule. If said schedule is not filed prior to the day fixed for the election of an assignee, pub- lication of said order as herein required shall be of itself sufficient notice to the creditors of the time and place appointed for the election of an assignee. No order of adjudication upon credit- ors' petition shall be entered unless there be first deposited, in addition to the usual cost of com- mencing said proceedings, a sum of money suffi- cient to defray the cost of the publication ordered by the court, and tlie further sum of five dollars, which is hereby constituted the legal fee of the clerlv for the mtuling or service of notice to credit- ors required in this section. 15. If, upon such hearing or trial, the issues are found in favor of the respondent, the proceedings shall be dismissed, and the respondent shall re- cover costs from the petitioning creditors in the same manner as on the final judgment in civil ac- tions. 16. In all cases where the debtor resides out of this State, or has departed from the State; or can- not, after due diligence, be found within the State; or conceals himself to avoid service of the order to show cause, or any other preliminary process or orders in the matter; or is a foreign corporation, having no managing or business agent, cashier, or secretary within the State upon whom service of orders and process can be made, and it therefore becomes necessary to obtain service of process and order to show cause, as provided in section eleven of this act, then the petitioning creditors, upon submitting the affidavits requisite to procure an order of pulilication, and presenting a bond in double tlie amount of the aggregate sum of their claims against the debtor, shall be entitled to an APPENDIX. S29 Older of court directing tlie sheriff of the county, or city and county, in which the matter is pend- ing, to talve into liis custody a sufhcieut amount of property of the debtor to satisfy the demands of tlie petitioning- creditors, and the costs of the proceedings. Upon receiving such order of the court to talve into custody property of tlie debtor, it shall be the duty of the sheriff to take posses- sion of the property and elfects of the debtor, not exempt from execution, to an extent sufficient to cover the amount provided for, and to prepare within three days from the time of taking such possession, a complete inventory of all the prop- erty so taken, and to rerurn it to the court as soon as completed. The time for taking the inventory and making return thereof, may be extended for good cause shown to the court, or a judge there- of. The sheriff shall also prepare a schedule of the names and residences of the creditors, and the amount due to each, from the books of the debtor, or from such other papers or data of the debtor available that may come to his possession, and shall file such schedule list of creditors and inven- tory with the clerk of the court. 17. In all cases where property is taken into the custody of the sheriff", as provided in the pre- ceding section, if the property taken into custody by the sheriff does not embrace all the property and effects of the debtor not exempt from execu- tion, any other creditor or creditors of the debtor, upon giving bond in double the amount of their claims, singly or jointly, shall be entitled to simi- lar orders, and to like action, by the sheriff", until all claims be provided for, if there be sufficient property or effects. All property taken into cus- tody by the sheriff" by virtue of the giving of any such bonds shall be held by him for the benefit of all creditors of the debtor whose claims shall be duly proved, and as provided in tliis act. Tlie Code Civ. Pror. — 70. 830 APPENDIX. bonds provided for iu tliis and the preceding sec- tion to procure the order for custody of the prop- erty and effects of the debtor, shall be conditioned that if, upon tinal hearing of the petition in insol- vency, the court shall find in favor of the peti- tioners, such bonds and all of them shall be void; if the decision be in favor of the debtor, the pro- ceedings shall be dismissed, and the debtor, his heirs, administrators, executors, or assigns, shall be entitled to recover such sum of money as shall be sufficient to cover the damages sustained by him, not to exceed the amount of the respective bonds, in any court having jurisdiction of the sub- ject and the parties; provided, that if either the petitioners or the debtor shall appeal from the de- cision of the court, upon tinal hearing of the pe- tition the appellant shall be required to give bond to the successful party in a sum double the amount of the value of the property in controversy, and for the costs of the proceedings. Any person in- terested in the estate may except to the sufficiency of .the sureties on such bond, or bonds. When ex- cepted to, the petitioner's sureties, upon notice to the person excepting of not less than two nor more than five days, must justify before a judge or county clerk in the same manner as upon bail on arrest; and upon failure to justify, or if others in their place fail to justify, at the time and place ap- l)ointed, the clerk or judge shall issue an order va- cating the order to take the property of the debtor into the custody of the sheriff. 18. If in any case, proper affidavits and bonds are presented to the court, or a judge thereof, ask- ing for and obtnining an order of publication, and an order for the custody of the property of the debtor, as provided in sections sixteen and seven- teen of this act, and thereafter the petitioners shnll make it appear satisfactory to the court, or a judge thereof, that the interest of the parties to the proceedings will bo subserved by a sale APPENDIX. S31 thereof, the court may order such property to be sold, iu tlie same manner as property is sold un- der execution, the proceeds to be deposited in the court, to abide the re^^ult of the proceedings. ARTICLE IV. Assignees. 19. At a meeting of the creditors iu open> court, those being entitled to vote, as provided by sec- tion eight, shall proceed to the election of one as- signee. In electing an assignee, the opinion of the majority in amount of claims shall prevail. The clerk of the court shall keep a minute of the delib- erations of said creditors, and of the election and appointment of an assignee, and enter the same upon the records of the court. The assignee shall file, within five days, unless the time be extended by the court, with the clerk, a bond, in an amount to be fixed by the court, to the State of California, with two or more sufficient sureties, approved by the court, and conditioned for the faithful per- formance of the duties devolving upon him. The bond shall not be void upon the first recovery, but may be sued upon from time to time by any cred- itor aggrieved, in his own name, until the whole penalty be exhausted. The sureties on such bond may be required to justify upon the application of any party interested, in the same manner as bail upon arrest in civil cases. 20. If, on the day appointed for the meeting, creditors do not attend, or refuse to elect an as- signee; or if, after election, the assignee shall fail to qualify within the proper time, or if a va- cancy occurs by death or otherwise, it shall be lawful for the court to appoint an assignee and fix the amount of his bond. 21. As soon as an assignee is elected or appoint- ed and qualified, the clerk of the court shall, by an instrument under his hand and seal of the court, assign and convey to the assignee all the estate, 832 APPENDIX. roal and personal of the debtor with all his deeds, books and papers relating thereto, and such as- signment shall relate back to the commencement of the proceedings in insolvency, and shall relate back to the acts upon which the adjudication was founded, and by operation of law shall vest the title to all such property and estate, both real and personal, in tlie assignee, although the same is then attached on mesne process, as the property of the debtor, and shall dissolve any attachment made within one month next preceding the com- mencement of the insolvency proceedings. Such assignment shall operate to vest in the assignee all of the estate of the insolvent debtor not exempt by law from execution. Whenever such assign- ment shall dissolve an attachment as herein pro- vided, it shall also vacate any judgment made or entered, and dissolve and set aside any execution levied in any action or proceeding against the debtor commenced subsequently to the action in which the attachment is dissolved. 22. The assignee shall have the right to recover all the estate, debts, and effects of said insolvent. If, at the time of the commencement of proceed- ings in insolvency an action is pending in the name of the debtor, for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignment, the assignee shall be allowed and admitted to prosecute the action, in like manner and with like effect as if it had been originally commenced by him. If there are any rights of action in favor of the insolvent for dam- ages, on any account, for which an action is not pending, the assignee sliall have the right to prose- cute the same with the same effect as the insol- vent might have done himself if no proceedings in insolvency had been instituted. If any action or proceeding at law. or in e(iuity, in which the insol- vent is defend;! nt is pending at the time of the adjudication, tlic assignee may defend the same, APPENDIX. 833 iu the same maimer aud with like effect as it might have beeu defended by the insolvent. In suit prosecuted or defended by the assignee, a cer- tified copy of the assignment made to him shall be conclusive evidence of his authority to sue or defend. 23. The assignee shall, within one month after the mailing of the assignment to him, cause the same to be recorded in every county, or city and county, within this State, where any lands owned by the debtor are situated, and the record of such assignment, or a duly certified copy thereof, shall be conclusive evidence thereof in all courts. If the schedule and inventory required by this act have not been liled by the debtor the assignee shall within one month after his election, prepare and file such schedule und inventory from the best in- formation he can obtain, aud shall thereupon serve notice by United States mail, postage prepaid, or personally, on all creditors named in such sched- ule, whose claims have not been filed, to forth- with prove their demands. 24. Any assignee may at any time, by writing filed in court, resign his appointment, having first settled his accounts, and delivered up all the es- tate to such successor as the court shall appoint; provided, that if. in the discretion of the court, the circumstances of the case require it, upon good cause being shown, the court may, at any time be- fore such settlement of account and delivery of the estate shall have been completed, revoke the appointment of such assignee and appoint another in his stead. The liability of the outgoing as- signee, or of the sureties on his bond, shall not be in any manner discharged, released, or affected by sucli, appointment of another in his stead. 25.* The said assignee shall have power: 1. To sue in his own name and recover all the estate, debts, and things in action, belonging or due to such debtor, and no set-oft" or counter-claim 834 APPENDIX. shall be allowed in any such suit for any debt, un- less it was owing to such creditor by such debtor at the time of the adjudication of insolvency. 2. To talce into his possession all the estate of such debtor except property exempt by law from execution, whether attached or delivered to him, or afterward discovered and all boolvS, vouchers, evidence of indebtedness and securities belonging to the same. 3. In case of a nonresident absconding or con- cealed debtor, to demand and receive of every sheriff who sliall have attached any of the prop- erty of such debtor, or who shall have in his pos- session any moneys arising from the sale of such property, all such property and moneys, on paying him his lawful costs and charges for attaching and keeping the same. 4. From time to time to sell at public auction ali the estate, real and personal, vested in him as such assignee, which shall come to his possession and as ordered by the court. 5. On such sales to execute the necessary con- veyances and bills of sale. 6. To redeem all valid mortgages and condition- al contracts, and all valid pledges of personal property, and to satisfy any judgments which may be an encumbrance on any property sold by him, or to sell such property, subject to such mortgage, contracts, pledges, or judgments. 7. To settle all matters and accounts between such debtor and his debtors, subject to the approv- al of the court. 8. Under the order of the court appointing him, to compound with any person indebted to such debtor, and thereupon to discharge all demands against such person. 9. To have and recover from any person receiv- ing a conveyance, gift, transfer, payment, or as- signment, made contrary to any provision of this act, the property tliereby transferred or assigned; APPENDIX. • 835 or in case a redelivery of the property cauuot be bad, to recover the value thereof, with damages for the detention. 26. The insolvent shall, either before or on the day appointed for the meeting of creditors, deliv- er to the court all the commercial or account boolvS he may have Icept, which books shall be deposited in the clerli's ottice of said court. Said insolvent shall also deliver to the court at the same time, all vouchers, notes, bonds, bills, securities, or other evidences of debt, in any manner relating to or having anj^ bearing upon or connection with the property surrendered by said debtor, and all such papers or securities shall be deposited in the cleric's otlice of said court, and the clerk shall hand them over, together with the books of the in- solvent, to the assignee who may be appointed. 27. If any person, before the assignment is made, having notice of the commencement of the proceedings in insolvency, or haying reason to be- lieve that insolvency proceedings are about to be commenced, embezzles or disposes of any of the moneys, goods, chattels, or effects of the insolvent, he is chargeable therewith, and liable to an action by the assignee for double the value of the prop- erty so embezzled or disposed of, to be recovered for the benefit of the estate. 28. The same penalties, forfeitures, and pro- ceedings by citation, examination and commitment shall apply on behalf of an assignee against per- sons suspected of having concealed, embezzled, conveyed away, or disposed of any property of the debtor, or of having possession or knowledge of any deeds, conveyances, bonds, contracts, or other writings which relate to any interest of the debt- or in any real or personal estate as provided in the case of estates of deceased persons in sections one thousand four hundred and fifty-nine, one thous- and four hundred and sixty, and one thousand four hundred and sixty-one of the Code of Civil Procedure. 836 " APPENDIX. 29. The assignee shall as speedily as possible convert the estate, real and personal, into money. He shall keep a regular account of all moneys re- ceived by him as assignee, to Avhich every creditor or other person interested therein may, at all rea- sonable times, have access. No private sale of any property of the estate of an insolvent debtor shall be valid unless made under the order of the court, upon a petition in writing, which shall set forth the facts showing the sale to be necessary. Upon filing the petition, notice of at least ten days shall be given by publication and mailing, in the same manner as is provided in section seven of this act. If it appears that a private sale is for the best in- terests of the estate, the court shall order it to be made. 30. In all cases where there has been personal service of the order to show cause, or voluntary appearance after order of publication, when it ap- pears to the satisfaction of the court that the es- tate of the debtor, or any part thereof, is of a per- ishable nature, or is liable to deteriorate in value, or is disproportionately expensive to keep, the court may order the same to be sold in such man- ner as may be deemed most expedient, under the direction of the sheriff, receiver, or assignee, as the case may be, who shall hold the funds re- ceived in place of the property sold until further order of the court. 31. Outstanding debts, or other property due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, may be sold and assigned in like manner as the remainder of the estate. If there are any rights of action for dam- ages in favor of the insolvent prior to the com- mencement of the insolvency proceedings, the same may, with the approval of the court, be com- promised. 32. Assignees shall be allowed all necessary ex- APPENDIX. 837 peuses in the care, management, and settlement of the estate, and shall be entitled to charge and receive for their services commissions upon all sums of money coming to their hands and ac- counted for bj' them, as follows: For the first thousand dollars, at the rate of seven per cent; for all nbove that sum and not exceeding ten thousand dollars, at the rate of five per cent; and for all above that sum, at the rate of four per cent; provided, however, that if the person act- ing as assignee was receiver of the property of the estate pending the election of an assignee, any compensation allowed him as such receiver shall be deducted from the compensation to which he otherwise would be entitled as such assignee. 33. At the expiration of three months from the appointment of the assignee in any case, or as much earlier as the court may direct, a time and place shall be fixed by the court at which the as- signee shall exhibit to the court and to the credit- ors, and file just and true accounts of all his re- ceipts and payments, verified by his oath, and a statement of the property outstanding, specifying the cause of its outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his possession, and shall accom- pany the same with an affidavit that notice by mail has been given to all creditors named in the schedule filed by the debtor or the assignee that said accounts will be heard at a. time specified in such notice, which time shall not be less than ten nor more than fifteen days from the filing of such accounts. At the hearing the court shall audit the accounts, and any person interested may appear and file exceptions thei-eto and contest the same, and thereupon the court may order a dividend paid to those creditors whose claims have been proven and allowed. Thereafter, further accounts, state- ments, and dividends shall be made in lilvC man- ner as often as occasion requires; provided, how- 83S APPENDIX. ever, that it shall be the duty of the assignee to file his fiual account within one year from the date of the order of adjudication, unless the court, af- ter notice to creditors, shall grant further time, upon a satisfactory showing that great loss and waste would result to the estate by reason of tlie conversion of the property into money within said time, or that it has been impossible to do so by reason of litigation. 34. The court shall at any time, upon the mo- tion of any two or more creditors, require the as- signee to file his account in the manner and upon giving the notice specified in the preceding section, and if he has funds subject to distribution, he shall be required to distribute them without de- lay. 35. All creditors whose debts are duly proved and allowed shall be entitled to share in the prop- erty and estate pro rata without priority or pref- erence whatever, other than as provided in this act and in section one thousand two hundred and four of the Code of Civil Procedure; provided, that any debt proved by any person liable as bail, sure- ty, guarantor, or otherwise, for the debtor, shall not be paid to the person so proving the same imtil satisfactory evidence shall be produced of the pay- ment of such debt by such person so liable; and the share to which such debt would be entitled may be paid into court, or otherwise held, for the benefit of the party entitled thereto, as the court may direct. 36. Whenever any dividend has been duly de- clared, the distribution of it shall not be stayed or affected by reason of debts being subsequently proved, but the creditors, proving such debts shall be entitled to a dividend equal to those already received by the other creditors, before any further dividend is made to the latter; provided, the fail- ure to prove such claim shall not have resulted from his own neglect. APPENDIX. 839 37. Should the assignee refuse or neglect to ren- der his accounts as required by sections thirty- three and thirty-four of this act, or pay over a di- vidend when he shall have, in the opinion of the court, sufficient funds for that purpose, the court shall immediately discharge such assignee from his trust, and shall have power to appoint another in his place. The assignee so discharged shall forthwith deliver over to the assignee appointed by the court all the funds, property, books, vouch- ers, or securities belonging to the insolvent, with- out charging or retaining any commission or com- pensation for his personal services. 38. Preparatory to the final account and divi- dend, the assignee shall submit his account to the court, and file the same, and shall at the time of filing accompany the same with an affidavit that a notice by mail has been given to all credit- ors who have proved their claims, that he will apply for a settlement of his account, and for a discharge from all liability as assignee, at a time specified in such notice, which time shall not be less than ten or more than twenty days from such filing. At the hearing the cotirt shall audit the account, and any person interested may appear and file exceptions in writing and contest the same. The court thereupon shall settle the ac- count, and order a dividend of any portion of the estate, remaining undistributed, and shall dis- charge the assignee, subject to compliance witli the order of the court, from all liability as assignee to any creditor of the insolvent. ARTICLE y. Partnerships and Corporations. 39. Two or more persons who are partners in business, or the surviving partner of any firm, may be adjudged insolvent, either on the petition of such partners, or any one of them, or on the 840 APPENDIX. petition of five or more creditors of tlie partner- ship, qualified as provided for in section nine of this act, in which case an order shall be issued in the manner provided by this act, upon which all the joint stock and property of the partnership, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as may be exempt by law; and all the creditors of the company, and the separate credit- ors of each partner, shall be allowed to prove their respective debts; and the assignee shall be chosen by the creditors of the copartnership, and shall also keep separate accounts of the joint stock or property of the copartnership, and the separate estate of each member thereof, and after deduct- ing out of the whole aiiiount received by such as- signee the Avhole amount of the expenses and dis- bursements, the net proceeds of the joint stock shall be appropriated to pay the creditors of the copartnership, and the net proceeds of the separ- ate estate of each partner shall be appropriated to pay his separate creditors; and if there shall be any balance of the separate estate of any partner after the payment of his separate debts, such balance shall be added to the joint stock for the payment of the joint creditors; and if there shall be any balance of the joint stock after the pay- ment of the joint debts, such balance shall be di- vided and appropriated to and among the separate estate of the several partners according to their respective right and interest therein, and as it would have been if the partnership had been dis- solved without any insolvency; and the sum so a]v propriated to the separate estate of each partner shall be applied to the payment of his separate debts, and the certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings had been by or against liim alone under this act; and in all APPENDIX. 841 other respects the proceedings as to the partners shall be conducted in the lilve manner as if they had been commenced and prosecuted by or against one person alone. If such copartners re- side in ditferent counties, the court in which the petition is first filed shall retain exclusive juris- diction over the case. If the petition be filed by less than all the partners of a copartnership, those partners who do not join in the petition shall be ordered to show cause why they, as individuals, and said copartnership, should not be adjudged to be insolvent, in the same manner as other debtors are required to show cause upon a creditor's peti- tion, as in this act provided; and no order of ad- judication shall be made in said proceedings until after the bearing of said order to show cause; pro- vided, that in case of proceedings by or against surviving partners, as such, only the partnership interest of deceased partners shall be subject to the control of the court in the insolvency proceed- ing; but the surviving partner, assignee, or credit- ors may pursue the property of the deceased part- ners in the court having jurisdiction thereof in probate proceedings. 40. The provisions of this act shall apply to cor- porations, and upon the petition of any officer of any corporation, duly authorized by the vote of the board of directors or trustees, at a meeting specially called for that purpose, or by the assent in writing of a majority of the directors or trustees as the case may be, or upon a creditor's petition made and presented in the manner provided in re- spect to debtors, the like proceedings shall be had and taken as are provided in the case of debtors. All the provisions of the act which apply to the debtor, or set forth his duties, examination, and liabilities, or prescribe penalties, or relate to fraud- ulent conveyances, payments and assignments, apply to each and every officer of any corporation Code Civ. Proc— 71. ?.42 APPENDIX. in relation to the same matters concerning the cor- poration. Whenever any corporation is declared insolvent, all its property and assets shall be dis- tributed to the creditors; but no discharge shall be granted to any corporation. ARTICLE VI. Proof of Debts. 41. All debts due and payable from the debtor at the time of the adjudication of insolvency, and all debts then existing but not payable until a fu- ture time, a rebate of interest being made when no interest is payable by the terms of the con- tract, may be proved against the estate of the debtor. 42. All demands against the debtor for or on account of any goods or chattels wrongfully taken, converted, or withheld by him, may be proved and allowed as debts to the amount of the value of the property so withheld, from the time of the conver- sion; provided, however, that if the assignee, or any creditor whose claim has been proven against the estate, shall request it in writing, the court shall require the matter of such claim for dam- ages to be tried as an ordinary action at law, to determine the liability of the debtor for such dam- ages. 43. If the debtor shall be bound as indorser, surety, bail, or guarantor, upon any bill, bond, note, or other specialty or contract, or for any debt of any person, and his liability shall not have be- come absolute until the adjudication of Insol- vency, tile creditor may prove the same after such liability shall have become fixed, and before the final dividend shall have been declared. 44. In all cases of contingent debts and con- tingent liabilities, contracted by the debtor, and not herein otherwise provided for, the creditor may malce claim therefor and have his claim al- lowed, with the right to share in the dividends, if APPENDIX. 843 the contingeucy shall happen before the order of the final dividend; or he may, at any time, apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall be done in such manner as the court shall order, and shall, be allowed to prove for the amount so ascertained. 45. Any person liable as bail, surety, or guar- antor, or otherwise, for the debtor, who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor, if he shall have proved the same, although such payments shall have been made after the proceedings in in- solvency were commenced; and any person so lia- ble for the debtor, and who has not paid the whole of said debt, but is still liable for the same, or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same in the name of the creditor. 46. Where the debtor is liable to pay rent, or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the insolvency, as if the same became due from day to day, and not at such fixed and stated periods. 47. In all cases of mutual debts and mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed and paid. But no set-off or counter-claim shall be allowed of a claim in its nature not provable against the estate; provided, tliat no set-off or counter-claim shall be allowed in favor of any debtor to the insolvent of a claim purchased by or transferred to him after the filing of the petition by or against him. 48. When a creditor has a mortgage, or pledge of real or personal property of the debtor, or a lien thereon, for securing the payment of a debt owing 844 APPENDIX. to him from the debtor, he shall be admitted as a creditor only for the balance of the debt, after deducting the value of such property, to be ascer- tained by agreement between him and the receiv- er, if any, and if no receiver, then upon such sum as the court, or a judge thereof, may decide to be fair and reasonable, before the election of an as- signee, or by a sale thereof, to be made in such manner as the court, or judge thereof, shall direct; or the creditor may release or convey his claim to the receiver, if any, or if no receiver then to the sheriff, before the election of an as- signee, or to the assignee if an assignee has been elected, upon such property, and be admitted to prove his whole debt. If the value of the prop- erty exceeds the sum for which it is so held as se- curity, the assignee may release to the creditor the debtor's right of redemption thereon on re- ceiving such excess; or he may sell the property, subject to the claim of the creditor thereon, and in either case the assignee and creditor, respect- ively, shall execute all deeds and writings neces- sary or proper to consummate the transaction. If the property is not sold or released, and delivered up, or its value fixed, the creditor shall not be al- lowed to prove any part of his debt. 49. No creditor, proving his debt or claim, shall be allowed to maintain any suit at law or in equity therefor, against the debtor, but shall be deemed to have waived all right of action and suit against him, and all proceedings already com- menced, or unsatistied, judgment already obtain- ed thereon, shall be deemed to be discharged and surrendered thereby; and after the debtor's dis- charge, upon proper application and proof to the court having jurisdiction, all such proceedings shall be dismissed, and such unsatisfied judg- ments satisfied of record; provided, that no valid lien existing in good faith thereunder shall be therebj^ affected; and further provided, that a APPENDIX. 845 creditor proving his debt or claim shall not be held to have waived his right of action or suit against the debtor where a discharge has been refused or the proceedings have been determined without a discharge. And no creditor whose debt is provable under this act shall be allowed, after the commencement of proceedings in insolvency, to prosecute to final .iudgment nuj action therefor against the debtor until the question of tlie debt- or's discharge shall have been determined, and any such suit or proceeding shall, upon the ap- plication of the debtor or of any creditor, or the assignee, be stayed to await the determination of the court in insolvency on the question of dis- charge; provided, that there be no unreasonable delay on the part of the debtor or the petitioning creditors, as the case may be, in prosecuting the case to its conclusion; and provided also, that if the amount due the creditor is in dispute, the suit, by leave of the court, in insolvency may proceed to judgment for the purpose of ascer- taining the amount due, which amount may be proven in insolvency, but execution shall be stay- ed as aforesaid; provided further, that where a valid lien or attachment has been acquired or se- cured in any such action, and an undertaking been offered and accepted in lieu of such lien or attachment, the case may be prosecuted to final judgment for the purpose of fixing the liability of the sureties upon such undertaking, but execu- tion against the insolvent upon such judgment shall be stayed. [Amendment approved February 26, 1897; Stats. 1897, c. 38.] 50. Any person who sliall have accepted any preference, having reasonable cause to believe that the same was made or given by the debt- or contrary to any provision of this act, sliall not prove the debt or cla-im oji account of which the preference was made or given; nor shall he receive any dividend thereon until he shall first have surrendered to the assignee all property. 846 APPENDIX. money, benefit, or advantage received by him un- der such preteronce. 51. The court may, upon the application of the assignee, or of any creditor of the debtor, or without any application, before or after adjudica- tion in insolvency, examine upon oath the debtor in relation to his property and his estate and any person tendering or making proof of claims, and may subpoena witnesses to give evidence relating to such matters. All examinations of witnesses shall be had and depositions shall be taken in accordance with and in the same manner as is provided by the Code of Civil Procedure. ARTICLE VII. Discharge. 52. At any time after the expiration of three months from the adjudication of insolvency, but not later than one year from such adjudica- tion, unless the property of the insolvent has not been converted into money, the debtor may apply to the court for a discharge from his debts, and the court shall thereupon order notice to be given to all creditors who have proved their debts, to appear, on a day appointed for that purpose, and show cause why a discharge should not be granted to the debtor; said notice shall be given by mail and by publication at least once a week, for four weeks, in a newspaper published in the county, or city and county, or, if there be none, in a news- pai'er published nearest such county, or city and county: provided, that if no debts have been l)roven, such notice shall not be required. 53. No discharge shall be granted, or if grant- ed shall be valid, if the debtor shall have sworn falsely in his affidavit annexed to his peti- tion, schedule, or inventory, or upon any exam- ination in the course of the proceedngs in insol- venc.v, in relation to any material fact concerning his estate, or his debts, or to any other material APPENDIX. 847 fact; or if he has concealed any part of his es- tate or effects, or any bool^s or writing relating thereto; or if he has been guilty of fraud or will- ful neglect in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and in- ventory, excepting such i)roperty as he is per- mitted to retain under the. provisions of this act, or if he has caused or permitted any loss or de- struction thereof; or if, within one month before the commencement of such proceedings, he has procured his lands, goods, moneys, or chattels to be attached, or seized on execution; or- if he has destroyed, mutilated, altered, or falsified any of his boolvs, documents, papers, writings, or secu- rities, or has made, or been privy to the mak- ing of, any false or fraudulent entry in any book of account or other document with intent to de- fraud his creditors; or if he has given any fraud- ulent preference, contrary to the provisions of this act, or made any fraudulent payment, gift, trans- fer, conveyance, or assignment of any part of his properly, or has lost any part thereof in gam- ing, or has admitted a false or fictitious debt against his estate; or, if, having knowledge that any person has proven such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge; or if, being a merchant or tradesman, he has not, sub- sequently to the passage of this act, kept proper books of account; or if he, or any other person on his account, or in his behalf, has influenced the action of any creditor, at any stage of the pro- ceedings, by any pecuniarj- consideration or obli- gation; or if he ha,s, in contemplation of becom- ing insolvent, made any pledge, payment, transfer, assignment, or conveyance of any part of his prop- erty, directly or indirectly, absolutely or condi- tionally, for the purpose of preferring any creditor or person having a claim against him, or who is. 848 APPENDIX. or may be, under liability for him, or for the pur- pose of preyenting tlie property from cominj? into the hands of the assignee, or of being distributed under this act in satisfaction of his debts; or if he has been convicted of any misdemeanor under this act, or has been guilty of fraud contrary to the true intent of this act: or, in case of voluntary insolvency, has received the benefits of this or any other act of insolvency or bankruptcy, within three years next preceding his application for dis- charge; or if insolvency proceedings in which he could have npplied for a discharge are pending by or against him in the Superior Court of any other county, or city and county, in the State. And before any discharge is granted, the debtor shall take and subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matter, or thing specified in this act, as grounds for withholding such discharge or as in- validating such discharge, if granted. 54. Any creditor opposing the discharge of a debtor shall file specifications in writing, of the grounds of his opposition, and after the debtor has filed and served his answer thereto, which plead- ings shall be verified, the court shall try the is- sue or issues raised, with or without a jury, ac- cording to the practice provided by law in civil actions. 55. If it sliall appear to the court that the debtor has in all things conformed to his duty un- der this act, and that he is entitled under the provisions thereof to receive a discharge, the court shall grant him a discharge from all his debts, except as hereinafter provided, and shall give him a certificate thereof,* under the seal of the court, in substance as follows: In the Su- perior Court of the county of , State of Califor- nia. Whereas. has been duly adjudged an in- solvent under the insolvent laws of this State, and appears to have conformed to all the require- APPENDIX. 849 mcuts of law in that behalf, it is therefore ordered by the court that said be forever discharged from all debts aud claims, which by said insol- vent laws are made provable against his estate, and which existed on the day of , on which the petition of adjudication Avas filed by (or against) him. excepting such debts, if auj^. as are by said insolvent laws excepted from the opera- tion of a discharge in insolvency. Given under i]iv hand, aud the seal of the court, this day of , A. D. . Attest: . Clerk. (Seal) , Judge. 56. No debt created by fraud or embezzle- nipnt of the debtor, or his defalcation as a public officer, or while acting in a fiduciary character, shall be discliarged under this act, but the debt may be proved, and the dividend thereon shall be a payment on account of said debt; and no dis- charge granted under this act sliall release, dis- charge, or affect any person liable for the same debt, for or with the debtor, either as partner, joint contractor, indorser. surety, or otherwise. 57. A discharge, duly granted under this act. shnll. with the exceptions aforesaid, release the debtor from all claims, debts, liabilities, and demands, set forth in his schedule, or which were or might have been proved against his estate in insolvency, and may be pleaded by a simple aver- ment that on the day of its date such discharge was granted to him, setting forth the same in full, and the same shall be a complete bar to all suits brought on any such debts, claims, liabili- ties, or demands, and the certificate shall be prima facie evidence in favor of such fact and of the regularity of such discharge; provided, however, that any creditor of said debtor, whose debt was proved or provable against the estate in insol- vency, who shall see fit to contest the validity of such discharge on the ground that it was fraud- ulently obtained, aud who has discovered the facts 850 . . APPENDIX. constituting the fraud subsequent to the discharge, may, at any time within t^Yo years after the date thereof, apply to the court which granted it to set it aside and annul the same, or if the same shall have been pleaded, the effect thereof may be avoided collnterally upon any such grounds. 58. The refusal of a discharge to the debtor shall not Mffect the administration and distribution of his estate under the provisions of this act. ARTICLE Till. Fraudulent Preferences and Transfers. 59. If any debtor being insolvent, or in con- templation of insolvency, within one month be- fore the tiling of a petition by or against him, with a view to give a preference to any creditor, or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, mortgage, assignment, transfer, sale, or convey- ance of any part of his property, either directly or indirectly, absolutely or conditionally, to any one, the person receiving such payment, pledge, mortgage, assignment, transfer, sale, or convey- ance, or to be benefited thereby, or by such at- tachment or seizure, having reasonable cause to believe that such debtor is insolvent, and that such attachment, seizure, payment, pledge, mort- gage, conveyance, transfer, sale, or assignment is made with a view to prevent his property from coming to his assignee in insolvency, or to prevent the sanje from being distributed ratably among his creditors, or to defeat the object of, or in any way hinder, impede, or delay the operation of, or to evade any of the provisions of this act, such attachment, sequestration, seizure, payment, pledge, mortgage, transfer, sale, assignment, or conveyance, is void, and the assignee, or the re- APPENDIX. 851 ooiver, may recover the property, or the value thereof, as assets of such insolvent debtor; and if such payment, pledge, mortgage, conveyance, sale, assignment, or transfer is not made in the usual and ordinary course of business of the debtor, or if such seizure or sequestration is made under a judgment which the debtor has confessed or of- fered to allow, that fact shall be prima facie evi- dence of fraud. Ail assignments, transfers, con- veyances, mortgages, or encumbrances of real es- tate shall be deemed, under this section, to have been made at the time the instrument conveying or affecting such realty was filed for record in the county recorder's office of the county, or city and county, Avhere the same is situated. ARTICLE IX. Penal Clauses. 60. From and after the tailing effect of this act, if any debtor or insolvent shall, after the commencement of proceedings in insolvency, se- crete or conceal any property belonging to his es- tate, or part with, conceal, or destroy, alter, mu- tilate, or falsify, or cause to be concealed, de- stroyed, altered, mutilated, or falsified, any book, deed, document, or writing relating thereto, or re- move, or cause to be removed, the same or any part thereof, with intent to prevent it from com- ing into the possession of the assignee in insol- vency, or to hinder, impede, or delay his assignee in recovering or receiving the same, or make any payment, gift, sale, assignment, transfer, or con- veyance of any property belonging to his estate, with like Intent, or shall spend any part thereof in gaming; or shall, with intent to defraud, will- fully and fraudulently conceal from his assignee, or fraudulently or designedly omit from his sche- dule any property or effects whatsoever; or if, in case of any person having, to his knowledge or be- 802 APPENDIX. lief, proved a false or fictitious debt against his estate, he shall fail to disclose the same to his assignee within one month after coming 1;o the knowledge or belief thereof; or shall attempt to account for any of his property by fictitious losses or expenses; or shall, within three months before commencement of proceedings of insolvency, un- der the false pretense of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels, with intent to defraud ; or shall, with intent to defraud his creditors, within three months next before the commencement of proceedings in insolvency, pawn, pledge, or dispose of, otherwise than by bona tide transactions in the ordinary way of his trade, any of his goods and chattels which have been obtained on credit and remain unpaid for, he shall be deemed guilty of misdemeanor, and, upon conviction thereof, shall be punished by im- prisonment in the county jail for not less than three months nor more than two years. AKTICLE X. Miscellaneous. 61. If any debtor shall die after the order of adjudication, the proceedings shall be con- tinued and concluded in like manner and with like validity and effect as if he had lived. 62. Pending proceedings by or against any person, copartnership, or corporation, no statute of limitations of this State sliall run against a claim which in its nature is provable against the estate of the debtor. 63. Any creditor, at any &tage of the proceed- ings, may be represented by his attorney or duly authorized agent. 64. It shall be the duty of the court hav- ing jurisdiction of the proceedings to exempt and set apart, for tlie use and l)enefit of said insolvent. APPENDIX. 853 such real and personal property as is by law ex- empt from execution; and also a homestead, in the manner provided in section one thousand four hundred and sixty-five of the Code of Civil Pro- cedure. But no property or homestead shall be set apart, as aforesaid, until it is first proved that notice of the hearinu* of the application therefor has been duly given by the clerk, by causing to be posted in at least three public places in the county at least ten days prior to the time of such hearing, setting forth the name of said insolvent debtor, and tiie time and place appointed for the hearing of such application, which said notice shall briefly indicate the homestead sought to be exempted or the propertj^ sought to be set aside; and the de- cree must show that such proof was made to the satisfaction of the court, and shall be conclusive evidence of that fact, 65. The filing of a petition by or against a debtor upon which, or upon an amendment of Avhir-h, an order of adjudication in insolvency may be made, shall be deemed to be the commence- ment of proceedings in insolvency under this act. 66. Words used in this act in the singular, in- clude the plural, and in the plural, the singular, and the word "debtor" includes partnerships and corporations, 67. Upon the filing of either a voluntary or involuntary petition in insolvency, a receiver may be appointed by the court in which the pro- ceeding is pending, or by a judge thereof, at any time before the election of an assignee, when it appears by the verified petition of a creditor that the assets of the insolvent, or a considerable por- tion thereof, have been pledged, mortgaged, trans- ferred, assigned, conveyed, or seized, on legal pro- cess, in contravention or violation of the provisions of section fifty-nine of this act, and that it is nec- essary to commence an action to recover the same. The appointment, oath, undertaking and powers Code Civ. Proc— 72. S54 APPENDIX. of such receiver shall in all respects be res:nlated by the general laws of the state applicable to re- ceivers. When an assignee is chosen, and has qualified, the receiver shall forthwith return to court an account of the assets and property which have come into his possession, and of his dis- bursements, and a report of all actions or pro- ceedings commenced by him for the recovery of any property belonging to the estate, and the court shall thereupon summarily hear and settle the receiver's account, and shall allows him a just compensation for his services, including a rea- sonable attorney's fee, whereupon the receiver shall deliver all property, assets, or effects re- maining in his hands, to the assignee, who shall be substituted for the receiver in all pending ac- tions or proceedings. 68. All sections of the Code of Civil Proced- ure of the state of California relating to con- tempts are hereby made applicable to all proceed- insrs under this act. 69. When an attachment has been made and is not dissolved before the commencement of proceedings in insolvency, or is dissolved by an undertaking given by the defendant, if the claim upon which the attachment suit was commenced is proved against the estate of the debtor, the plaintiff may prove the legal costs and disburse- ments of the suit, and of the keeping of the prop- erty, and the amount thereof shall be a preferred debt. In all contested matters in insolvency the court may, in its discretion, award costs to either party, to be paid by the other, or to either or both parties, to be paid out of the estate, as .justice in equity may require; in awarding costs, the court may issue execution therefor, in all involuntary cases under this act, the court shall allow the pe- titioning creditors out of the estate of the debtor, if any adjudication of insolvency be made, as a preferred claim, all legal costs and disbursements incurred by them in that behalf. APPENDIX. 855 70. The court may, upon the application of the debtor, if it be a voluntary petition, or of the peti- tioning creditors, if a creditor's petition, dismiss the petition and discontinue the proceedings at any time before the appointment of an assignee, upon giving ten days' notice to the creditors, in the same manner that notice of the time and place of an election of an assignee is given, if no cred- itor files written objections to such dismissal; pro- vided, however, that by consent of all creditors the proceedings may be dismissed at any time; After the appointment of an assignee, no dismis- sal shall be made without the consent of all par- ties interested in or affected thereby. 71. An appeal may be taken to the Supreme Court in the following cases: 1. From an order granting or refusing an ad- judication of insolvency; 2. From an order made at the hearing of any account of an assignee, allowing or rejecting a creditor's claim, in whole or in part; 3. From an order granting or overruling a mo- tion for a new trial; 4. From an order settling an account of an as- signee; 5. From an order against or in favor of set- ting apart homestead or other property claimed as exempt from execution; G. From an order granting or refusing a dis- charge to the debtor. The notice, undertaking, and procedure on ap- peal shall conform to the general laws of this state regulating appeals in civil cases, except that when an assignee has given an official undertaking and appeals from a judgment or order in insolvency, his official undertaking stands in the place of an undertaking on appeal, and the sureties therein are liable on such undertaking; provided, how- ever, that an appeal from an order granting or re- fusing an adjudication of insolvency shall not stay proceedings unless a written undertaking be 856 APPENDIX. entered mto on the part of the appellant, with at least two sureties, In such an amount as the court, or a judge thereof, may direct, but not less than double the value of the property involved, to the effect that if the order appealed from be affirmed, or the appeal dismissed, appellant will pay all costs and damages which the adverse par- ty may sustain by reason of the appeal and the stay of proceedings. 72. The Insolvent Act of eighteen hundred and eighty, and all amendments thereto, are hereby repealed; provided, however, that such re- peal shall in no mnnner invalidate or affect any case in insolvency instituted and pending in any court on and prior to the day when this act shall take effect. INTERPRETERS. An Act to authorize the appointment of an In- tepreter of the Italian language and dialects, in Criminal Proceedings, in cities, and cities and counties, of one hundred thousand inhab- itants. § 1. Appointment of interpreter. § 2. Salary. § 3. Repeal. Section 1. In all cities and cities and counties of over one hundred thousand inhabitants, where an interpreter of the Italian language is necessary, it shall be the duty of the mayor and police judge of such city, or city and county, and of the judge of the Superior Court of said city and county, or of the county in which said city is situated, or where there are more judges than one, then it shall be The duty of the presiding judge of said Sui^erior Court, and the presiding judge of the police court and the mayor, to appoint an interpre- APPENDIX. 857 ter of the Italian language, who must be able to interpret the Italian language and dialects into the English language, to be employed in criminal pro- ceedings when necessary in said cities, or cities and counties. [Amendment approved March 9, 1895.1 Sec. 2. This act shall take effect immediately. [Stats. 1895.] Sec. 2. The said interpreter shall receive a sal- ary of one thousand five hundred dollars per an- num, which shall be paid out of the general fund of such city, or city and county. Sec. 3. This act shall not repeal any act here- tofore made and now in force for the appointment of interpreters, except so much of any act which may conflict with this act in the appointment of Italian interpreters. Sec. 4. This act shall tali:e effect and be in force from and after its passage. [Approved March 12, 1885; 1885, 108.] JUSTICES OP THE PEACE. An A(\ fixing Jurisdiction and providing Compen- sation for Justices of tlie Peace in cities and towns. § 1. Powers of justice of the peace. § 2. Compensation. I*owers of justices of the peace. Section 1. Justices of the peace in any town- ship composed in whole or in part of an incorpo- rated city or town, and justices of the peace in any city or town, in addition to the jurisdiction and powers now conferred upon them, are authorized and empowered to exercise all powers, duties, and jurisdiction, civil and criminal, of police judges, judges of police courts, recorders' courts, or may- ors' courts within such cities. 858 APPENDIX. Compensation. Sec. 2. The compensation of the justice of the peace of any city or town, who is paid by salary, shall be by warrants for equal monthly payments, drawn each month upon the salary fund of such city or town if there be one; or if no salary fund be provided, then upon the general fund of such city or town, such warrants to be audited and paid as are salaries of oth er city olTicials. Sec. 3. This act shall talvc effect immediately. [Approved March 9, 1883; 1883, 63.] An Act concerning the Justices' Courts of the City and County of San Francisco, and the service of Summons issued therefrom. Summons. Section 1. The summons issued from the jus- tices' courts may be served and returned as pro- vided in Title Y., Part II., of the Code of Civil Procedure. Sec. 2. This act shall take effect from and after its passage. [Approved April 3, 1876; 1875-6, 855.] An Act to create a Court in and for the Town of Berkeley, State of California. 9 1. Justice court in Berkeley. § 2. Two justices. § 3. Jurisdiction. § 4. Rules of practice. § 5. Fees. § 6. Fines. § 7. Compensation. § 8. Disqualification. Section 1. There is hereby created and estab- lished in and for the town of Berkeley, State of California, a court, to be known as the justice's APPENDIX. 859 court of the town of Berkeley, which court shall consist of two justices of the peace, and the judi- cial power of the town shall be vested in said justice's court and such other courts as may be provided by law. Sec. 2. Two justices of the peace shall be elect- ed at the time that other justices are elected, whose terms of office shall be two years; provided, that the two justices elected for the town of Berlveley at the general election held November sixth, eighteen hundred and ninetj-four, shall hold office as justices of the town of Berl^eley until the first Monday in January, eighteen hundred and ninety-seven. The justices' courts shall always be open, legal holidays excepted. Sec. 3. The justice's court and the justice there- of, shall have jurisdiction concurrently with other justices' courts of all actions and proceedings, civil and criminal, arising within the corporate limits of the town, and which might be tried in a justice's court; provided, however, that within the corporate limits of the town, the town justices of the peace and the town justices' courts shall have exclusive jurisdiction and poAver over all actions for the recovery of any tine, penalty, or forfeiture prescribed for the breach of any ordinance of the town, of all actions founded upon any obligations or liability created by any ordinance, and of all prosecutions for any violation of any ordinance; provided, moreover, that the board of trustees may, by ordinance, select both or either of said justices to have jurisdiction of all criminal prose- cutions arising under ordinance. Sec. 4. The rules of practice and mode of pro- ceeding shall be the same as are or may here- after be prescribed for justices' courts. Sec. 5. The justices of the peace shall be enti- tled to charge and receive for their services such fees as are or may be allowed by law to justices of the peace for lilve 'services, and to collect said 860 APPENDIX. fees ill the same manner as other justices' fees are collected, excepting that for their services in crim- inal ])roseciition for violation of ordinances they shall be entitled to receive only such fees or sal- ary as the board of trustees may by ordinance prescribe, which compensation, when once fixed, shall not be altered Avithin two years thereafter. Sec. 6. Each justice of the peace shall pay to the treasurer of said town, on the first Monday of each month, all fines by him collected for violation of ordinances, and file a full monthly report with the town clerlv, showing the amount of all fees collected, from Avhom, and in what case such fines and fees were collected and paid. Sec. 7. The board of trustees may, at their op- tion, by ordinance, fix a monthly compensation for such justices, which said compensation shall be in full for all services rendered as justices; pro- vided, that when such monthly compensation is so fixed all fees and fines, other than those required by law to be paid lo the county, shall be paid to the town treasurer. Sec. 8. In all cases where for any reason either of the justices is disqualified, or in any case of siclvuess or inability to act, he may call in the other justices, and if both are disqualified or una- ble to act, any justice of the peace residing in the county. Sec. 9. This act shall talve effect immediately after its passage. [Approved March 27, 1895; Stats. 1895, p. 204.] An Act in relation to Jurors in Courts of Justices of the reace in the County of Humboldt. Cause of challenge in justice's court in Humboldt count3^ Sec. 1. In the trial of any civil action in the court of a justice of the peace, in the county of APPENDIX. 861 Humboldt, it shall be a jjood cause of challenge to auy individual juroi" that he has served as a trial juror in a civil action in said court, in the same township, twice at any time within one year next preceding. Sec. 2. Jurors in said courts shall receive, as compensation for their services, the sum of two dollars per day. [Approved March 3, 1874; 1873-4, 229.] An Act relative to Executions from Courts of Jus- tices of the Peace of the several Townships of the County of Alameda. This act, which required executions from jus- tices' courts to be served by the sheriff or a con- stable of the township in which the court issuing it was held, was repealed by act of April 1, 1880, 19 (Ban. ed. 62). Took effect from passage. [Ap- proved P^ebruary 2o, ]S78; 1877-8, lOG.] LIBEL. An Act concerning Actions for Libel and Slander. § 1. Undertaking. § 2. Sureties. § 3. Exceptian to sureties. S 4. Justification. § 5. Approval— new mortgage. § fi. Failure to file bond. § 7. Costs. Section 1. In an action for libel or slander the clerlv shall, before issuing the summons therein, require a AA^ritten undertaking on the part of the plaintiff in the sum of five hundred (.500 dollars, with nt least two competent and sufficient sureties, specifying their occupations and residences, to the 832 APPENDIX. effect that if the nctioii be dismissed or the defend- ant recover judgment, that they will pay such- costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, or on an appeal, not exceeding the sum. specified in the undertaking. An action brought without filing the undertaking required shall be dismissed. Sec. 2. Each of the sureties on the undertaking mentioned in the first section shall annex to the- same an afiidavit that he is a resident and house- holder or freeholder within the county, and is worth double the amount specified in the under- taking, over and above all his just debts and lia- bilities, exclusive of property exempt from execu- tion. Sec. 3. Within ten days after the service of the summons the defendants, or either of them, may give to the plaintiff or his attorney notice that they or he except to the sureties and require their justification before a judge of the court at a spe- cified time and place, the time to be not less than five nor more than ten days thereafter, except by consent of parties. The qualifications of the sure- ties shall be as required in their affidavits. [In effect April 16, 1880.] Sec. 4. For the purpose of justification, each of the sureties shall attend before the judge at the time and place mentioned in the notice, and may be examined on oath touching his sufficiency in such manner as the judge in his discretion shall think proper. The examination shall be reduced to writing if either party desires it. Sec. 5. If the judge find the undertaking suffi- cient, he shall annex the examination to the un- dortnking, and indorse his approval thereon. If the sureties fail to appear, or the judge finds the sureties or either of them insufficient, he shall or- der a new undertaking to be given. The judge may also at any time order a new or additional APPENDIX. 863 undertaking upon proof that the sureties have be- come iusutticient. in case a new or additional un- dertalving is ordered, all proceedings in the case shall be stayed until such undertaking is executed and filed, with the approval of the judge. Sec. 6. If the undertaking as required be not filed in live days after the order therefor, the judge or court shall order the action to be dis- missed. Sec. 7. In case plaintiff recovers judgment, he shall be allowed as costs one hundred (100) dol- lars, to cover counsel fees, in addition to the other ■costs. In case the action is dismissed, or the de- fendant recover judgment, he shall be allowed one hundred (100) dollars, to cover counsel fees, in ad- dition to the other costs, and judgment therefor shall be entered accordingly. [Approved March 23. 1872; Stat. 1871-2, p. 533.] MOllTGAGES. An Act to abolish Attorney's Fees and other charges in Foreclosure Suits. Attorney's fee on foreclosure to be fixed by court. Section 1. In all cases of foreclosure of mort- gnge the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had. any stipulation in said mortgage to the contrary notwithstanding. Sec. 2. All acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed, and this act shall take effect and be in force from and after its passage. [Approved March 27, 1874; 1873-4, 707.] 864 APPENDIX. PROCESS. An Act coucerning tlie Execution of Final Process in certain cases. Service of final process in new counties. Section 1. In all cases where new counties have been or may hereafter be erected, and executions, orders of sale upon foreclosures of mortgages, or other process atfecting specific real estate, have been or may hereafter be adjudged by the final judgment or decree of a court of competent juris- diction, to be executed by the sheriff of the county in which such real estate was originally situated, such process may be executed by the sheriff of the new county in which such real estate is found to be situated, with the lil^e effect as if he were the sheriff of the county designated in the judgment, decree, or order of sale, to execute the same. Sec. 2. This act shall talve effect and be in force from and after its passage. [Approved March 16, 1874; 1873-4, 365.] An Act to declare valid Writs, Process, and Certi- ficates issued by the Superior Courts of this State, or the Clerlis thereof, before such Courts shall have been legally provided with Seals. Writs, process, etc., declared valid. Section 1. No writ, process, or certificate issued by any Superior Court, or the clerli thereof, be- fore such court shall have been legally provided Avith a seal, shall be invalid, if in other respects valid, by reason of the absence of a lawful seal; but every such writ, process, or certificate, APPENDIX. SG5 M-lietlior iiiidei- the seal of oue of the courts abol- ished ou the first day of January, eighteen hun- dred and eighty or under the private seal of the clerk, or under any other seal, or issued without a seal, shall have the same validity as if it had been authenticated by a legally adopted seal of the court out of which (tr by whose clerk it was is- sued. Sec. 2. This act shall take effect immediatelv. [Approved March 31. 1880; 1880, 19 (Ban. ed. 62."i] RECORDS. An Act to transfer the Records, Papers, and Busi- ness of the Courts existing on the thirty-first day of December, eighteen hundred and sev- enty-nine, in this State, to the Courts now ex- isting therein. § 1. Supreme Court, successor of court of same name. § 2. Superior Courts, successor of what courts. § 3. Police court of San Francisco, transfer of cases to. Supreme court, successor of court of same name. Section 1. The Supreme Court shall, for all pur- poses, be considered the successor of the court of the same name Avhich was abolished on the first day of January, eighteen hundred and eighty, and to have succeeded to all its unfinished business. It shall have jurisdiction of, and shall hear and de- termine, or otherwise dispose of, all causes, pro- ceedings, appeals, motions, and matters pending on said day in the court superseded by it; and also, of all appeals taken to such court before or after such day, from judgments or orders of any of the inferior courts abolished by the constitution. Cndo fix. Proc— To. 866 APPENDIX. From and after the first day of January, eighteen hundred and eighty, the Supreme Court shall have the custody of all records, books, and papers of the former Supreme Court, and the same jurisdic- tion over its judgments, orders, and proceedings as if they had in the first instance been renaered, made, or commenced in the present court. All laws relating to the former court shall, as far as applicable, be considered as applying to the pres- ent court. All rules of the former court which were in force on the first day of January, eighteen hundred and eighty, and not inconsistent with the constitution, shall continue in force as rules of the present court until altered, abolished, or super- seded by the order of the court. Superior courts, successor of what courts. Sec. 2. The Superior Court of each county in this state shall, for all purposes, be considered the successor of the district, county, and probate oration, that said 872 APPENDIX. Coulterville and Yosemite Turnpike Company isliouid liave tlie exclusive riglit to construct and maintain a wagon road on tlie nortlierly or Coul- terville side of tlie :\ierced river, from a point at or near Crane Flat, past the line of survey of tliat reservation from tlie public lands of tlie United States, known as the iosemite Grant, to and up- on the level of the Yosemite N'alley, and should have the exclusive right to maintain a road on .•>aid side of the Merced liiver, and collect tolls tnereon for a term of ten yeai's from the comple- tion thereof; and the said road, in pursuance of such resolution and agreement, was completed on the eighteenth day of June, eighteen hundred and seventy-four, and said commissioners, on the third uay of July, eighteen hundred and seventy-four, accepted the same as completed. iSec. '1. And whereas, in the year eighteen hun- dred and seventy-four the legislature of the State of California passed an act entitled "An act grant- ing the right of way to the Yosemite Turnpike Koad Company to construct a toll road over the Yosemite Grant," approved February seventeenth, eighteen hundred and seventy-four and under and by virtue of said act said Yosemite Turnpike Road Company constructed and completed a road on the northerly side of the Merced river, from neai* Gentry's Station, to a point on the level of the Yosemite Valley, near El Capitan, which said road was completed in the month of July, eigh- teen hundred and seventy-four. Sec. 3. And whereas, the last mentioned road was on the northerly, or Coulterville, side of the Merced river, and conllicted with the exclusive privilege so granted to said Coulterville and Yo- semite Turnpike Company, and by reason of the fonstruction and completion of the same the wag- on road completed by said Coulterville and Y'o- semite Turnpike Company then became little used APPENDIX. 873 and said Coultervillc and Yosemito Turnpike Com- pany claims to have suffered great loss and dam- age, by reason of the loss of tolls on its said road, and the depreciation in value of said road. Sec. 4. The said Coulterville and Yosemite Turnpilie Company is hereby authorized to com- mence and prosecute a civil action, in the super- ior court of the county of Sacramento, against the State of California, to recover such amount, if any, as it may in law or equity be entitled to re- ceive as compensation for the injuries aforesaid. Summons in said action shall be issued, and to- gether with a copy of the complaint served upon the Attorney General of the State, and it shall be his duty to defend said action, and to interpose thereto such defenses, legal or equitable, as may exist, and which a private person under like cir- cumstances might interpose. In beginning this ac- tion, it is expressly understood that said Coulter- ville and Yosemite Turnpike Company shall file with the superior court of the county of Sacra- mento a bond in sufficient sum to cover the costs of court, such as may be deemed sufficient and approved by said court, and an additional bond in the sum of five hundred dollars, to be paid as fees for covmsel employed by the State in the defense of the case: but in the event the .nidgment is in favor of said Coulterville and Y^osemite Turnpike Company, it shall in no manner be responsible, and its bondsmen shall be released from all liabil- ity. Sec. 5. If, in said action, a .I'ndgment shall be entered in favor of the plaintiff therein, it shall be the duty of the Attorney General to take an ap- peal therefrom to the supreme court of the State. and if such judgment shall be finally affirmed by said supreme court, then the plaintiff in said ac- tion shall file a certified copy of said judgment with the Governor of the State; and it is herebv 874 APPENDIX. made the duty of the Governor, by message, to inform the next legislature of the existence of said judgment against the State. Sec. 0. This act shall take effect from and after its passage. [Approved March 31, 1891; Stats. 1891, p. 275.] STATUTE OF LIMITATIONS. An Act respecting the Limitations of Actions, Bankers' certificates of deposit. Section 1. Where bankers' certificates of de- posit have heretofore been given to any party since deceased, and not found until after admin- istration of his or her estate, an action may be maintained thereon by the heirs or legal repre- sentatives at any time within six months after such finding. Sec. 2. This act shall take effect from and after its passage. [Approved March 11, 1872; 1871-2, 319.] APPENDIX. 875 An Act supplementary to an Act entitled an Act defining- tlie Time for commencing Civil Ac- tions, passed April twenty-second, eighteen hundred and fifty. No limitation to action for money deposited with bankers. Section 1. There shall be no limitation upon the right to maintain an action for the recovery of money or other property deposited with any bank, banker, trust company, or savings and loan so- ciety. Sec. 2. All acts and parts of acts in conflict herewith, so far as the same are in conflict, are hereby repealed. Sec. 3. This act shall take effect from and af- ter its passage. [Approved March 16, 1872; 1871- 2, 401.1 INDEX. ABATE:\rENT. action not by death. § 385. action, not by transfer, § 385. of nuisance bv action. § 731. ABBREVIATIONS AND NUMBERS, use of, § 186. ABSENCE, pnblication, service by, § 413. waiver of jnry. is. § 031 . witness, of, deposition may be talien. § 2020. witness, of, postponement of trial, § 595. from state, effect on statute of limitations. § 351. See Nonresidence. ABSENTEE, probate proceedings, appointment of attorney for. § 1718. ABSTRACT, costs for. when allowed, § 799. how certified. §800. in partition suits. §§ 799, 800. ACCIDENT, new trial on o-round of, § 657. ACCOUNT, executors' and administrators' §§ 1417. 1612-16.38. 16-52. 1653. 1735-1739. particulars, further of, § 454. plendinu". items of, § 454. public administrator, of, §§ 1735-1739. reference of, § 639. reference of, on .iuduinent by default, § 585. copy of, may be demanded, § 454. further account may be ordered. § 454. to l>e rendered by persons trusted with estate. § 1461. to be rendered by surviving partner, § 1585. of n'oint guardian may be allowed, § 1775. ACCRUED RIO ITT. not affected by code, § 8. ACKNOWLEDGEMENT, judges who may take. § 179. Code Civ. Pioc— 74. 878 INDEX. ACTION. See various titles, e. g. Civil Actions; Partition, Quieting Title, etc. abatement of, § 385. alienation, not to prejudice, § 747. arbitration revoking, submission to, action for, § 1290. aiTest, against bail ' on, § 490. attachment, on undertaking in, § 552. causes of, joinder of, § 427. civil, defined, §§ 25, 30. code did not affect pending, § 8. commencement of, §S 405-416. commencement of (limitations), § 350. consolidation, § 1048. death, bv personal representatives, for caus- ing, §377. defined, § 22. dismissal of, § 581. division, civil and criminal, § 24. executors, etc., power to bring, §§ 1581-1584. fire commissioners, not to be sued, § 390. fire departments, how sued, § 390. form of, but one, § 307. guardian, power to bring, § 1769. justices' courts, in, §§ 832-925. justices' courts, code provisions applicable to, §925. liens, several may be joined in one, § 1196. limitation of, §§ 312-363. limitation of, real property, §§ 315-328. limitation of, other than real property, §§ 335- 348. parent, by, for injury, etc., to child, § 376. parties, §§.367-389. parties, plaintiff and defendant, § 308. pending, deemed, when, § 1049. pending, ground for demurrer to complaint, §430. place of trial, §§ 392-400. pleading in, §§ 420-476. postponement of trial, § 595. provisional remedies, on undertaking in, § 552. quiet title, §§.738-748. receiver, action by, § 568. register, § 1052. INDEX. 879 ACTION— Contiuuod. seduction, § 375. ships, against, §§813-827. successive, on same contract, § 1047. summons, etc., §§ 405-410. title of, §426. trial of, §§ 600-645. what it. is, § 22. ACTS of foreign executive, as evidence, § 1918. of municipal corporation, as evidence, § 1918. declaration of party, as evidence, § 1870. ADJUUIiNMENT. See Continuance, Postpone- ment. absence of n^di^e, §§ 139, 140. contesting county elections, in, § 1121. holiday, by reason of, § 1.S5. jury, absence of durinii-, § 017. jury, discharge by adjournment of term, § 617. supVeme court, of, § 48. suiierior court, of, § 74. ADJUTANT-GENERAL. See National Guard. ADMINISTRATOR. See Estates of Deceased Persons; Executors and Administrator^s. ADMISSION, attorney to practice, §§ 275-280. postponement, may be avoided by, § 595. service of summons of. § 41.5. b.y failure to verify answer, § 446. of genuineness of instrument by failure to ver- ify answer, § 447. of genuineness of instrument by plaintiff, § 448. when genuineness of instrument not admit- ted, §'449. ADVERSE CLAIM, personal property, to, action to determine, § 1050. real property, to, action to determine, § 738. ADVERSE PARTY in intervention, § 385. on appeal, § 938. to produce writing, § 1938. ADVERSE POSSESSION, judgment under, §§ 322, 333. landlord and tenant, effect of relation of on, §326. occupation, actual, under claim of title, § 324. written instrument, under, §§ 322, 323. written instrument, not under, § 325. 8S0 INDEX. AFFIDAA'li'S. definition of, § 2003. may be used for Avliat, S 2009. before whom to be talven, §§ 179. 259. 2012. before whom taken within the United States, § 2013. before wliom taken in foreij:::n conntrv or state, § 2014. certificate required to foreign atlidjivit, § 2015. certificate required in another state, § 2013. defective heading, § 104G. for arrest of judgment debtor, § 715. for attachment, what to state, § 538. for a contempt, § 1211. for an inj unction, § 527. for judgment by confession, § 1133. for mandate, requisites of, § 1086. for prohibition. § 1103. for order to allow amendment, § 473. for order of arrest, § 481. for order of arrest in justices' court, § 862. for order to examine imprisoned witness, § 1996. for postponement of action, § 595. for postponement in justices' courts, § 876. for publication of summons, § 412. for publication in partition suits, § 757. for review, when and by whom made. § 1069. for submitting controversy without action, S 1138. in proceedings to contest election, § 1115. in proceedings to contest administrator's bond, § 1394. in proceedings against joint debtors, § 991. in proceedings to try right of otfice, § 804. in proceedings to perpetuate testimony, § 2084 in replevin where delivery is claimed, § 510. juror may make, as to misconduct of jury, § 657. may be taken by judicial officers, § 179. of concealment or materialitv of witness, § 1988. of costs and disbursements. § 1033. of justification of bail, §495. of mariners' claim of wages, § 825. of notice of filing award, § 1286. of plaintiff denying execution of instrument §448. INDEX. H81 AFFI I ) AVI TS— Continued. of printer, evidence of publication, § 2010. of property due judsment debtor, § 717. of sole trader, § 1818. of service and mailiun- of notices, § 1306. of return of summons, § 410. « of service of summons, § 415. of sureties on bonds, § 1U.j7. of publication, what to specify, § 2010. of publication, where filed, § 2011. of title to property claimed by third party, § 519. of witness for exoneration from contempt. § 2069. on application for writ of review, § 1069. on application for injunction, §§ 526, 527. on application to pei-petuate, testimony, § 2084. on claim and delivery, § 510. on motion for continuance, § 595. on motion to dissolve injunction, § 532. on motion for a new trial, when to be filed and served, § 658. on objections to appointment of referee, § 642. on submission of controversy, § 1138. prejudice of judjie. affidavits to, § 170. service of copy, in arrest, §484. service of, in replevin, i^ 512. service of, in injunction, § 527. to nccompanv summons against judgment debtor, § 991. fo ho filed bv sheriff in replevin, § .520. to bill of costs, § 1033. to compel judgment debtor to answer, § 715. to copy of assignment to redemptioner, § 705. to discharge attachment, § 556. to oppose discharge of attacliment, § 557. to oppose dissolution of injunction, § 532. to petition to obtain further security from ad- ministrator, § 1397. to show misconduct of jury, § 658. to vacate order of arrest. § 503. verifying pleadings, § 446. when affiant is nonresident, § 446. when affiant is a corporation, § 446. when state is a party, not required, § 446. when valid, though defective, § 1046. when may be used, § 2009. 882 INDEX. AFFINITY. See Consanguinity. judge, of to party disqualifies judge, § 170. juror, of, to party disqualifies juror, § 602. referee, of, to party, disqualifies referee, § 641. AFFIRMATION, form of, §2097. oath includes, § 17. AGENT, declarations of, § 1870, sub. 5. for absentees on distribution, §§ 1691-1695. appointment of, to take property on distribu- tion, § 1691. to furnish bond in such case, § 1692. liability of, on bonds, § 1695. to render annual account to probate court, § 1694. ALAMEDA COUNTY, act relative to executions in justices' court in Alameda repealed, p. 861. act providing for superior judge, p. 801. ALIEN, effect of alienage on limitation of actions, §354. ALIENATION, after suit commenced, effect of, in real actions, §§ 740, 747. ALLEGATIONS. See Answers; Complaint. affirmative, by whom must be proved, § 1869. denials of, how made, § 437. if not controverted, deemed admitted, § 462. in pleadings against joint debtors, § 993. sham and irrelevant to be stricken out, § 453. material, what are, § 463. material only need be proved, § 1867. negative, when must be proved, § 1869. to be liberally construed, § 452. redundant, striking out, § 453. when deemed admitted, § 462. when deemed controverted, § 462. burden of proof of, §§ 1869, 1981 variance, §§ 469-471. in particular actions. See particular title. ALLOWANCE for support of family of decedent, §§ 1464. 1467. how to be paid, § 1467. ALTERATION, writing, must be accounted for by party producing, § 1982. AMBIGUITY, demurrer, ground for, complaint, § 430. demurrer, ground for, answer, § 444. AMENDMENT, answer before, effect of, §472. INDEX. 883 AMENDMENT— Continued. complaint of, filinj? and serving, §§ 432, 472. demurrer after, of course, § 472. demurrer before, effect of, § 472. errors and defects to be disregarded, § 475. fictitious name, where real name discovered, § 474. filing, §§432, 472. justices' court, pleadings in, § 859. mistake, in any respect, § 473. party, striliing out name of, § 473. power of, general, § 128. process, crenerally. of, § 128. serving, §§ 432, 472. supplemental pleadings, § 464. variance, §§ 469-471. by correcting name of party. § 473. terms may be imposed, § 473. to pleadings or proceedings generally, § 47.3. to pleadings in justices' courts, § 859. AMICABLE ACTIONS, submission of contro- versy. §§ 1138-1140. ANOTHER ACTION PENDING, ground for de- murrer. § 430. ANSWER, allegations in, what are material, § 463. amendment of, § 472. appearance, answer is, § 1014. attorney, of, to accusation, §§ 294-296. complaint, amended, to, § 432. conditions precedent, pleading, § 457. construction of, § 452. counterclaim, §§ 4.38-440. counterclaim, when omission to set up waives, §439. cross-complaint, to, § 442. cross-demands compensate each other, § 440. default of, judgment for, § 585. defective heading to. § 1((40. defenses not I'aised by, waived, §§ 4.34, 439. demurrer at same time with answer, § 431. demurrer, effect on, § 472. demurrer, matters the subject of. not appear- ing on face of complaint, mav be taken by, § 433. demurrer to, §§ 443, 444. 884 INDEX. ANSWER— Continued. denials, allegation not denied, admitted, § 642. disclaimer, § 7.39. errors and defects in, § 475. escheat estate, answer to information, § 1271. escheated estate, attorney-general's answer to claim for, § 1272. estoppel, §§1908, 1962. extension of time for filing, §§ 473, 1054. filed, must be, §465. generally, § 437. gold coin, etc., § 667. husband and wife, §§370, 371. improvements, setting up value of, § 741. information or belief, if defendant has no, § 437. injunction after, § 528. intervention to complaint on, § 387. irrelevant, strilving out, § 453. joint debtors, answer in proceedings after judgment, § 992. judgment, pleading, § 456. justices' court, in, §§ 855, 856, 860. libel, in action for, § 461. limitations, statute of, pleading, § 458. lost, how supplied, § 1045. mandate, to petition for writ of, §§ 1089, 1094. mortgage, § 726. new matter deemed controverted, § 462. partition of real estate, in, § 758. probate in contest on, § 1312. quiet title, in action to, § 739. redundant matter, striking out, § 453. separately stated, defenses must be. § 441. served, must be, § 465. several defenses, may contain, § 441. sham, may be striclien out, § 453. ships, etc., in actions against, § 821. signature to, § 446. slander, in action for, § 461. statute, private, pleading, § 459. strilving out, § 453. supplemental, § 464. time for filing, §407. time for filing, enlarging, §§ 473, 10.54. verification, § 446. i INDEX. .^8.-. AXSWEK -Continued. verified complaint, failiu-e to yerifv answer to, § 440. waiver of objections not taken by, § 434. waiver of snmmons by, ;^ 40C). written instrument "where complaint sets forth, §§447-449. written instrument, settinu" out in. §§ 448, 449. A^PPEALS. See Review. .u-enerally, §§ 936-980. Parties, who may take and in what proceedings. aggrieved party may take, § 938. appellant, Avho may be. § 938. parties, how designated, § 938. suggestion, death or other disability on. § 385. executor, appeals by, § 9G5. guardian's appeal. § 9(35. appeal from award, § 1289. from what may be taken, § 939. from order granting or refusing new trial, § 939. from judgment on controversy without action, § 1140. from judgment for deliverv of documents, § 943. from judgment for executing conveyance, § 944. , from judgment, for sale or delivery of real property. § 945. from judgment, what may be reviewed, § 956. orders out of court without notice, how re- viewed, § 956. supreme court, appeals by executors, adminis- trators, and guardians. §§ 965, 966. supreme court, appeals to, generally, §963. supreme court, to, from cases from justices' court, §964. supreme court's power on. § 53. insolvency proceedings, appeal may be taken, from what orders in, p. 855. § 71. Stat. appeals from judgments or orders in courts before .Tan. 1. 1880, p. 787, Stat. settlement of trustee's account, right of ap- peal, § 1701. corporation, voluntary dissolution of, § 1233. controversy without action, from judgment on, §1140. 886 INDEX. APPEALS— Continued. Parties— arbitration, appeal from decision on mo- tion to set aside or modify award, § 1280. eminent domain, § 1257. Time of tailing. evidence, decision or verdict not supported by, § 939. in probate, matters to be talven within sixty days, § 1715. time for tailing, generally, § 939. Talking of— Notice and undertaking. mode of taking, § 940. insolvency proceedings, appeals in, how taken, p. 855, § 71, Stat. settlement of trustee's account, appeal from, how taken, § 1701. notice of, § 940. justification of sureties, proceedings thereon, § 948. mode of taking, § 940. undertaking on, §§ 940-949. undertaking on, administrator appellant, § 965. undertaking on, executor, appellant, §§ 946, 971. undertaking on, deposit in lieu of. §§ 940, 941, 949. undertaking on, documents, 'delivery of judg- ment for, § 943. undertaking on, execution of conveyance, judgment directing, § 944. undertaking on, generally, §§ 941, n., 949. undertaking on, justification of sureties, §948. undertaking on, money judgment. § 942. undertaking on real property, sale or posses- sion, judgment directing, § 945. undertaking on, several documents may be in, § 947. ^ undertaking on, sureties on, paying money judgment after appeal, § 1059, undertaking on, trustee appellant, § 946. sureties on, subrogation on paying money judgment after appeal, § 1059. bond on appeal from order directing alias writ of possession, § 1210. insolvencw proceedings, bond on appeal in. p. 855, § 71. INDEX. 887 APPEALS— Continued. Exceptions and records, record on appeal from judgment, § 950. record on appeal, from judgment, on appeal, §951. record on appeal, from order granting or re- fusing new trial, S 952. record on appeal, from order other than order granting or refusing new trial, § 951. transcript, clerk's certificate, etc., § 953. certificate of clerli, as to correctness of tran- script, etc., § 953. exceptions in court below, necessity for, §§ 64(3, 956. Effect of. appeal in, insolvency, stay of proceedings, p. 855, §71. attachment, effect on, § 946, stay of proceedings, when effected, §§ 942, 946. Dismissal, appeal, dismissal of, effect of, § 955. dismissal of, for not furnishing papers, § 954. dismissal, when and when not allowed, § 954. Hearing, review on, §§936-939. probate proceedings, appeals in to be given preference, § 57. orders, interlocutory, reviewable on appeal from judgment, § 956. judgment, review of, on, §§ 936-939. immaterial error to be disregarded, § 475. Judgments, costs, remittitur, power of supreme court on, § 53. affirmance on, § 53. settlement of trustee's account, conclusiveness of decree after affirmance on appeal, § 1701. judgment, reversal on, § 957. reversal not to be granted for error not chang- ing result, § 475. appointment of executor, reversal, effect, § 966. appointment of administrator or guardian, re- versal, § 966. guardianship, appointment reversed, effect, § 966. administrator, appointment reversed, effect, § 966. 8->7 INDEX, An 'KAL.S—roiJ tinned. Judgments— moditicatiou ol" .jud.unicnt, I'emevlj.i powers of court on, §§ 53, 057. reversal of judgment, remedial powers of, court on, § 957. judgment, modifying on, § 957. costs on, § 1027. costs on, how claimed, § 1034, when appellate court may order payment of costs, § 1720. remittitur, § 958. Appeals to superior court, superior court, from, generally. § 963. superior court, to, generally, § 974. superior court, how taken, § 974. superior court, on questions of law. statement, § 975. superior court, on questions of law and fact. no statement. § 976. superior court, statement on, §§ 975, 976. superior court, stay of proceedings. § 979, superior court, transmission of case, § 977. superior court, trial de novo, § 980. superior court, unnecessarv delav in bringini: cause to trial. § 980. superior court, undertaking on, § 978. superior court, undertaking, deposit in lieu of, § 926, APPEAT^AXCE, accusation against attorney, to, § 293. answer is, § 1014. r administrator's sale, § 1555. of land by executors and administrators, §§ 1597-1607. INDEX. 900 €OXVP:YA^XE— Continued. and sale of lands to pay decedent's debts, §§ 1536-1576. CONVICTION OF CRIME, attorney, effect on li- cense, §288. COPIES, amendments, copies to be served, § 432. record, copy requires seal, § 152. writing-, demanding copy of, § 1000. writing, evidence when original accounted for, etc.. § 18.55. writing, pleadings, effect of setting forth in, §§ 447-449. CORONER, § 262 n. CORPORATIONS, "person" includes, § 17. receiver, when appointed. §§ 564, .565. service of summons on, § 411. veritication of pleading by, § 446. acting as executor, guardian, trustee, receiver, or assignee and powers and duties, § 1348. acting as executor, trustee, etc., liability of officers, §1348. foreign, service of summons by publication in actions against. § 749. suretv. corporation to act as, deficiency of as- sets, § 1056. suretv, corporations right to become sole on bond, §§ 1056, 1057. surety, corporations formed to act as sole, ex- amininu- into bv insurance commissioners, §10.56." insolvent act, provisions of apply to. -p. 841, §40. insolvency, petition in, by, p. 841, § 40. insolvency of, proceedings on. p. 841, § 40. insolvent, discharge not grnnted to, p. 841, § 40. insolvencv, penalties for fraudulent convev- ances, etc., p. 841, § 40. dissolution, voluntary. §§ 1227-1233. dissolution, voluntary, appeal from order. § 1233. dissolution, voluntary, application for, §§ 1228, 1229. dissolution, voluntary, iudgment roll, on, § 1233 910 INDEX. CORPORATIONS— ContiniiecL dissolution, volimtary, order for, § 1230. dissolution, voluntary, order for notice of, § 1230. CORRECTION, pleadings, §§ 432, 472, 473. verdict, informal, § 619. CORROBORATIA'E EVIDENCE, defined, § 1839. COSTS, and interest must be included in judg- ment, § 1035. attorney's fees left to agreement, § 1021. deceased's estate, action by creditor, § 1503. may be imposed as a condition for continu- ance, § 1029. bill of, § 1033. verified memorandum of, to be filed, § 1033. filing after remittitur, § 1034. fees of attorney left to agreement, § 1021. fees of referees, rate allowed, § 1028. of referees in probate cases, § 1508. fees of short-liand reporter, § 271. fees of referees may be apportioned in parti- tion, § 768. how awarded against counties, § 1039. in actions for w^ages and salaries, a preferred claim, § 1206. in proceedings for condemnation of land, §§ 1251, 1255. in proceedings to contest elections, §§ 1124- 1125. in actions for usurpation of oflice, § 809. in actions by or against administrator, §§ 1031, 1503, 1508, 1510, 1616. of abstract of title in partition, § 799. of referees, § 1028. of referees in partition, § 768. of short-band reporter, § 271. of prior action for partition, § 798. of partition as a lien, § 796. of appeal, Avlien discretionary, § 1027. on nonsuit, § 581 . on .iudgment by default, § 585. on ap])eal, how claimed and recovered, § 1034. on frivolous appeal, damages may be added, §957. on disclaimer in actions to quiet title, § 739. INDEX. 911 COSTS— Continued. on application for sale by guardian, § 1786. on several actions brought on a single cause, § 1023. on review other than by appeal, § 1032. security for, when may be required, § 1036. security, if not given, action will be dismissed, § 1037. when allowed, of course, to plaintiff, § 1022. when allowed, of course, to defendant, § 1024. when apportioned, discretion of court, § 1025. when to be severed, § 1026. when allowed, discretion, § 1027. when tender was made before suit, § 1030. in probate proceedings, by whom paid, § 1720. on mandate, § 1095. on suit for claim against estate, § 1503. on application for share of estate, § 1661. on action against executor, § 1509. claimant failing to recover, must pay costs, § 1510. allowance to executors, etc., § 1616. on trial by referees in probate proceedings, § 1508. on application for sale of ward's estate, § 1786. on contesting validity or probate of will, § 1332. on revocation of probate of will, § 1332. in justices' courts, when allowed, §§ 896, 924. against county, how paid, § 1039. against state, how paid, § 1038. after tender, § 1030. summons, fees where served by person other than sheriff, p. 790, Stat, subpoena, fees where served by person other sheriff, p. 790, Stat, insolvency proceedings, costs of. See Insol- vencv. COTENANTS. See Parties; Partition. COUNSELORS AT LAW. See Attorneys. generally, §§ 275-299. ' COUNTERCLAIM, cross-complaint, § 442. I deemed denied, allegations in are, § 462. demurrer to, §§443, 444. 912 INDEX. COUNTERCLAIM— Oontiuiiecl. generally, §§438-441. judgments for excess, § 666. omission to set up, fatal, § 439. omission to set up, fatal in justices' courts, § 856. separately stated, eacli must be, § 441. several may be set up. § 441. specially pleaded, must be, § 438. verdict on, § 626. not barred by death or assignment, § 489. may be set up by defendant on answer, § 437. action by assignee in insolvency, counterclaim in. p. 833, § 25, sub. 1. COUNTY, complaint, must specify where filed, §426. costs against, § 1039. officers exempt from jury duty, § 200. security for costs, not required from, § 1038. service of summons on, § 411. summons must state, where complaint filed. § 407. place of trial of actions against, § 394. verification by, § 446. need not give security in actions, § 1058. venue where' county a party, §392. new, act relating to execution of final process on creation of, p. 864. COUNTY CLERK. See Clerlv. COURSE OE PROCEEDINGS, practice where none specifically pointed out, § 187. COURT CO:\OIISSIONER, appointment of, § 258. findings, etc., of, §§ 259. 643, 644. findings, etc., of. exceptions to time for, § 259. findings, etc., of, review of, § 645. partner, not to be, of practicing attorney, § 173. powers of, § 259. reference to, § 640. report of, §§ 259. 643, 644. report of, review of, §§ 259, 645. oath and undertnking of on sale under fore- closure. § 729. foreclosure, manner of sale by commissioner under, § 726. appointment of elisor to execute deed, where court commissioner died, § 726. INDEX. 9iS (•( )UIiT COMMISSIONER- Coiitiiuied. report of sale. § 729. fees of on sale under foreclosure, § 729. COURTS. See Adjournment: Judges. absence of judges, §§ i;J9, 140. breach of promise, sittings private, § 125. challenges for cause, to try. $ 603. chambers, powers at, §§ 1G.'5-167, 17G. classification of, § 33. cleric's duties, § 262. court commissioners, §§ 2.")8. 2.59. construe documents, must. § 2102. contempt, §§ 721, 1209-1222. crim. con., sittings private. § 12.5. deposits in, §§572-574, 2104. Superior. See Superior Courts; Superior Judges. adjournment of, § 74. always open, § 73. chambers, power at, §§ 166. 176. to be held in each county, § 65. in different counties, number of, §§ 65-67. judge by agreement of parties, § 72. judge holding court in another count v, §S 71, 160. judges, election of, etc., §§ 65, 157. judge may hold in another county, §§ 71. 160. judges qualifications. § 157. judges residence, § 158. jurisdiction, §§ 75, 76. jurisdiction, appellate, §§ 75, 77. jurisdiction-, original, § 76. l^rocess of, extends through the state, § 78. pro tempore judges of, § 72. residence of judge of, § 158. rules of, when take effect, ^ 130. open always, § 73. sessions of, § 73. terms of office, §§ 68, 69. divorce, sittings private, § 125. enumeration of, § 33. held, changing place where, §§ 142, 143. held, days on which may be or may not be, §§ 133, 134. Code Civ. Proc— 77. 914 INDEX. COURTS- Continued. Superior— holiday, court appointed for, stands ad- journed, § 135. impeachments, for trial of, §§36-39. judge, absent, adjourrned, §§ 139, 140. judge, substitute, § 160. jury, to charge, §§607, 609. act transferring business and records from old ! courts to, p. 866, § 2. continuation of trials, p. 866, § 2, Stat. act providing for secretary of in certain coun- ties, p. 800. act providing additional judge for Alameda county, p. 801. acts increasing and reducing superior courts of Fresno, pp.801, 802. act providing additional judge for Humboldt county, p. 804. act increasing number of judges in Los An- geles county, pp. 804, et seq. act providing additional judge in Mono county, p. 806. act providing for additional judge in Sacra- mento county, p. 807. act providing for additional judge in San Ber- nardino county, p. 807. acts increasing and lowering number of judg- es in San Diego, pp. 808, 809. acts increasing and lowering number of judg- es in San Luis Obispo, pp. 809, et seq. acts increasing and reducing number of judg- es in Tulare county, p. 813. act providing separate judges for Sutter and Yuba, p. 811. act increasing number of judges in Santa Clara, p. 81i. police, act transferring business and records to, after new constitution, p. 867, § 3. acts relating to. See Appendix to Political Code, title Police Courts. City, act abolishing and transferring business, p. 867, § 3. Justices', §§85-115, 832-925. jurisdiction, civil, §§ 112-114. jurisdiction concurrent with superior courts'J §113. INDEX. 915 COURTS— Continued. Justices— jurisdiction, criminal, § 115. laTT. questions of, to be decided by. §§ 591, 2102. municipal criminal court, §§ 104-110. of record, § 34. order, preserving-, § 128. police court, § 121. powers of, §§ 128-130. powers of supreme court on appeal, § 53. powers of judicial officers, §§ 176-179. Probate, §§ 1294-1809. appeals, §§ 1714, 1715. attorney for minors, absentees, devisees, leg- atees,' creditors, etc., appointing, § 1718. chambers, power at, ^ 107, 1305, 1808. citation, §§ 1707-1711. contempt by executor, etc., or guardian § 1721. decrees of, § 1704. homestead, recording decree, § 1719. issues, § 1716. new trinls, § 1714. orders of, § 1704. practice, rules of, § 1713. recorded decrees of. are notice, § 1706. seal, §§ 147-149. terms, §88. trials, § 1717. publicity of proceedings, §§ 124, 125. record of, § 34. records and paper, transfer to new courts, §§ 55, 79. rooms for, § 144. rules, §§ 129, 1.30. seals, §§ 147-153. seduction, sittings private, § 125. sittings not public in divorce, crim. con., se- duction, and breach of promise, § 125. superseded courts, § 79. Supreme. See Justices of the Supreme Court; Supreme Courts, adjournments, § 48. bailiff, §§265, 266. > business of, §§ 43, 45, 47. 916 INDEX. cor RTS— Continued. Supreme— certioiai'i and other write, §S 51. 54. chambers, powers in, §§ 165, 176. chief justice, absence or disability, § 46. concurrence in decision, §§ 45. 54. concurrence in issuing writ, § 54. constitution of, § 40. courtrooms, furnisliing, etc., § 47. decisions, opinions must be in writing. §§ 49. 53. departments. § 43. habeas corpus. §§ 51, 54. held where. § 47. in banl^, §§43-45. judge, power of single. § 43. , judges, election, etc., § 40. judgment, §§ 43-45. jurisdiction. § 50. jurisdiction, appellate, §§ 50, 52, 53 jurisdiction, criminal, § 52. jurisdiction, original. §§ 50. 51. jurisdiction, where no mode of exercising ju- risdiction provided. §§ 51. 187. mandamus and otlier writs, §§ 51. 54. modifying judgment, § 53. open ah^nys. S 47. opinions must be in writing. §§ 49. 53. quorum, § 43. reasons for decisions. § 49. records, transfer of from old to new court, § 55. remittitur, §§ 44, 53, 56. 958. reversal by, § 53. rules, when take effect. § 130. seal. § 147. sessions. §§ 47. 48. terms. §§ 40. 41. transfer of papers to new" court. § 55. traveling expenses. § 47. vacancy in, § 42. writs out of, §§ 51, 54. act transferring business and records froi 790. et seq. supreme court commission, acts creating, pj old court to new, p. 865, et seq. INDi^X. 917 COURTS OF RECORD, what are, § 34. CREDIBILITY OF WITNESS, collateral facts may be inquired into, § 1868. See AA^itness. CREDITORS. See Debtors. when entitled to administer, § 1365. cannot sue special administrator, § 1415. to present claims against estate, time when, § 1493. proceedings of, on presentation of claim, §§ 1494-1504. may apply for order of sale of estate, § 1545. may require suits brought to recover property of estate, § 1590. may except to administrator's account, § 1645. may assent to deduction on contingent claim, § 1048. may have execution issued upon judgment, § 1649. claim not included in order, how disposed of, § 1650. CRIM. CON., private sittings in, § 125. CRIMINAL ACTION, defined, § 24. holidavs, court may exercise powers of magis- trate on, § 134. Penal Code provides for, § 31. CROSS-COMPLAINT, generally, § 442. CROSS-DEMANDS, compensate one another, § 440. failure to set up, fatal, §§ 434, 439. generallv, §§438, 442. CROSS-EXAMINATION. See Evidence, §2048. CUMULATIVE EVIDENCE, definition of, § 1838. Currency, recovering specific, §667. CUSTODY of abstract of title in partition, § 799. of will, duty of custodian, § 1298. custodian of will, when subject to arrest, § 1302. custodian of public writings, bound to give copies, § 1893. See Sheriff. CUSTOMS, mining, effect of, § 748. usage of trade, etc., § 1870. DAMAGES must be claimed in complaint, § 426. when to be assessed by jury, § 585. 918 INDEX. DAM AG ES- Continued. excessive, ground for new trial, § 657. allowed for waste, § 732. double, in proceedings to recover embezzled es- tate, § 14G0. treble, in actions for waste, § 732. trebled, in actions for unlawful entry, §§ 735. 1174. treble, in trespass, § 733. improvements, when set off, to claim for, § 741. purchaser under execution may sue for, § 746. or for injury to property after sale, § 74G. .ioinder of claims for, § 427. in proceedings for mandate, § 1095. in proceedings for usurpation of office, § 807. in nuisance, § 731. for neglect to return inventory in probate, § 1450. double, in case of fraud, § 1572. in case of misconduct. § 1571. for misconduct in probate sale, §§ 1571, 1572. on appeal tal^en for dela3% § 957. on judgment by default, § 585. on disobedience to subpoena, § 1992. DAYS, judicial and nonjudicial, §§ 133-135. DEATH, abatement, §385. attorney, of, pi'oceedings on, § 286. child, parents may maintain action for, § 376. claims on estate of deceased, §§ 1493, et seq. execution after, § o86. limitation, effect on, §§ 327, 353. negligence causing, parents or representatives may sue for, §§ 37G, 377. partition not affected by, § 766. possession, right of, not affected by, § 327. presumed, from person not being heard of for seven years, § 1963. set-off, not affected by, § 440. verdict, death after, § 669. appointment of elisor to execute deed on death of court commissioner, § 726. death of insolvent debtor after adjudication of insolvency, effect of, p. 852, § 61. wages in case of, a preferred claim, § 1205. INDEX. 919 DEATH— Continued. to be reported to public administrator, § 1728. effect of, on rig-lit to possession of land, § 328. DEBTOR. See Creditors. required to answer as to his property, § 714. proceedings to compel appearance, § 715. when may be arested, § 715. wliat bail may be given, § 715. death of insolvent debtor after adjudication of insolvency, effect of, p. 852, § 61. judgment, proceedings supplementary to exe- cution, §§ 714-721. debts of decedents, estate to be listed, §§ 1445, 1447, 1448. debts to be collected by executor, § 1581. debts, when may be compounded and compro- mised, § 1588. debts, when executor not accountable for, § 1615. debts, statement of, when to be filed, § 1512. debts, payment of debts of decedent, §§ 1643- 1653. debts, how attached, § 542. debts, how seized on execution, § 688. debts may be collected by sheriff on attach- ment, § 547. debtor of debtor may pay claim of creditor, § 716. . debtor of debtor, examination of, how con- ducted, § 717. debtor of debtor, trial, how conducted, § 718. debtor of debtor, property, how applied, § 719. debtor of debtor, proceedings on denial of in- debtedness, § 720. debtor of debtor, attachment of, §§ 542, 547, 688. debtor of debtor, payment of, from estates, §§ 1G4:M653. debtor of debtor, levy on execution under, §§ 548, 688. debtor of debtor, payment to sheriff, §§ 547, 716. debtor of debtor, disobedience of order, how punished, § 721. Q20 INDEX. DECISION of court, must be in writing-. § G32. must be filed ^Yitlliu thirty days, § 632. demurrer on, notice of. § 476. of motion for a new trial, § 660. facts and conclusions must be separately stat ed, §633. exceptions to, when may be talven, § 646. when deemed excepted to, § 647. when subject to review on appeal, § 956. on motion to modify award is final, § 1289. DECLARATION of parties, how far binding, §§ 1848-1854. of parties, when may be proved, § 1870. of deceased as to pedi2:ree. effect of, § 1852. "oath" includes, § 2097. dying declarations. § 1870, subd. 4. See Evidence. DECLARATION OF INTENTION, attorney, alien. § 275. DEEDS. See Conveyances. DEFAUIjT on failure to answer amended com- plaint, §432. when .iudgment to be rendered on, § 585. relief from .iudgment on, § 473. mandate, not granted by, § 1088. relief to be awarded to plaintiff on, § 580. in justices' courts, § 871. DEFECT of parties, ground for demurrer, § 430. of account, further account may be ordered, § 454. in pleadings, when disregarded, § 475. DEFENDANT, definition of, § 308. summons must be directed to, § 407. absent, appointment of attorney for, § 412. publication of summons against, § 412. time for appearance, § 845. judgment by default in justices' court, § 871. joinder of several, § 380. landlord, when made, § 397. parties who to be, §§ 370, 384. DEFENSES, seA'eral may be set forth in answer, §441. must be separately stated in answer, § 441. when plaintiff may demur to, § 443. when founded on written instrument, § 448. f INDEX. 921 DEFENSPJS— Continued. in notions for libel and sLander, § 461. assi.unment not to preindice, § 368. generally, §§ 487-442. or. costs on proceedings for condemnation of land in, §1255. granting stay, under writ of review in, § 107i\ ordering issues in mandate to be tried by jurv in, § 1090. evidence on collateral questions, admitted in, § 18G8. view by jury of premises, allowed in. § 1954. order of trial. § 607. order of proof in. § 2042. form of administering oath, in, § 2095. expensos ol" roforoes in partition, §§ 768, 70(;. IXDEX. 925 niSCliETlUN OF roi: LIT— Continued. to order reference in accusation against attor- ney, § 298. lUSMISSAL, of action, for failure to furnish se- curity for costs. § 1037. when either party may take a, § 594. wlien action may be dismissed, § 581. of appeal, for failure to furnish papers, §954. of appeal, effect of, § 955. failure to issue and serve summons, dismissal for. § 581. DISOBEDIENCE. See Contempts. DISQUALIFICATIONS, of judge, § 170. of judge, ground for removal of cause, § 397. executor may qualify on removal of, § 1354. of judge in probate, proceedings, § 1430. of jurors, enumerated. § G02. of referee, enumerated, § 641. DISSOLVING CORPORATIONS. See Corpora- tions. DISTRIBUTION. See Estates of Deceased Per- sons. DIVORCE, jurisdiction of proceedings for, § 70. ])leadings and testimonv to be kept private, § 125. I)rivate sittings, § 125. DOCKET, of judgment, to be kept by clerk. § 071. what constitutes, § 672. entries in, how made, § 072. to be open for ]mblic inspection, § 673. transcript of, may be tiled in other counties, § 074. satisfaction of iudgment. to be entered in, § 075. in justices' courts in cities and counties, § 93. of justice of peace, pleadings to be entered in, § 851. of justice. Avhat to contain, 5 911. of justice, as primary evidence, § 912. index to be kept by justice, § 913. of justice, to be delivered to successor, § 914. proceedings, on ofiice becoming vacant, § 915. (Execution may issue on. § OK}. transcript of docl^et of foi-eign justice, as evi- dence, § 1921. Code Civ. Proc— 78. I 926 INDEX. DOCKET-Coutmued. transcript, how autiienticated, § 1922. copy of to be produced by redemptioner, § 705. DYING DECLAKATiUN, § 1870, subd. 4. EJECTMENT, alienation during suit, § 740. costs, § 1022. improvements, set-olf for, § 741. joinder of causes of action with, § 427. survey, etc., of property, §§ 742, 743. title, plaintiff's, terminating during suit, § 740. verdict in, § 625. ELECTION. See Contesting Elections. contesting, §§ 1111-1127. justices of the peace, § 110. superior court judges, § 65. supreme court judges, § 40. power to declare person having highest vote elected, though not the one returned, § 1123. ELISOR, fee for summoning jurors, § 228. appointment of, to execute deed on death of court commissioner, § 726. EMBEZZLEMENT, administrator, etc., by, § 1626. arrest, ground for, § 479. estate of decedent, §§ 1458-1461, 1626. ward's property, § 1800. EMINENT DOMAIN, all former laws abolished, § 1258. Code, when to take effect, § 1258. definition of, § 1237. purposes of its exercise, § 1238. estates which may be acquired under, § 1239. private property defined, classes enumerated, § 1240. facts to be found before condemnation, § 1241. parties may locate, may enter thereon, § 1242. jurisdiction in superior court, § 1243. complaint, contents of, § 1244. summons, what to contain— issuance and ser- vice, § 1245. answer, what to show, and how verified, § ^ 1246. counter-claim, §§438, 442. jurisdiction to regulate crossings and common use, § 1247. 1 INDEX. P27 EMINENT DOMAIN— Contiimed. bearing, § 1248. court or .iuiT to assess damagres, § 1248. compensation and measure thereof. § 1249. new proceedin.2;s to cure defective title, § 1250. payment of damages, § 1251. payment, to whom made. § 1252. final order of condemnation, what to contain, § 1253. order when filed, title vests, § 1253. putting- plaintiff in possession, § 1254. costs apportioned in descretion of courts, § 1255. rules of practice in proceeding under, § 1256. new trials and appeals. § 1257. construction of Code as to, § 1258, ENGLISH LANGUAGE, proceedings to be in, § 185. ENTIvY, real estate, on, when deemed valid, § 322. entries, by decedent, § 1946. in course of business, § 1947. ENTRY OF JUDGMENT OR ORDER, superior court always open for, § 73. supreme court always open, § 47. ERRORS, disregarded, to be, § 475. law, of, new trial for, § 657. ESCHEATED ESTATES, appearance, §1271. claimants, § 1272. genera llv, §§ 12(59-1272. pleadings, § 1271. proceedings relative to, § 1269. receiver, § 1270. trial, § 1271. ESTATE FOR LIFE, decreeing ended on tenant's death, § 1723. setting off in partition, § 770. ESTATES OF DECEASED PERSONS. See Executors and Administrntors— Probate Pro- ceedings. Inventory, appraisement and possession of. inventory to be returned, including home- stead, § 1443. appraiser, who may not be appointed, § 1444. appraisers. Jsee Appraisers. 928 INDEX. EjstaTES of deceased TEliSOXS— Contin- ued. appraisement and pay of appraisers, § 1444. appraisers, by TS'hom appointed, § 1444. oatli of appraisers. § 1445. inventory, how made. § 1445. inventory to account for money, § 1446. if all money, no appraisement necessary, §' 1446. claim a. gainst executor to be included in in- ventory, § 1447. discbar^-e of debt or bequest in will to be in- cluded. § 1448. appraisers to make oath to inventory, § 1449. revocation of letters for neglect to return in- ventory, § 1450. inventory of after-discovered property, § 1451. administrator and exectitor to possess estate, § 1452. to deliver estate to heirs and devisees, when, § 1453. acts authorizing husband, wife, or next of kin to collect bank deposit, pp. 814 et seq. Embezzlement and surrender of property of. embezzlement before grant of letters testa- mentary, § 14.58. citation to issue to person suspected, § 1459. penalty for refusal to obey citation, § 1460. disclosures may be compelled bv imprison- ment, § 1460. liability for double damages, § 1460. persons intrusted with estate may be cited to account, § 1461. Of provision for support of family. widow and minor children may remain in de- cedent's house, § 1464. property exempt from execution set apart for family use, § 1465. court or judge may make extra allowance, § 1466. payment of alloAvance preferred to other § 1469. estates, when to be summarilv administered, charges, S>, 1467. property set apart, how apportioned. § 1468. estates, when to go to wife and child, S 1469. r liNDEX. 929 ESTATES OF DECEASED PEKSOXS- Coat wlion all property to go to children, § 1470. Of the homestead, rights of survivor to homestead, § 1474. selected and recorded homestead to be set off, § 1475. subsisting liens to be paid by solvent estate, S 1475. appraisers, when to carve out of original, § 1476. report of appraisers thereon, § 1477. majority and minority reports, which con- firmed, § 1477. dav to be set for confirmation or rejection, § 1478. if report rejected, other appraisers to be ap- pointed, § 1479. if again rejected, partition suit to be brought, § 1479. instead of dividing homestead, what steps may be taken, § 1480. homestead, when may be petitioned for. § 1481. court to direct partition suit, when, § 1482. court may cause appraisement of common or separate property, § 1483. new appraisement, when ordered, § 1484. public sale of property, when may be ordered, § 1484. costs of proceedings, to whom chargeable, § 1485. successors to rights of homestead owners, powers and rights of, § 1485. certified copies of final order to be recorded, § 1486. Of claims against the estate, notice to be given to creditors, § 1490. notice, how given, § 1490. removal of executor for neglect to give notice, § 1511. time expressed in notice, § 1491. copy of notice and aflidavit to be filed, § 1492. time witliin wliich to present claims. § 1493. claims to be sworn to, interest, § 1494. claim may be presented by superior judge, § 1495. 930 INDEX. ESTATES OF DECEASED PERSONS— Cont allowance to be indorsed on claim, § 1496. rejection, what deemed, § 1496. approved claims or copies to be filed, § 1497. duty of clerli, § 1497. claims secured by liens, how described, § 1497. rejected claims, when to be sued for, § 1498. claims barred by statute not to be allowed, § 1499. examination of claimant on oath, § 1499. claims must be presented before suit, § 1500. exceptions as to liens, § 1500. limitation of time, how affected by vacancy of administration. § 1501. claims in actions pending before decease, § 1502. allowance of claim in part, § 1503. judgment against executor, effect of, § 1504. execution not to issue after death, when, § 1505. property levied on may be sold, proceeds, how applied, § 1505. judgment, when not a lien, § 1506. doubtful claims may be referred, § 1507. allowance or rejection bv referee, effect of, § 1507. trial by referee, how confirmed, effect of, § 1508. costs on contest of, liability for, § 1509. claim of executor, to M^hom presented, § 1510. suit by executor for claim rejected, how com- menced, § 1510. executor to return statement of, § 1512. statement, v/hat to contain, § 1512. claims paid without affidavit and allowance, when allowed, p. 815, Stat. Sales and conveyance of property of decedents, personal estate first chargeable for debts, § 1516. real estate, when to be sold, § 1516. no sales valid, except by order of court, § 1517. rtetitions for orders of sale, showing required, ■ § 1518. but one petition, order and sale to be had, § 1519. INDEX. 931 ESTATES OF DECEASED PERSONS— Coat perishable aud depreciating property to be sold, § 1522. order to sell personal property. § 1523. partnership interests and choses in action, how sold, § 1524. order of sale, what to direct, § 1525. what to be first sold, § 1525. sale of personal property to be made at auc- tion, § 1526. mines may be sold, how, § 1529. petition for, who may file and what to con- tain, § 1530. order to show cause, how made, notice, § 1531. order of sale of mines, how and when made, § 1532. provisions of Code applicable to sale of mines, § 1533. real estate may be sold, when, § 1536. verified petition for sale, what to contain, § 1537. to what petition may refer, § 1537. order to interested persons to appear. § 1538. order to show cause, must be previously serv- ed, § 1539. notice, when to be served, § 1539. notice to be dispensed with, when, § 1539. hearing of petition after proof of service, § 1540.^ presentation of claims at hearing, § 1.540. who may be examined at hearing, § 1.541. . court may authorize sale of all or part of, § I 1.542. * order of sale, when to be made, § 1543. order, what to contain, § 1.544. sale may be public or private, § 1544. any person interested may apply for order, § 1.545. form of petition by party interested, § 1545. executor to be served with copy of order, § 1546. notice of sale to be posted and published, § 1.547. time and place of sale, § 1.548. private sale, how made: notice, how given. § 1549. 932 INDEX. ESTATES OF DECEASED rEKSOXS— Coiil bids, where and hoAv recorded, § 1549. ninety per cent of appraised value must be offered, § 1550. purchase money on credit sale, how secured, § 1551. return of proceedings on sale to be made, § 1552. hearing- upon return, proceedings thereon, § 1552. when a resale may be ordered, § 1552. objections to confirmation, Avho may file, § 1553. order of confirmation, when and when not to be made, § 1554. conveyance, when to be executed, § 1555. order of confirmation, what to state, § 1556. sale, when may be postponed, § 1557. notice of postponement to be given, § 1558. sale of real estate to pay legacy, § 1559. where payment of debts is provided for bv will, § 1560. sale witnout order, when may be made, § 1561. where provision by will is insufficient, § 1562. estate subject to debts, proportionate liabil- ity, § 1563. contribution among legatees, when to be had, § 1564. interest in contract for purchase of lands may be sold, § 1565. conditions of sale of interest in contract, § 1566. purchaser to give bond, § 1567. assignment of contract on confirmation of sale, § 1568. sales of lands imder mortgage liens, § 1569. holder of mortgage or lien may purchase, S 1570. his receipt for claim a valid payment, § 1570. administrator or executor liable for miscon- duct in sale, § 1571. liabilitv in double the value for fraudulent sale, § 1572. limitation of actions for vacating sale. § 1573. minority and other disability to avoid limita- tion, § 1574. INDEX. 933 ESTATES OF DECEASED PERSONS— Cout account of sale to be returned, § 1575. executor, etc., not to be purchaser, § 1576. Of conveyance of real estate in certain cases, executors to complete contracts for sale of real estate, § 1597. petition for conveyance and notice of hearing", § 1598. interested parties may contest, § 1599. conveyances, when ordered to be made, § 1600. execution of conveyance and record, how en- forced, § 1601. ri.ahts of petitioner to enforce contract, § 1602. effect of convevance. § 1603. ^ / effect of recording copy of decree, § 1604. ^"i^Vh recording decree not to supersede power of / / court, § 1605. /^/^ I successors to partv having right to convev- f ance, § 1606. Avhen decree to direct possession given, § 1607. Payment of debts of. order in which to be paid, § 1643. where property insufficient to pay mortgage, $ 1644. dividend, when to be paid, § 1645. expenses of funeral, and of last sickness, and family allowance, § 1646. order for payment of debts and discharge of executor, §' 1647. provision for disputed and contin^-ent claims, § 1648. after decree, executor personally liable, § 1649. claims not included in order, how disposed of, § 1650. order for payment of legacies and extension of time, § 1651. final account, when to be made, § 1652. neglect to render final account, how treated, § 1653. I*nrtial distribution prior to final settlement of. payment of legacies upon giving bonds, § 165S. notice of application for legacies, § 1659. 934 INDEX. ESTATES OF DECEASED PERSONS-Cout who may resist application, § 1660. decree to require bond, which must be given, § 1661. decree may order whole or part of share de- livered, § 1661. partition, where necessary, ]iow made, § 1661. costs to be paid by applicant, § 1661. order of payment of bond, and suit thereon, § 1662. Distribution on final settlement. distribution, how made and to whom, § 1665. what the decree must contain, § 1666. decree of distribution final, § 1666. distribution when decedent was foreign resi- dent, § 1667. decree to be paid only after notice, § 1668. taxes to be paid before distribution, § 1660. distribution, petition for, after one year, 5 1633. distribution, notice of petition for, § 1633. distribution, further notice where notice in- sufficient, § 1668. distribution, talking proceedings to ascertain share of distributee, § 1633. distribution of share of infant or incompetent without guardian to treasurer, § 17031^. distribution, absentees, deposit of money with county treasurer, § 1691. distribution, absentees, appointing agent to tal^e possession for, § 1691. distribution, taking bond from distributee on, § 1633. distribution, jurisdiction retained after to settle accounts of trustees, § 1699. Distribution and partition. partition to be made of estate in common, § 1675. commissioners for partition, § 1675. petition for partition, notice thereof to be given, § 1676. estate in different counties, how divided, § 1677. partition after some heirs have parted with their interest, § 1678. INDEX. 935 ESTATES OF DECEASED PERSONS— Cont shares to be set out by metes and bounds, § 1679. whole estate may be assigned to one, when, § 1680. equality of partition: payment for, by whom made, § 1681. estate may be sold and proceeds distributed, § 1682. notice before partition, to whom given, § 1683. commissioners, duties of, § 1683. commissioners, to report and partition to be recorded, § 1684. commissioners, when not necessary to ap- point, § 1685. advancements made to heirs, how heard and determined, § 1686. Continuation of administration, petition, notice, and hearing, § 1670. closing of estate pending, § 1670. beyond time mentioned in will, § 1670. Agents for absent interested parties, court may appoint agent for aosentee, § 1691. agent to give bond, compensation of, § 1692. unclaimed estate, how disposed of, § 1693. real and personal property of absentee, when to be sold, § 1694. liability of agent on his bond, § 1695. certificate to claimant of money in treasury, § 1696. final settlement, decree, and discharge, § 1697. discovery of property after final settlement, § 1698. proceedings to apply to proceedings as to guardian and ward, § 1808. See Executors and Administrators; Public Administrator. ESTOPPET., generally, §§ 1908, 1962. landlord and tenant, § 1962. "standing by," § 1962. sureties bound by, § 1912. matters adjudged. §§ 1908. 1911. EVIDENCE. See Examination of Witnesses; '\\'ritings. Definitions of. judicial evidence, § 1823. t.3r, INDEX. EA'iI )EN'CE- Continued. proof, § 1824. law of evidence, § 1825. degree of certainty required, § 1826. primary evidence. § 1829. secondary evidence, § 1830. direct evidence, § 1881. indirect evidence, § 1832. indirect evidence classified, § 1957. prima facie evidence, § 1833. liartial evidence, § 1834. satisfactory evidence, § 1835.^ indispensable evidence, § 1836. conclusive evidence, § 1837. conclusive evidence, how restricted, § 19 < 8. cumulative evidence, § 1838^ corroborative evidence, § 1839. inference defined, § 1958. presumption defined, § 1959. Degree of proof. Avhat required to establish fact, § 1826. kinds of evidence, § 1827. degrees of eA'idence, § 1828. one witness, when sufficient to prove a fact, § 1844. CJeneral principles. direct evidence, what sufficient to prove a fact. § 1844. testimony confined to personal knowledge. § 1845. testimonv to be in presence of persons affect- ed. § 1846. witness presumed to speak the truth, § 1847. ])resumption. how repelled. §§ 1847, 2051, 2052. one person not affected by acts of another, § 1848. evidence relating to third person— primary when, § 1851. declarations of predecessors in title, as, § 1849. declarations which are part of transaction, § 1850. (leclaration of decedent, evidence of pedi- gree. § 1852. declarations of decedent, evidence against successor. § 1853. INDEX. 937 E^'r^)EXCE— Coutiiuied. declaraiious. See post. Kind and Degrees ol: Evidence, part of transactiou proved, the whole admis- sible, § 1854. contents of writing, how proved, § 1855. agreement in writing, deemed the whole, § 185(). construction in writing, relates to place, § 1857. construction of statutes and instruments, rule of, § 1858. intention of legislature or parties to be pur- sued, § 1859. circumstances to be considered, § 1860. terms to be construed by general acceptation, § 1861. written, to control printed words, in blanlc form, §1862. persons skilled to decipher characters, § 1863. of two constructions, which to be preferred, § 1864. written instrument construed as understood by parties, § 1865, parol to affect writing, § 1856. construction to be in favor of natural right, § 1866. material allegations only, need be proved, § 1867. evidence to be relevant to questions in dis- pute, § 3868. evidence on collateral (luestions in discretion of court. § 1868. affirmative alleuations only to be proved. § 1869. facts which may be proved on trial, § 1870. suppressed presumed adverse, § 1963. judicial notice, of what facts court will take, § 1875. persons who cannot testify, § 1880. Kinds and degrees of evidence, kinds of, § 1827. degrees of, § 1828. conclusive, §§ 1837, 1978. Code Civ.- Proc— 79. 938 INDEX. EVIDENCE— CoutinuecL knowledge of court, facts within, §§ 1875, 2102. of witnesses. See Witnesses, aclinowledge writings as evidence, § 1951. entry in court minutes, §§ 1376, 1429. of material objects presented to the senses, § 1954. when an inference arises, § 19G0. presumption, when may be controverted, § 1961. specification of conclusive presumptions, § 1962. specification of controvertible presumptions, § 1963. presumptions. See Presumptions, what evidence indispensable, § 1967. perjury and treason, evidence required to prove, § 1968. admission, § 1845. admission, adultery, of, not sufficient alone in divorce, § 2079. admission, entries in books, § 1946. admission, offer to compromise is not, § 2078. admission, predecessors in title, § 1849. admission, relation between parties, §§ 1848- 1863. admission, res gestae part of, § 1850. admission, silence, § 1845. admission, trial may be proved on, § 1870. admission, writing, execution of, § 1942. adultery, confession alone insuflicient in di- vorce, § 2009. act, part of, in, all may be put in. § 1854. declarations, interest, against, § 1853. declarations, pedigree, § 1852. declarations, predecessors in title. § 1849. declarations, proof on trial, § 1870. declarations, res gestae, part of, § 1850. declarations. See ante. General Principles, confession, adultery, effect of in divorce. § 2079. confessions by accused, § 1870. prima facie, § 1833. prima facie, boards, entries by, §§ 1920, 1926. INDEX. . 939 EVIDENCE— Continued. prima facie, charts, § ]936. prima facie, decedent's entries, when, § 194tr. prima facie, historical boolis, § 103G. prima facie, justice's docliet, § 912. prima facie, maps, § 1936. prima facie, officers, entries by, §§ 1920, 1926. prima facie, orders not final, are, § 1909. prima facie, phono.srraphic reporter's notes, transcript of, § 270. prima facie, presumption, what is, § 1959. prima facie, third person, oblig'ation of, evi- dence against him is evidence against par- ty, § 1851. primary, § 1829. secondary, what is, § 1830. privileged communications, § 1881. writings. See Writings. Statute of Frauds. will, to be in writing, § 1969. revocation of will, what required to prove, § 1970. transfer of real propertj', evidence required, §§ 1971, 1972. agreement not in writing, when invalid, § 1973. representation as to credit of third party, § 1974. Production of evidence. by whom to be produced, § 1981. writing altered, who to explain, § 1982. warrants to commit witnesses, § 1994. when witness prisoner, § 1995. manner of production— testimony, how taken, § 2002. testimony of witness in State. § 2021. testimony of witness out of State, § 2024. how to procure testimony on commission, § 2036. discharge of witness, § 2070. means of production. See Subpoena; Wit- nesses. See Affidavit; Depositions: Examination of Witnesses. Effect of evidence. jury to judge of, § 2061. 940 INDEX. EVIDENCE— Continued. conclusive evidence, jury not to judge effect of, § 2061. to be instructed by court as to, § 2061. Miscellaneous provisions as to evidence, accounts, when not admissible, § 454. an offer equivalent to payment, § 2074. whoever pays is entitled to a receipt. § 2075. objections to tender, at what time to be tak- en. § 2076. rules for construing description of land, § 2077. offer of compromise not an admission of debt, § 2078. confession of adultery, effect of in divorce, § 2079. proceedings to perpetuate testimony. See Testimony, administration of oatlis and affirmations. See Oath, questions of fact to be decided by jury, § 2101. what questions to be decided by court, § 2102. questions of fact to be decided by court or referee, § 2108. EXAMINATION of debtor of judgment debtor, proceedings in, § 717. trial of, how conducted. § 718. EXAMINATION OF WITNESS, oral examina- tion defined, § 2005. order of proof, how regulated, § 2042. when witness may be excluded, § 2043. court mav control mode of interrogation, § 2044. direct and cross-examination defined, § 2445. leading question defined, § 2046. witness mav refresh memory by notes, when, § 2047. cross-examination, as to Avhat, § 2048. partv producing not allowed to lead witness, § 2049. witnesses, wlien and hoM' examined, § 20.50. how impeached, general reputation, § 2051. impeachment of witness, inconsistent state- ments, § 2052. evidence of good character, when allowed, § 2053. INDEX. 941 EXAMINATION OF AVITNESS— Coutinued. writing: shown to witness subject to inspec- tion, § 2054. See Witnesses. EXCEPTIONS may be tal^en, time wlien, § 646. what deemed excepted to, § 647. form of, § 648. to be signed by judge and filed with clerlv. § 649. how taljen on notice to adverse party, § 650. after judgment, how taken, § 651. proceedings on refusal of court to allow, § 652. where judge ceases to hold office, file, how settled, § 653. may be taken to report of referee, § 645. bill of, necessary on motion for new trial, § 658. bill of, part of judgment roll, § 670. to sureties in libel and slander, § 416. to sureties on undertakings, how taken, § 948. to sureties in replevin, when to be taken, § 513. to referee's report, § 645. EXCESSIVE damages as ground for new trial, §657. EXECUTION, generally, §§ 681-721. within what time may issue, § 681. who may issue, form of, what to require, § 682. when made returnable, § 683. money judgments and others, how enforced, § 684. execution after five years, when allowed. § 685. when may issue after death of party, § 686. how and to whom issued, § 687. debts and credits liable to seizure on, § 688. gold dust, § 688. property not affected till levy made, § 688. right of property claimed by tliird partv, how tried, § 689. deposit of fees on trial of right, § 689. property exempt from, § 690. writ of, how executed, § 691. sale of real estate, absolute when, § 703. sale, bids, etc., §§ 695-697. 942 INDEX. EXECUTION— Continued. sale, certificate of, §§ 699, 700. sale, deed of sheriff, § 703. sale, delinquent purchaser, §§ 695-697. sale, delivery under, §§ 698-700. sale, generally, § 694. sale, notice of, §§ 692, 693. sale, proceedings, § 694. sale, real estate, eviction of purchaser, reme- dy, §708. sale, real estate, rents after, § 707. sale, redemptioner's, § 701. sale, waste, damages for. § 746. sale, waste, restraining, § 706. sale, without notice, penalty, § 693. serving, effect on property, § 688. serving, generally, § 691. notice of sale under, how given, § 692. selling without notice, penalty attached, § 693. sales, how conducted, § 694. who may not be purchaser at sale, § 694. order of sale, who may direct, § 694. refusal of purchaser to pay bid, resale, § 695. summary proceedings against purchaser re- fusing to pay, § 69'6. liability of officer, limitation of, § 697. personal property capable of manual delivery, how delivered, § 698. personal property not capable, how delivered, § 699. real pi-operty, when absolute sale or not, § 700. when not, what certificate should contain, § 700. purchasers' right, §§ 698-708. real property sold, by whom may be redeem- ed, § 701. when may be redeemed, and redemption mon- ey, § 702. successive redemptions, when may be made, § 703. notice of redemption to be given sheriff, § 703. effect of redemption, § 703. in default of redemption, conveyance to be made, § 703. J INDEX. 943 EXECUTION— Continued. on redemption, to wliom payments to be made, § 704. redemptioner, what must do to redeem, § 705. court may restrain "waste, pending redemp- tion, § 706. on good cause sliown injunction may issue, §745. rents and profits, who entitled to, § 707. eviction after purchase, what purchaser may recover, § 708. when judgment to be revived, § 70S. petition for revival of judgment, how and by whom made, § 708. party who pays more than his share, may. compel contribution, § 700. debtor of debtor may pay sheriff, § 716. for deficit on foreclosure, § 726. proceedings supplementary to execution. See Supplementary Proceedings, against steamers and boats, proceeds of sale, how applied, § 824. notice of sale of steamers to be given, § 827. stay of, on appeal to county court, § 979. from justice's courts, within what time may issue, §901. contents of justice's execution, § 902. may be renewed in justice's court, § 903. duty of officer receiving execution, § 904. proceedings supplementary, provisions of Code to apply, § 905. may issue against married woman in forcible entry, § 1164. what wages are preferred claims under, § 1206. in contempts, §§ 1209, 1210. return, §683. act relating to service of on creation of new county, p. 864. insolvency, assignment in, effect on, p. 831, § 21. EXECUTOllS AND ADMINISTRATORS. See Public Administrators; Special Administra- tors. 1. Appointment, competency, letters. See Clerk, appointment, § 304. 944 INDEX. EXECrTOKS. ETC.— Continued. corporation, power to act as, § 1348. act authorizing corporations to act as. See Appendix, Civil Code, title Corporations, who incompetent to serve as, § 1350. who may file objections to granting letters to, § 1351.' • when colleagues are disqualified, remaining executor, etc., to act, § 1425. who to act when all incompetent, § 1426. marriage, when it extinguishes right to ad- minister, § 1352. executor of an executor, disability of, § 1353. to whom letters on proved will, to issue, § 1349. petition for letters, clerli must set day for hearing, § 1373. form of letters testamentary, § 1300. to record letters, etc., § 1387. to take oath, § 1387. letters of administration, with will annexed, to be signed by cleric. § 1361. how signed and form of, §§ 1360-1362. who may obtain, order in which to grant. § 1365. not to issue to partner. § 1365. preference of persons equally entitled to, § 1366. when granted in discretion of court, § 1367, minor, when entitled, to whom granted, § 1368. who disqualified, § 1369. not to issue to married women, § 1370. to be recorded, § 1387. when to issue on, foreign will, § 1324. may be issued on lost will established, § 1340. when issued after final settlement, § 1698. special letters may be issued out of term time, § 1412. application for, how made, § 1371. application for may be granted at regular or special term, § 1372. application for, notice of application, § 1373. application for, contesting application, § 1374. application for, hearing application, § 1375. a])plication for, evidence of notice, § 1376. INDEX. 945 EXKCUTOES, ETC.— Continued. application for, must be granted, when, § 1377. application for, proofs required before grant of, § 1378. application for may be granted to others than those entitled, § 1379. revocation of, when will be revolied, § 1383. revocation of, petition filed, citation to issue. § 1384. revocation of, hearing of petition, § 1385. revocation of, prior rights of relatives, § 1386. revocation of. revocation on subsequent pro- bate of will, § 1423. with will annexed, form of, § 1361. with will annexed, when to issue, § 1350. with Avill annexed, petition for. when to be filed. § 1351. with will annexed, in case of disability of ex- ecutor, § 1354. with will annexed, authority of administra- tor with. § 1856. with will annexed, to be signed by clerk, § 1356. surviving partner to settle up business, § 1585. executor may compound, § 1588. when executor to sue. § 1590. disposition of estate recovered, § 1591. Bond. must appear and qualify, § 1349. executors and administrators, to tal^e oath and file bonds, § 1387. bonds to be recorded, § 1387. form and requirements of bond, § 1388. to file bonds, § 1388. additional bond, when required, § 1389. conditions of, § 1390. each to give separate bond, § 1391. successive suits on bond may be maintained, § 1392. sureties must justify and bonds be approved, § 1393. roiiuirement of judge on deficient bond, § 1394. right ceases on insufficient security, § 1.395. bond, when may be dispensed with. § 1396. furtlier bond may be required, § 1397. citation to executor to show cause, § 1398. 946 INDEX. EXECUTORS, ETC.— Continued. further security may be ordered, § 1399. revocation of letters for neglect to obey order, § 1400. suspension of powers of, § 1401. further security ordered without application, § 1402 release of sureties, § 1403. ^ new sureties, order of release, § 1404. forfeiture of letters for neglect to give new sureties, § 1405. application to be determined, when, § 1406. liability on bond, § 1407. corporation acting as executor, how qualifies, § 1348. Removal and suspensions, resignation, suspension of powers of, for embezzlement, § 1436. notice to be given and citation to appear, § 1437. who may appear on hearing, § 1438. notice to absconding executors, etc., § 1439. court may compel attendance, § 1440. letters revoked for failure to furnish inven- tory, §1450. letters revoked on will subsequently found, § 1423. power of executor in such case, § 1424. acts of, where appointment vacated, § 966. suspension of powers of executor, §§ 1436, 1437. to be removed for contempt, § 1721. failure to file bond, suspension for. See ante. Bond, declination of appointed executor, to act as trustee, § 1702. renunciation of right to probate by, § 1301. resignation of, when, § 1427. court to appoint successor. § 1427. liability of outgocr, § 1427. Of the powers and duties of. entitled to possession of all decedent's property, § 1452. to take possession of entire estate, § 1581. may sue and be sued for recovery of prop- erty, § 1582. INDEX. 947 EXECUTORS, ETC.— Continued. may sue for embezzlement prior to grant of letters, § 1458. may sue for possession of estate, § 1452. may maintain actions for waste, conversion, and trespass, § 1583. may be sued for waste or trespass of dece- dent, § 1584. actions on bond of executor may be brought by another. § 1586. what executors need not be parties, § 1587. may compound with debtor, § 1588. may recover property fraudulently disposed of by testator, § 1589. disposition of estate recovered, § 1591. may complete contracts of sale of real estate, § 1597. Allowance and rejection of claims by. to return statement of claims, § 1512. claim of, against estate, § 1510. sales of lands under mortgage or liens, § 1569. when may sue on partnership estate, § 1590. petition to malie conveyance, and notice, § 1598. all acts of, valid till power is revolved, § 1428. transcript from minutes of court as evidence of authority of, § 1429. absence or minority of coexecutor, effect of, § 1354. acts of a portion of executors, valid, § 1355. transcript of proceedings, evidence of execu- tor's authority, § 1429. to return inventory including homestead, § 1443. to deliver estate to heirs, § 1453. may sue without joining party interested, §369. may sue for death of person, § 377. suits to quiet title or to determine adverse claim may be brought against, § 1582. lease of property of estate, effect of, § 1579. power to lease real estate, § 1577. power to mortgage real estate, § 1577. mortgage of property, authority how obtained, § 1578. 048 INDEX. EXECUTORS. ETC.— Continued. authority to lease property of estate, how ob- tained, § 1579. mortgais^e of property by executor, effect of and liability under, § 1578. Liabilities and compensation of. when personally liable, § 1612. to be charged with all estate, ^ 1613. not to profit or lose by estate, § 1614. for uncollected debts without fault, § 1615. compensation of, § 1616. not to purchase claims against, § 1617. commissions alloAved to. § 1618. effect of judgment against, § 1504, corporation acting as executor, liability of of- ficers, §1348. Accounting and settlements by. to render exhibit, when. § 1622. citation to account, § 1623. petition for citation to render account, § 1624. citation to account on application, § 1625. objections to account, who may file, § 1626. attachment for disobeying citation. § 1627. to render accounts at expiration of term, § 1628. to account after authority revoked, § 1629. revocation of letters for neglect to account,. § 1630. to produce and file vouchers, § 1631, vouchers, when need not be produced, §1632. appointment of dav of settlement, notice j thereof, § 1633. final settlement, partition and distribution may] be simultaneous. § 1634. who may file exceptions to account, § 1635. what matters may be contested by heirs. ^\ 1636. postponement of hearing in contest of account, § 1637. settlement of accounts, when, and when not conclusive. § 1637. l)roof of notice must be made before settU ment. §16.38. funds pending settlement, § 1640. personal liability of. after decree for paymei of debts. § 1649. INDEX. 949 p:XECrTOKS, etc.— Coutiuued. liability for failure to give notice for presenta- tion of claim, § 1650. final account, when to be made, § 1652. neglect to render final account, how treated, § 1653. final settlement, decree and discharge, § 1697. costs allowed in actions by and against, § 1931. on appeal, security may be limited or modified, §946. appointment of day for settlement, § 1633. settlement of account, notice of, § 1633. EXEMPTION, property exempt from execution, §690. from jury duty, who are exempt. § 200. setting apart exempt property to insolvent debtor, p. 852. §64. money paid under insurance policy. See Civil Code. p. 782, § 8. EXONEPvATION. of bail. See Arrest and Bail. EXPERTS— skilled persons may decipher char- acters. § 1863. facts which may be proved on trial by, § 1870. may prove unwritten law of sister State, § 1902. See Evidence. EXTENSION, of time, § 1054. FACTS, to be stated in complaint § 426. insufficiency of. ground for demurrer, § 430. special issues not made by pleadings, how tried, §309. degree of certainty required to establish, § 1826. what facts may be proved on trial. § 1870. issue of. how it arises. § 590. how tried. § 592. findings of, §§ 633. 634. aa'reement on, on submission of controversy, §1138. of which court will take judicial notice. § 1875. jury as judges of, § 2101. FAIIMP'K. property of. exempt from execution, § 690. FATHER, may sue for seduction of daughter, §375. Code Civ. Proc— 80. 950 INDEX. FATHER— Continued. may sue for deatli or in.iury of child, § 376. injury action by for, § 376. rank, in order of persons entitled to adminis- ter, §1365. entitled to guardianship of minor, § 1751. FEES, officers entitled to, § 91. of court commissioners, § 259. of official reporter, § 274. tender of, to be made to witness, § 1987. of attorney, how to be paid, § 1021. of referees, § 1028. on recording mechanics' lien, § 1189. of witnesses, § 1987. See Costs; also Appendix to Political Code, title Fees. FEMININE, included in masculine, § 17. FICTITIOUS NAME, party may be sued by, §474. ignorance of real name to be stated in com- plaint, § 474. FINDINGS, referees to report within twenty days, §643. effect of findings of referees, § 644. of referee, may be excepted to, § 645. of fact, how waived, § 634. must be in writing and filed within thirty days, §633. of fact and conclusions of law, must be sepa- rately stated, §633. how prepared, § 635. practice and proceedings on, § 635. on counter-claim, § 626. on claim and delivery, § 627. general and special defined, § 624. when general or special may be given, § 625. errors in, setting aside judgment for, § 663. conclusions of law not supported by findings of fact, setting aside judgment for, § 663. notice of motion to set aside judgment for er- rors in and hearing of, § 663V^. P^INES, for neglect of juror to appear, § 238. may be imposed on usurpation of office, § 809. actions for, in police courts, § 932. INDEX. 951 FINES— Continued. imposed for nej?lect to obey mandate, § 1097. imposed for contempts, § 1218. imposed on State officers, how enforced, § 1097. See Forfeiture; Penalty. FIRE DEP.^RTMENTS, municipality liable for damage by, § 390. FIRE ENGINES, exempt from execution, §690. FORCIBLE EN'xRY, ETC., answer, § 1170. answer, verifying-, § 1175. appeal, § 1178. appeal, stay of proceedings, § 1176. appearance, § 1170. arrest, order for, § 1168. complaint, § 1166. complaint, amendment of. § 1173. complaint, description of premises in, § 1166. complaint, verifying, § 1175. continuance in cases of, § 1173. damao^es, tr -ble, §§ 735, 1174. default, .iud-'-ment by, § 1169. defendant, parties, § 1164. demurrer to complaint, § 1170. forcible detainer defined, § 1160. forcible entry defined, § 1159. forfeiture relieving against, § 1179. generally, §§ 1159-1179. holding over, tenants, § 1161. judgment by default, § 1169. judgment generally, § 1173. jurisdiction in cases of, §§ 76, 113. jury trial of issues of fact, § 1171. justices' court, jurisdiction in cases of. § 113. landlord and tenant, notices, §§ 1161, 1162. landlord and tenant, notice by landlord, § 1161. new trial, § 1178. parties generally, §§ 1164, 1165. practice, etc., § 1177. summons, alias in lien proceedings, § 1167. summons, form, etc., § 1167. summons issuing, returnable, § 1166. summons, service, etc., 8 1167. supreme court, jurisdiction in cases of, § 52. trial, defendant's case, § 1172. trial, jury, § 1171. 952 INDEX. FORCIBLE ENTRY— Continued. trial, plaintiff's case, § 1172. unlawful detainer defined, § 1161. verdict, § 1174. verification. § 1175. FORECLOSURE, action, one only, § 726. deceased mortaaiior, §§ 1569, 1570. due, debt not all, § 728. estate of deceased ])erson, §§ 1493, 1500. exclusive remedy, § 726. execution on, § 681. fees of attorney, court to fix irrespective of contract, p. 863, Stat. fixtures, § 745. generally, §§ 726-728. injunction, § 745. installments, etc., § 728. intervention, § 887. lis pendens, S 409. place of trial, §392. pleading, writings, §§ 447-449. possession, mortgagee in, § 744. commissioner, report of sale by, § 729. commissioner, sale by, manner of, § 726. commissioner, fees of court, § 729. court commissioner, oath and undertaking by on sale under, § 729. elisor, appointing to execute deed on death of court commissioner, § 726. receiver, § 564. several mortgages or debts, § 728. surplus, after sale, § 727. tender, § 997. waste, §§ 744, 745. I'OREIGN RESIDENT, summons, how served on, §412. See Absentee. FOREIGN WILL, proceedings in probate of, §§ 1322-1324. See Wills. FORFEITURE, limitation of action for, §340. place of trial in actions for, § 393. on sale under execution, without notice, § 693. liability of sheriff, § 697. of lease, relief against, § 1179. INDEX. 953 FRANCHISE, actions for usurpation of, §§802- 809. See Usurpation of Office. FRAUD. See Arrest and Bail. a ground for arrest, § 479. FRACDS. See Statute of. FRAUDULENT CONVEYANCES, fraudulent con- vevances made, and preferences, by insol- vent, eriect of, p. 850, § 59. FRESNO COUN'ii acts increasing and reducing superior judges of, p. 802. FURNITURE, exempt from execution, § 690. FUTURE included in present tense, § 17. GARNISHEE, citation to issue to, § 545. memorandum to be furnished by, § 546. when liable to plaintiff, § 544. to be served with notice of attachment, § 543. property, how attached in hands of, § 542. See Attachment. GARNISHMENT. See Attachment. GOLD COIN, legal tender notes receivable as, §667. GOLD DUST, return on execution, § 688. See Judgment. GOVERNOR, to appoint, in case of absence or in- capacity of judge, § 160. may require superior judge to hold court, § 160. GRADING. See Liens, Enforcement of. GRAND JURi, defined, § 192. ballot-box, §209. drawing, §§214-220. when to be impaneled, § 241. how constituted, § 242. panel, how filled, § 242. proceedings regulated by Penal Code, § 243. GROWING TIMBER, action for trespass for cut- ting, §733. GUARDIAN, ad litem, of infant, to api.)ear in ac- tions, § 372. how appointed, § 373. how appointed in justices' courts, § 843. power of court, how affected by Probate Act, § 1759. GUARDIAN AND WARD, appointment of guar- dian, how provided for, § 304. 954 INDEX. GUARDIAN AND WARD— Continued. general, to appear for infant, § 372, ad litem, in actions, § 372. ad litem, how appointed," § 373. of insane person, in partition, § 794. in justices' court cases, § 843. Guardians of minors. service of process on, for removing executor, § 1722. superior court to appoint, when, § 1747. petition for appointment, § 1747. minor may nominate, when, and when not, § 1748. power of judge at chambers, §§ 167, 1808. when appointment made hy court, § 1749. nomination by minor after fourteen, § 1750. father and mother entitled to appointment, when, § 1751. appointee of minor over fourteen, right to act as guardian, § 1751. minor having no father nor mother, § 1752. powers and duties of, § 1753. bond of guardian, § 1754. letters of, form, and when to issue, § 1754. order appointing, conditions may be inserted in, § 1755. letters of, and bond to be recorded, § 1766. maintenance of minor, how provided for, § 1757. testamentary guardian to give bond, § 1758. powers of testamentary guardian limited, § 1758. powers of court as to appointment of guard- ians ad litem, how affected, § 1759. Guardians of insane and incompetent persons. verified petition, what to contain, § 1763. appointment after hearing, when will be made, §17B4. powers and duties of. § 1765. proceeding for restoration of insane, etc., § 1766. definition of incompetent, mentally incompe- tent, incapable, § 1767. Powers and duties of guardians. to pay debts of ward out of ward's estate, § 1768. INDEX. 955 GUAKDIAN AND WARD— Continued. Powers and duties of snardians— to recover debts due ward and represent him, § 1769 to manage ward's estate, § 1770. to maintain ward, § 1770. to sell real estate, § 1770. maintenance of ward, liow enforced, § 1771. may join in assent to partition, § 1772. must return inventory of ward's estate, § 1773. appraisers to be appointed, § 1773. proceedings, on after discovered or acquired property, § 1773. must make annual and other settlements, § 1774. allowance of accounts of joint guardians, § 1775. expenses and compensation of, § 1776. territorial limits of authority, § 1913. power of guardian to mortgage realty. § 1577. power of guardian to lease realty, § 1577. corporation acting as guardian, powers and duties, § 1348. Sale of property and disposition of proceeds, may sell property in certain cases, § 1777. sale of real estate to be made on order of court, § 177S. application of proceeds of sale, § 1779. proceeds, how to be invested, § 1780. order of sale, how obtained, § 1781. notice to next of kin, how given. § 1782. copy of order to be served, or published, § 1783. on written consent, notice need not be given, § 1783. hearing of application. § 1784. who may be examined on hearing, § 1785. costs, to whom to be awarded, § 1786. order of sale, what to specify, § 1787. bond to be given before selling real estate, § 1788. proceedings to conform to provisions relating to estates of deceased persons, § 1789. order of sale, limitation to, § 1790. conditions of sale, of estate of minor heirs, § 1791. 956 INDEX. GUARDIAN AND WARD— Contiuiied. bond and mortg:age to be given for deferred payments, § 1791. court may order investment of money, § 1792. Nonresident guardians and wards. guardians of nonresident persons, § 1793. powers and duties of, § 1794. to give bonds, § 1795. to what guardianship to extend, § 1796. removal of nonresident ward's property, § 1797. notice, and proceedings on removal, § 1798. order of removal to be made, § 1798. discharge of person in possession, § 1799. embezzlement by, § 1800. General and miscellaneous provisions. examination of person suspected of defrauding ward, § 1800. or of concealing ward's property, § 1800. removal and resignation of guardian, § 1801. surrender of estate, § 1801. guardianship how terminated, § 1802. new bond when required, § 1803. bond to be filed, action on, § 1804. limitation of action on guardian's bond, § 1805. limitation for recovery of property sold, § 1806. more than one guardian may be appointed, § 1807. order appointing guardian, how entered, § 1808. undertakings, requisites of, § 1809. HABEAS COivPUS, superior, jurisdiction, § 76. supreme court, jurisdiction, §§ 51, 54. HANDWRITING, comparisons, how, § 1945. how proved, §§ 1943-1945. of decedent, entries, § 1946. proof of on probate of will, § 1315. HEARSAY. See Evidence, § 1845. HEIRSHIP. See Estate of Deceased Persons. claim of, procedure, § 1664. HIGHWAY, trespass on, damages for, §§ 733, 734. HOLIDAYS, generally, §§ 10-13. nonjudicial days, § 1.34. powers of courts, § 134. HOMESTEAD, setting apart to survivor, §§ 1474, 1486. INDEX. 957 f HOMESTEAD -Con riniied. setting apart of homestead to insolvent debtor, p. 852, § 64. death decreeins: title in surviving: spouse, § 1723. See Estates of Deceased Persons. HOUSEHOLDER, propertv of, exempt from exe- cution. § 690. Hl'MBOLDT COUNTY, act providing additional Judge in. p. 804. caus3 of challenge in justice court in, p. 860, Stat. HISBAND, not liable for debts of sole trader, § 1821. when not to be vritness against Avife, § 1881. when, must testify, § 1882. Avhen to be joined with wife as party. § 370. community property, death of one spouse, title decreed to be in other when. § 1728. IMMATERIAL errors may be disregarded, § 475. IMPEACHMENT, court for trial of, how com- posed, § 36. jurisdiction of, § 36. officers of court, § 37. trinl. provided for in Penal Code, § 38. UNIPRISONMENT, effect of, on limitatiou of ac- tions, §352. of judgment debtor, when may be, § 715. for contempt of court, § 1219. for disobedience of mandate. § 1097. See Arrest and Bail. IMPROVEMENTS, value of, when allowed as set-off, § 741. estimation of value of, in eminent domain, § 1248. when not assessed in eminent domain, § 1249. INADVERTENCE, relief from by amendment, § 473. INCONSISTENT STATUTES, Code repeals, § 18. INDE^NINTTY, action against sheriff, § 1055. INDICTMENTS, appellate jurisdiction in cases of, §52. INDIRECT EVIDENCE, defined, § 1832. See Evidence. 958 INDEX. INDISPENSABLE EVIDENCE, defined, §1836. See Evidence. INFANT, to appear by guardian, § 372. effect of infancy, on limitation of actions, §§ 328, 352. summons, bow served on, § 411. one year after removal of disability given to infant to contest probate of will, § 1333. letters of administration durante minore aetate, § 1354. sbare of, on partition, to be paid to guardian, §793. sbare of, on partition, securities may be taken. § 777. effect of infancy, on claim to escheated es- tates, § 1272. who entitled to guardianship of, § 1751. distribution of interest in estate of infant without guardian to treasurer, § 1703^2- INFERENCE, defined, § 1958. founded on what, § 1960. INJUNCTION, abortive, § 532 n. answer, after, only on notice, § 528. corporation, suspending business of, by, § 531. court commissioner cannot issue, § 259. court or judge or county .judge may grant, § 525. definition of. § 525. dissolving, §§ 532, .5.33. execution, after, waste, § 745. foreclosure, during, waste, § 745. generally, §§ 525-533. holidays, writ may be served on, § 76. judge may grant, § 525. limitation not to run when action stayed by, §356. order for, when made, §§ 526, 527. order to show cause, § 530. restraining order, § 530. Sunday, writ may be served on, § 76. undertalving. justification, etc., § 529. vacating, §§ 532, 533. waste during foreclosure or after execution, § 745. INDEX. 959 IN.TIWCTION— Continued. water, enjoining diversion, damages for, § 532. venue of action where injunction prayed, § 392. duration of, where granted prior to trial, § 527. conclusiveness of judgment against sureties on bond, § 532. water, proceedings on petition for injunction to restrain diversion of, § 532. INJURIES, civil action arises from, § 25. kinds of, enumerated, § 27. to property, defined, § 28. to person, defined, § 29. child, father, mother, or guardian may sue for, §376. action for death or, § 377. claims for, may be united, § 427. place of trial in actions for, §§ 395, 832. liability of steamers and vessels for, § 813. liability, on entry for survey of land, § 743. liability for, after sale on execution, § 746. INQUEST, jury of, what, § 195. impaneling ju'-y of, § 254. INSANE PERSONS, guardian ad litem, § 372. definition of incompetent, mentally incompe- tent, incapable, § 1767. when guardian may be appointed for, § 1763. appointment of, on hearing, § 1764. powers and duties of guardians of, § 1765. proceedings for restoration of, § 1766. guardians to recover share of, on partition, § 794. may consent to partition and execute release, § 795. service of summons on, how made, § 411. cannot be witnesses, § 1880. See Insanity. INSANITY, effect of, on limitation of actions, §352. effect of on claim to escheated estates, § 1272. power of guardian of incompetent to mortgage or lease realty, § 1577. distribution of interest in estate of incompe- tent to treasurer, § 1703^2- See Insane Persons. 960 INDEX. INSOLVENCY, 1. Generally. contempt, laws relating to, applicable in in- solvency proceedings, p. 854, § 68. general subject of act, p. 818, § 1. death of debtor after order of adjudication, ef- fect of, p. 852, § 61. words in singular include plural and vice versa, p. 853, § 66. Insolvent act of 1880, repeal of, not to affect existing proceedings, p. 856, § 72. insolvent act of 1880, repealed, p. 856, § 72. how cited, p. 818, § 1. commencement of proceedings, what deemed to be, p. 853, §65. act of insolvency, filing of petition is, p. 818, §2. 2. Voluntary. who may petition, p. 818, § 2. filing of petition is act of insolvency, p. 818, §2. petition what to state, p. 818, § 2. petition, verification of, p. 819, § 5. adjudication of insolvency, order of, pp. 818. 819. §§ 2, 5. adjudication of insolvency, publication of or- der of, p. 820, § 6; p. 821, § 7. adjudication of insolvency, service on qv(^'^ itors, p. 821, § 7. adjudication of insolvency, cost of publication and service, p. 821, § 7. schedule and inventory, what to contain, p. 810, §§ 3, 4. schedule and inventorv, verification of. p. Sl!». §5. order directing sheriff to take possession of es;- tate, p. 820, §6. appointing time and place for meeting of creditors, p. 820, § 6. assignee, appointment of time for election of. p. 820, § 6. staying of proceedings against insolvent, p. 820, § 6. assignee or receiver, delivery of property to by sheriff, p. 820, §6. assignee, right to vote at election of. p. 822. * S. INDEX. 931 INSOL\'ENX'Y— Continued. claims, how established, p. 822. § 8. claims, verification of, p. 822, § 8. claims, exceptions to, p. 822, § 8. claims, exceptions to, decision of court on, not conclusive, p. 822, §8. assignee, holder of secured claim, rights of as to voting for, p. 822, § 8. sheriff, compensation of, p. 820, § 6, 3. Involuntai-y. petition in, what to state, p. 823, § 9. petition in, verification of, p. 823, § 9. petition, service of, p. 825, § 11. adjudication of insolvency, made on petition of five creditors when, p. 823, § 9. petition, amendment of, p. 823, § 9. answer must be specific and verified, p. 826, §12. trial by jury on issues raised by petition and answer, p. 826, § 12. petition, grounds of demurrer to, p. 826, § 12. trial of issues on petition and answer, p. 828, §15. bond accompanying petition, p. 823, § 9. order to show cause, failure of service, pro- ceedings on, p. 825, § 11. order to show cause why debtor should not be made and service of, p. 825, §§ 10, 11. order to show cause, service of, p. 827, § 14. publication of order to show cause, p. 827. § 14. order to show cause, when may be served by publication, p. 825, § 11. costs of publication and service, depositing with clerk, p. 827, § 14. adjudication of insolvency, p. 826, § 13. forbidding payment of debts, p. 826, § 13. staying proceedings against debtor, p. 826, §13. forbidding delivery or transfer of property, p. 826, § 13. ordering property taken into custody by sher- iff, to be sold, p. 830, § 18. order forbidding payment of debts, p. 825, §10. Code Civ. Proc— 81. 962 INDEX. INSOLVENCY— Continued. order forbidding delivery or transfer of prop- erty, p. 825, § 10. filing schedu'e and inventory, p. 826, § 13. appointing time and place of meeting of cred- itors, p. 826, §13. time and place of meeting of creditors, no- tice of, p. 827, § 14. publication of order fixing time and place of meeting of creditors, p. 826, § 13. assignee, time of election of, p. 826, § 13. ordering sheriff to talie possession of property and boolvs, p. 826, § 13. delivery of property by sheriff to receiver or assignee, p. 826, § 13. schedule and inventory, affidavit to, p. 826, § 13. inventory of property taken by sheriff where service cannot be had, p. 828, § 16. schedule, where debtor cannot be found, p. 828, §16. custody of property, where sheriff cannot be found, p. 828, §§ 16, 17. bonds where sheriff takes property where debtor cannot be found, pp. 828, 829, §§ 16, 17. sheriff, compensation of, p. 826, § 13. appeal from decision of court, bond on, p. 829, §17. dismissal of proceedings, damages on, p. 829, §17. dismissal of proceedings and costs, p. 828, §15. 4. Effect of Proceedings. judgment and execution, effect of assignment in insolvency on, p. 831, § 21. attachment l.evied within thirty days is dis- solved by assignment in, p. 831, § 21. actions against insolvent not stayed where amount in dispute uncertain, p. 844, § 49. actions against insolvent stayed pending pro- ceedings, p. 844, § 49. actions against insolvent continued to fix lia- bility of sureties, p. 844, § 49. statute of limitations does not run pending proceedings, p. 852, § 62. INDEX. 963 INSOLVENCY— Continued. 5. Books. debtor must deliver books, accounts, vouch- ers, etc., to court, p. 835, § 20. 6. Receivers. receiver, appointment of before appointment of assignee, compensation of, p. 853, § 67. receiver may be appointed before appointment assignee, p. 853, § 67. receiver, manner of appointment, p. 853, § 67. receiver, duty of on appointment of assignee, p. 853, § 67. f. Assignees. election of, p. 831, § 19. majority in amount of claims elects, p. 831, §19. clerk to keep record of proceedings on election of, p. 831, § 19. bond of, p. 831, § 19. bond of, extent of liability under, p. 831, § 19, p. 833, § 24. court to appoint, when, p. 831, § 20. duty to record in counties where debtor has land, p. 833, §23. revocation of appointment, p. 833, § 24. right to resign, p. 833, § 24. assignment of property to, p. 8.^1, § 21. delivery of books, accounts, vouchers, etc., to, p. 835, § 27. must file and serve schedule and inventory when, p. 833, § 23. penalties on behalf of, for concealment of property, p. 835, § 28. must convert estate into money, p. 836, § 29. powers of, p. 833, § 25. title of and relation of, p. 831, § 21. private sale by, p. 836, §29. right of action of, p. 832, § 22. action by, setoff or counterclaim in, p. 833, § 25, subd. 1. rights of action for damages may be compro- mised when, p. 836, § 31. must keep accounts, p. 837, § 33. time of exhibiting account, p. 837, § 33. 964 INDEX. INSOLVENCY-Continued. account of, exceptions to and contest of, p. 837, §33. account, affidavit as to notice of hearing, p. 837, §33. account of, notice of hearing of, p. 837, § 33. account, ordering upon motion of creditors, p. 838, § 34. final account, exceptions to and contest of, p. 839, §38. account, failure to file, discharge for, p. 839, §37. discharge of for failure to render account or pay dividend, p. 839, §37. hearing of final account and discharge of as- signee, p. 839, §38. final account of, notice of hearing and settle- ment of, p. 839, § 38. to he allowed necessary expenses, p. 836, § 32. commissions of, p. 836, § 32. 8. Preferences. fraudulent preferences and transfers, effect of, p. 850, § 59. person accepting cannot prove claim, p. 845, §50. 9. Claims. person accepting preference cannot prove claim, p. 850, § 59. creditor may act by attorney or agent, p. 852, §63. all debts may be proved, p. 842, § 41. all claims for chattels wrongfully withheld may be proved, p. 842, § 42. rent and debts falling due at fixed and stated periods, p. 843, § 46. contingent debts, proof of, p. 842, § 44. mutual debts and credits, p. 843, § 47. setoff or counterclaim purchased after filing of petition allowed, p. 843, § 47. setoff or counterclaim not provable not al- lowed, p. 843. § 47. setoff or counterclaim, purchaser by debtor af- ter petition filed allowed, p. 843. § 47. subsequently proved, right of claimants to dividends, p. 838, § 36. INDEX. 965 INSOLVENCY-Coutinued. person liable as bail, surety, or guarantor of debtor, rights of, p. 838, § 35. claim as indorser, surety, bail, or guarantor, which has not become absolute, p. 842, § 43. claim as bail, surety, or guarantor, where lia- bility absolute but not paid, p. 843, § 45. claim as bail, surety, guarantor, making pay- ment after proceedings instituted, p. 843, §45. holders of secured claims, rights of, p. 843, §48. proving fictitious debts a misdemeanor, p. 851, §60. ordering claims for damages to be tried, p. 842, §42. debtor proving claim, effect as w^aiver of right of action, p. 844, § 49. lien not affected by proving claim, p. 844, § 49. proceedings instituted are discharged by prov- ing claim, p. 844, § 49. 10. Disposing of property— homesteads and ex- emptions. court may sell part of property when, p. 836, §30. court may order sale of perishable, etc., prop- erty, when, p. 836, § 30. outstanding debts and obligations may be sold when, p. 836, § 31. exempt property, setting apart, p. 852, § 64. homestead, setting apart, p. 852, § 64. 11. Partnerships. debtor includes partnerships and corporations, p. 853, §66. may be adjudged insolvent, p. 839, § 39. petition in insolvency, p. 839, § 39. jurisdiction of court where partners reside in different counties, p. 839, § 39. joint and separate property, distribution of, p. 839, § 39. insolvency of, discharge of partners, p. 839, §39. proceedings in insolvency by or against sur- viving partners, p. 839, § 39. proceedings on insolvency of, p. 839, § 39. 966 INDEX. INSOLVENCY— Continued. petition by part of partners, proceedings on, p. 83&, §39. 12. Corporations. debtor includes partnerships and corpora- tions, p. 853, § 66. provisions of insolvent act apply to, p. 841, §40. insolvency of, proceedings on, p. 841, § 40. petition in insolvency by, p. 841, § 40. discharge not granted to, p. 841, § 40. penalty for fraudulent conveyances, p. 841, §40. 13. Dividends, declaring, p. 837, § 33. discharge of assignee for failure to pay, p. 839, §37. final on settlement of final account and dis- charge of assignee, p. 839, § 38. person liable as bail, surety, or guarantor of debtor, rights of, p. 838, § 35. creditors to share property pro rata, p. 838, §35. subsequent claimants, right of to, p. 838, § 36. subsequent debts, proof of, effect on, p. 838, §36. 14. Discharge. of partners, p. 839, § 39. not granted to corporations, p. 841, § 40. time for application for, p. 000, § 52. notice of application for, p. 846. § 52. opposition to and manner of trial, p. 848, § 54. oatli before discharge granted, p. 846, § 53. when granted, p. 848, § 55. refusal of, effect of on proceedings, p. 850, §58. when discharge not granted, p. 846, § 53. certificate of, p. 848, § 55, p. 849, § 57. what debts not released by, p. 849, § 56. what debts released by, p. 849, § 57. setting aside for fraud, p. 849, § 57. 15. Dismissal; appeal. dismissal of proceedings before appointment of assignee on order of court, p. 855, § 70. dismissal on petition of creditors, p. 855, § 70. INDEX. 967 INSOLVENCY— Continued. dismissal after appointment of assignee, p. 855, § 70. appeals in, how taken, p. 855, § 71. appeals may be taken from what orders in, p. 855, §71. appeals in, stay of proceedings, p. 855, § 71. appeal in, bond on, p. 855, § 71. 16. Costs. costs in proceedings in involuntary insolvency, allowance of, p. 854, § 69. costs of attachment proceedings dissolved by insolvency, allowance of, p. 854, § 69. contested matters in, costs in, allowance of, p. 854, §69. 17. Offenses. penalty for concealment of property, p. 835, §28. misdemeanor, obtaining credit under false pre- tenses, p. 851, § 60. misdemeanor, secreting or concealing prop- erty, p. 851, § 60. misdemeanor, destroying, altering, or conceal- ing books, p. 851, § 60. misdemeanor, gaming, p. 851, § 60. misdemeanor, making gifts, payments, or transfer to avoid debts, p. 851, § 60. misdemeanor, omitting property from sched- ule, p. 851, §60. misdemeanor, proving fictitious debts, p. 851, §60. misdemeanor, fictitious losses and expenses, p. 851, §60. misdemeanor, making transfers of goods ob- tained on credit, p. 851, § 60. INSPECTION OP WRITINGS, refusal of, its ef- fect, § 449. may be demanded, § 1000. order of survey of real property, §§ 742, 743. every citizen entitled to inspect and copy pub- lic writings. S 1892. party inspecting not bound to produce writing in evidence, § 1939. docket of .iiidgment to be always open for in- spection, § 673. «fi8 INDEX. INSPECTION OF WRITINGS— Continued. produced by witness to refresli liis memory, § 2047. writing stiown witness may be inspected by adverse party, § 2054. INSTRUCTIONS TO JURY, charge, what to state, §608. what must be furnished on request, § G08. as to findings of fact, § 625. jury may return for further, § 614. special, how given, § 609. as to evidence, § 2061. may be given on holidays, § 134. INSTRUMENTS IN WRITING. See Private Writings; Written Instruments. INSUFFICIENCY, of facts, ground for demurrer, § 430. of evidence, ground for new trial, § 657. INSURRECTION, change of place of holding court, on account of, § 142. INSURANCE COxMMISSIONER, corporation formed to act as surety, examination into by insurance commissioner, and duties of, § 1056. ITALIAN LANGUAGE, act authorizing appoint- ment of Italian interpreter, p. 856. INTERPRP:TER, generally, § 1884. of the Italian language, § 1884. act authorizing appointment of Italian inter- preter in criminal proceedings. See Penal Code, Appendix, title Interpreters, act relating to interpreters before grand jury. See Penal Code, Appendix, title Interpreters. INTERVENTION, when .it takes place, and how made, § 387. parties may be brought in, § 387. IRREGULARITY, of proceedings, ground for new trial, § 657. effect of, in proceedings on judicial sale, § 708. IRRELEVANT MATTER, may be stricken out, §453. INTERROGATORIES, annexed to commission to take testimony, § 2025. See Evidence. I INDEX. 969 ISSUES, defiuitiou. kinds of, § 588. of laAv, how raised, § 589. of fact, how raised, § 590. of law, how tried, § 591. of fact, how tried, § 592. of law, to be lirst disposed of, § 592. judgment on, § 036. cases to be placed on calendar, § 593. parties may bring-, to trial, § 594. postponement of trial of, § 595. proceedings to defeat postponement, 8 596. special, § 309. in partition suits, § 759. in mandate, when may be tried by jury, §1090. in proceedings against joint debtors, § 994. in forcible entry and detainer. § 1171. in justices' courts, defined, § 878. trial of fact by jury, how waived, § 631. how waived in justices' courts, § 883. trial of issues by referees, § 038. See Trial. ITEMS OF ACCOUNT, need not be set out in pleading, § 454. JOINDER. See Parties; Causes of Action. JOINT AUTHORITY, majoritv mav act, § 15. JOINT DEBTORS, proceedings against, pames not summoned, § 989. summons, what to contain and how served, i^990. affidavit to accompany summons, § 991. answer, when filed and what to contain, § 992. pleadings, what cousutute, §993. issues, how tried, § 994. verdict, what to be, § 994. judgment, where some defendants only are served, § 414. contribution, § 709. proceedings against those not served, §§ 989- 994. JUIXJES. See Courts: .Judicial Officers: Superior Courts; Superior Judges, counties having two or more, § 66. of San Francisco, § 67, terms of office, § 68. 970 INDEX. JUDGES- Continued. computation of years of office, § 69. vacancies in office of, § 70. courts lield by other, § 71. supreme, qualifications of, § 156. supreme court, citizensliip and residence, § 156. supreme court, quorum, § 43. superior, qualifications of, § 157. holding- courts at request of governor, § 160. ineligibility of, § 161. not to act as attorney, § 171. must not have attorney for partner, § 172. powers of, out of court, § 176. powers of, as to conduct of proceedings, § 177. to punish for contempt, § 178. to take acknowledgments, § 179. to refuse subsequent application for orders, §182. proceedings not to be affected by vacancy, § 184. shall have means to carry jurisdiction into effect, s 187. when not to act as executors, § 430. when disqualified, proceedings transferred, §431. may present claim against estate of deceased, §495. relieved from office, to settle exceptions, § 653. may be a witness, § 1883, appeal, undertaking on, power to fix amount of, §943. appeal, undertaking on, power to take justifi- cation. § 948. arrest, order for, by, § 480. attachment, releasing, § 554. attorney agreed on by the parties, § 72. attorney, must not act as. §§ 171, 172. attorney, must not have partner, § 172. by agreement of parties, § 72. chambers, power at superior, §§ 166, 176. chambers, power at, supreme court, §§ 165, 176. court, holdin'^ in another county. § 160. INDEX. 971 JUDGES— Continued. county other than his own, holdin.ir court in, §1G1. commission to take evidence without state, power to issue, ^ 2024. disqualified, Avhen, § 170. election of, §§ 40, Go, 110. execution, proceedings supple mentaiy to, power in, §§ 714-721. injunction, dissolviuj;-, §§ 532, 533. injunction, grantinjar, § 529. inspection, power to order, § 1000. jury, to assist at drawing, §§ 215, 216. notice of motion of setting aside judgment and hearing of, § 663i/o. prisoners, power to discharge, §§ 114o-1154. pro tempore, § 72. residence, superior, § 158. residence, justices of the peace, § 159. setting aside judgment not supported by spe- cial verdict, § 663. witnesses, may be, in own courts, § 1880. acts increasing and reducing number of judges in various counties. See Appendix, ti- tle Courts. JUDGMENT, ►.ee Decisions. definition of, § 577. against whom may be given, § 578. against administrator, etc., § 1504. against attorney at law, for suspension or re- moval, § 299. against one of several debtors, costs may be severed, § 1026. against one, and action proceed as to others, §579. against married woman in forcible entry, § 1164. against sheriff for official acts, conclusive on sureties, § 1055. against decedent, when not a lien, § 1506. award, when it has effect of, § 1286. by default, -onerally. § 585. by default, relief against, § 473. by default on amended complaint, § 432. 972 INDEX. JUDGMENT— Continued. L ,' default in forcible entry, § 1169. confession by, §§ 1132-1134. costs, when allowed to plaintiff, § 1022. costs, when allowed to defendant, § 1024. costs, when allowed to one of several defend- ants, § 1026. costs, to be included on judgment, § 1035. costs, on appeal, in discretion, § 1027. currency in, § 667. deposit, to be applied to satisfy, §§ 500, 550. docket of, effect of, §899. estoppel, § 1908. effect of, upon rights of parties, § 1908. effect of, against discharged r^nsoner, § 1152. errors to be disregarded, § 475. effect of appeal from, § 1176. effect of deatii after verdict. §§ 669, 1506. for contempt, final, § 1222. final, may be appealed from, § 939. final, in district court, appeal from, § 963. how enforced, after five years, § 685. how pleaded, § 456. how revicAved, §§ 936, 937. in .iustices' court, not a lien unless recorded, § 900. insolvency, assignment in, effect on, p. 831, §21. interest and costs to be iuclu.- in, § 1035. in supreme court, concurrence necessary, §47. may be appealed from, § 939. mav be filed and docketed in other coun- ty, §898. memorandum of costs to be furnished, 5 ^.o3. modified on appeal, costs in discretion, § 1027. on counter-claim, § 666. of dismissal and nonsuit, § 581. of dismissal against non-resident, § 1037. of .iustices' abstract of, § 897. of justices' and police courts, how appealed from, § 974. on appeal from inferior court, may be ap- pealed from, § 939. on answer filed, relief granted, § 580. INDEX. 973 JUDGMENT-Continued. on failure to answer, relief granted, § 580, on failure to answer, in what cases granted, § 585. on demurrer, § G36. on confession, hoAv entered, § 1134. on submission of controversv, § 1139 on the merits, § 582. on report of referee in partition, § 766 on usurpation of office, § 808, on review of case, § 1075. on review, what constitutes, § 1077. on appeal, part of .judgment roll, § 958. on appeal, remittitur to be certified bv clerk, 5 958, renewal of. in foreclosure, on eviction of pur- chase, § 708. satisfaction of. under attachment, § .550. supreme court always open to render. § 48. what deemed adjudged on former judgment. § 1911. what rights determined, in actions for usurpa- tion, § 808. when reversed, restitution to be made, § 957 when conclusive, § 1908. when conclusive in foreclosure, § 726. what treatment of, constitutes contempt, § 1209. appeal from. § 939. Manner of givin^ and enterinp-. book to be kept by clerk. § 668. case may be brought for argument, § 665 docket, how kept and contents of. § (.r2. docket, to be open for inspection, § ^673. gold coin or currencv, § 667. lien of, defined. § 671. no lien on estate where death occurred after verdict. § 1506. roll, what to constitute, § 670. satisfaction of, how made, § 075. transcript of, may be filed in any countv. § 674. to be entered within twenty-four hours, § 664. Code Civ. Proc— 82. 974 INDEX. JUDGMENT-Continued. upon death after verdict, not to be a lien, § 669. when counter-claim exceeds demand, § 666. In particular actions, in general, what is, § 577. in replevin, to be .^n alternative, § 667. in special proceedings, defined, § 1064. in actions to quiet lule, § 740. in contested elections, § 1122. in controversy without action, § 1139. in escheated estates, § 1271. in forcible entry and detainer, by default, § 1169. in forcible entry, on verdict, § 1174. in foreclosure, § 726. in actions for usurpation of office, § 805. in usurpation— fine may be imposed, § 809. in partition suits, § 759. in partition, effect of, § 767. in partition, how enforced, § 684. in election contests, § 1122. in mandate to be granted, § 1095. in actions for enforcement o-u liens, § 1192. on liens, what to include, § 1193. on Hens, rank of liens, § 1194. on liens, docketed for deficiency, § 1195. in proceedings relative to escheated estates, § 1271. in proceedings to contest probate, § 1314. in proceedings to declare wife sole trader, §1817. in contempts, fine, imposed, §1218. on confession without action, §§ 1132-1135. In justices' courts, on confession in justices' courts. § 889. dismissal in justices' courts, § 890. on verdict in justices' courts, § 891. on demurrer in justices' courts, § 892. on offer to compromise, § 895. costs in. § S96. abstract of, in justices' courts. § 897. abstract to be filed and docketed. § 898. costs, allowed in justices' courts, § 896. INDEX. 975 JUDGMENT— Continued. docket of justice, effect of, § Sbv. docliet not a lien unless abstract is recorded, ■ § 900. f excess of, remitted to save jurisdiction of jus- tice, §894. on trial in justices' courts, § 892. on offer to compromise in justices' courts, ?895. when defendant subject to arrest, § 893. JUDGMENT BOOK, to be kept by clerk, s 668. confession of judgment to be entered in, § 1134. JUDGMENT DEBTOR, execution may issue against, § 682. execution after death of, § 686. property of, exempt, § 090. may indicate property to levy on, § 691. may direct order of sale, § 694. may redeem property sold, wiien, § 702. to whom payments to be made, § 704. supplementary proceedings against, § 714. may be imprisoned, when, § 715. debtor of, may pay creditors' claim, § 710. may be punished for contempt, § 721. earnings of, when exempt from execution, §690": JUDGMENT KOLL, what to contain, § 670. to contain judgment on appeal. § 9.58. what constitutes, in proceedings for dissolu- tion, § 1233. JUDICIAL DAYS, what are, § 133. non- judicial days, § 134. See Adjournment. JUDICIAL EVIDENCE, defined, § 1823. JUDICIAL NOTICE, one kind of evidence, § 1827. facts of which court Avill take, 5 1875. JUDICIAL OFFICERS. See Courts; Juds^es; Police Courts; Superior Courts; Superior Judges, in general, §§ 156-161. mav take acknowledgments and affidavits, §179. may take depositions in this State, § 2031. exempt from jury duty, § 200. 976 INDEX. I JUDICIAL OFFICERS— Contimied. incidental powers and duties of, §§ 176-179. powers of, out of court, § 176. enumeration of powers, § 177. may punisli for contempt, § 178. what acts are contempts, § 1209. subsequent application for orders, prohibited, §182. subsequent applications, a contempt, § 183. procee<1in.2:s not affected by vacancy, § 184. proceedin,2:s to be in English, § 185. abbreviations and fi.sures, § 186. power to enforce exercise of iurisdiction, <• -I Qi-r JUDICIAL POWERS, by special investment, 1 190. JUDICIAL RECORD, defined, § 1904. I how authenticated, as evidence, § 1905. ' of foreign country, how authenticated, § 1906. foreign, what must contain, § 1906. copy of. of foreign country, § 1907. effect of .iudsrment upon rights, s 1908. effect of judicial orders, when conclusive, § 1909. when parties to be deemed the same. § 1910. v^hat deemed adjudged in, judgment, § 1911. where sureties bound, principal is also, § 1912. of sister state, its effect, § 1913. of court of admiralty, § 1914. of foreign judgment, its effect, § 1915. manner of impeaching, § 1916. jurisdiction required to sustain, § 1917. justices' judgment in other state, how proved, § 1921. See Evidence. JUDICIAL REMEDIES, defined, § 20. how divided, §21. JURISDICTION, acquired by voluntary appear- ance, § 416. demurrer for Avant of, § 480. not waived V»y not raising objection, § 434. of judicial officers, to take acknowledgments, etc.. § 179. includes necessary means to enforce, § 187. INDEX. 977 JUmSDICTION— Contiuued. in change of name, § 1275. in escheated estates, § 1269. in proceedings on confession of judgment, § 1132. in insolvency cases, § 76. in cases for breaches of the peace, § 115. in proceedings for change of names, § 1275. in proceedings for condemnation of land, § 1243. I over estate in several counties, § 129o. I of court of impeachment, § 37. ^ of supreme court, §§ 50-53. [ of superior courts, §§ 75-77. j of superior courts, act conferring jurisdiction ' of district, probate, and county courts, p. : 865. 1 of superior court, continuation of trials in, p. 865, Stat. of justices' courts, §§ 112-115. of justices' courts, territorial limit, § 106. of justices' courts, civil. § 112. of justices' courts, concurrent, § 113. of justices' courts, civil, restricted, § 114. of justices' courts, criminal, § 115. of police courts, §§ 121. 932. means to carry into effect, § 187. when acquired, § 410. want of, a ground for demurrer, § 430. want of ground for impeachment of record, § 1916. what required to sustain record, § 1917. ' JURY, admonition to, in separation, § 61i. 1 agreement of, § 618. ballot-box, § 209. certificKl list to be filed with clerk of superior court, § 208. challenges, § 601. challenges, grounds for, § 602. challenges, for cause, trial of, § 603. charge to, §§ 608, 609, 2102. charge to, further, § 614. deliberations of, §§ 611-613. definition of, § 190. discharge of, § 616. 978 ' INDEX. JITHY— Continued. discharge of, holidays, § 134. drawing-, §§ 211, 214-220, OUO. eminent domain, § 1248. excusing, §§ 201, 615. exemptions, § 200. exemptions, atfidavit, § 202. facts, to decide, §2101. failure to attend. § 238. findings, special, § 625. formation of, § 600. grand, box, §§ 209, 211. grand, definition of, § 192. grand, how often impaneled, § 241. grand, number nineteen, etc., § 242. grand, reference to Penal Code, § 243. holiday, verdict may be received and jury dis- charged, and instructions given on. § 617. impaneling, §§ 241-254. inquest, §§ 195, 235, 254. insolvency, petition and answer in trial by jury on issues in, p. 826, § 12. instruction, §§ 608, 609. instructions, further, § 014. instructions, holidays, giving on, § 134. irregularity, §§ 601, 657. justices' courts, § 2.30. keeping together, § 613. kinds of, § 191. listed, how, §§ 204-208. oath, §604. obedience, enforcing, § 238. papers, may take when retiring, § 612. police courts, § 230. polling, § 618. probate contest, § 1313. qualifications necessary. §§ 198, 199. regular, serve one year, § 210. J separation of, § 611. ^ siclvuess, § 615. summoniuir, §§ 225-235. talesmen, § 227. term, close of, effect, § 617. trial, box, §§ 209, 211. trial, court not of record, calling, § 250. INDEX. 9T9 JUKY— Continued. trial, court of record, calling, § 246. trial, court of record, impaneling, §§ 600-604. trial, definition of, § 193. trial, number twelve, § 194. verdict, S§ 618, 024, et seq. verdict, aflidavit to impeach, § 657. verdict, counter-claim, § 626. verdict, correction of, § 619. verdict, entry of, § 628. verdict, generally, §§624, 625. verdict, informal, correcting, § 619. verdict, sealed, § 617. verdict separate, § 624 n. verdict, special, §§ 624, 625. verdict, specific property, § 627. view by, § 610. waiver of, § 631. waiver of, justices' courts, § 883. witnesses, may be, § 1883. JUSTICES OF THE PEACE. In cities and counties. courts and justices, § 85. clerk of, § 86. sheriff and deputies, ex-officio officers, § 87. officers, and office hours, § 88. actions in, § 89. reassignment and transfer of actions, § 90. payment of fees, § 91. transcripts and other papers, § 92. doclvets, § 93. jurisdiction, territorial extent, § 94. practice aiid rules, § 95. clerk of, not to act as attorney, § 96. salaries, § 97. what justices successors of others, § 98. act creating in Berkeley, p. 8.o9. act providing election, compensation, iurisdic- tion, practice, etc., in Berkeley, p. 859. In townships. at least one in each township, § ±^6. where held, § 104. what justice may hold for another, § 105. territorial jurisdiction, § 106. what justices successors of others, § 107. 980 INDEX. JUSTICES OF THE PEACE— Continued. In general, terms of office, § 110. election and term of office of, § 85. vacancies, how filled, § 111. justice, where to reside, § 159. disqualification to sit or act, § 170. not to practice before justices' court, § 171. not to have attorney for partner, § 172. blanks in papers to be filled, except subpoe- nas, §920. justices to receive moneys and pay to parties, §921. in case of disability, anotljer justice may at- tend, § 922. may require security for costs, § 923. who entitled to costs, § 924. what provisions of Code applicable to, § 925. may receive deposit in lieu of undertaking, § 926. act providing manner of compensation of, p. 857. depositions issuing from justices' court, how taken, ^S 2024. Place of trial of actions in. in what township or city may -^e commenced, §832. place may be changed in certain cases, § 833. limitation on right to change, § 834. to what court transferred, § 835. proceedings after order changing venue, § 836. effect of order clianging venue. " 837. transfer of cases to district court, § 838. Actions, how commenced in and appearance, by filing complaint and issuance of summons, § 839. summons may issue within a year, ? 840. issuance of summons, how waived, § 841. appearance, by attorney or in person, § 842. guardian, how appointed, § 843. summons, how issued, and what to contain, § 844. time for defendant to appear, § 845. alias summons, when may issue, § 846. several alias, may be issued, § 847. INDEX. 981 JUSTICES OF THE PEACE— Continued, limitations npon time of service, § 848. snmmons, by whom, and how served, § 849. hour ixiven for appearance, § 850. act concerning? service of summons in justice's court of San Francisco, p. 858. Pleadings in. form of, § 851. what constitutes the, 5 852. complaint defined, § 853. when demurrer may be put in, § 854. answer, what to contain, § oo^. omission to set up counter-claim, effect of, § 856. when plaintiff may demur to answer, § 857. proceedings on demurrer, § 858. amendment of pleadings, when allowed, § 859. costs on allowance of amendments, when, § 859. time in which to demur or answer to amend- ed pleadings, § 8o0. Arrest and bail, order of arrest, and arrest of defendant § 861. affidavit and undertaking for order, § 862. defendant arrested, must be taken before jus- tice, § 8G3. officer to give notice to plaintiff of arrest, § 864. officer to detain defendant, § 865. See Arrest and Bail. Attachment, writ to issue upon affidavit. § 866. undertakinsr required, § 867. writ, substance of, § 868. undertaking may be taken by officer, § 868. provisions applicable to justice's attachments, §869. See Attachments. Claim and delivery, how enforced, § 870, See Claim and Delivery. Judgment by default, on failure of defendant to appear, § 871. on demurrer, § 872. 982 INDEX. JUSTICES OF THE PEACE— Continiied. Trial and postponements. when trial must commence, § 873. postponement on motion of court, § 874. postponement by consent of parties, § 875. postponement on application of party, § 876. conditions imposed for postponement, § 877. issues, defined, § 878. issues of law, defined, § 879. issue of fact, defined, § 880. issue of law, how tried, § 881. issue of fact, how tried, § 882. jurors for, § 230. how summoned, § 231. return of oflicer, § 232. proceedings in forming jury. § 250. manner of impaneling, § 251. jury, how waived, § 883. trial to proceed if either party fails to appear, § 884. challenges, peremptory and for cause, allow- ed, § 885. cause of challenge in justice's court in Hum- boldt, p. 860, Stat. inspection and copy of writing may be order- ed, §886. genuineness of signatures, when deemed ad- mitted, §887. Judgments other than by default. by confession, § 889. by confession, proceedings on, § 1135. of dismissal, without prejudice, § 890. upon verdict, when to be entered, § 891. on trial by coui-t, when to be entered, § 892. on arrest, what fact must be stated, § 893. sum in excess of jurisdiction may be remitted, §894. on offer of compromise before action, § 895. costs to be included in, § 896. abstract of, form of, § 897. abstract to be tiled and docketed, § 898. execution thereon may issue, when, § 899. not a lien on lands unless recorded, § 900. Appeals fron. to supreme court, § 964. INDEX. 983 JUSTICES OF THE PEACE— Continued, to superior court, §§ 974-980. Execution, may issue within five years, § 901. contents of, § 902. liow renewed, § 903. duty of officer receiving, § 904. supplementary proceedings on, § 905. act relative to executions in justices' court in Alameda county repealed, p. 861. Contempts in. justice may punish for, § 906. in immediate view of justice, how punished, §907. not in immediate view, warrant to issue, § 908. punishments for, extent of, § 909. conviction to be entered in the docket, § 910. Dockets of justices, what to contain, § 911. entries in, primary evidence of fact, § 912. index must be kept, § 913. must be delivered to successor by county clerk, §914. proceedings on vacancy of office, and before appointment, § 915. justice may issue process on docket of prede- cessor, § 910. successor of justice, who deemed, § 917. superior judge, when to designate, § 918. Jurisdiction of. cannot issue writ of review, § 1068. cannot issue mandate, § 1085. cannot issue prohibition, § 1103. extent of civil jurisdiction, §§112-114. jurisdiction, how restricted, § 114. civil jurisdiction of, § 112. concurrent jurisdiction of, § 113. civil jurisdiction restricted, § 114. criminal jurisdiction of, § 115. transfer of cases to superior courts, § 838. may issue subpoenas and final process, § 919. may take acknowledgments and affidavits, § 179. act conferrin.'i; jurisdiction on, r. 857. 984 INDEX. JUSTICES OF SUPREME COURT, qualifica- tions. § 156. iueligibility of, § 161. powers of, at chambers, § 165, disqiialitications of, § 170. not to practice law, § 171. not to have partners practicing law, § 172. powers of, out of court, § 176. JUSTIFICATION OF SURETIES, arrest and bail, §§ 493, 494. attachment. ' 555. claim and delivery, § 513. court commissioners may take, § 259. generally, § 1057. mode of, § 495. of sureties to undertaking, § 1057. of sureties, on claim and delivery, § 513. of sureties, on aiTest and bail, §§ 493, 495. in defense, to action of libel and slander, § 461. court commissioners mav take, § 259. liA BORERS, liens of, § 1188. See Liens, Enforcement of. LAND, defined, § ±7. LANDLORD AND TENANT, adverse posses- sion, § 326. may be joined as defendants, § 379. notice of proceedings to be given tenant, § 379. unlawful detainer, § 1161. LAW OF EVIDENCE, defined, § 1825. LAWS. See Statutes. are either written or unwritten, § 1825. written law defined, § 1896. constitution and statutes, § 1897. public and private statutes defined, § 1898. unwritten law defined, § 1899. books containing, admissible in evidence, § 1900. how authenticated, § 1901. recitals in statutes, how far evidence, § 1903. oral evidence of foreign laws, § 1902. foreign law ])resumed same as law of this state, § 1963. foreign country, how proved, §§ 1900-1902. binding on all tribunals, § 2103. INDEX. 985 LAWS— Continued. organic, what is, § 1897. questions of, for court, § 2102. sister state, of, how proved, §§ 1900-1902. statutes, what are, § 1897. unwritten, § 1899. written, what is, §§ 1896, 1897. written or unwritten, § 1895. LEASEHOLD, when subject to redemption. § 700. execution, sale on, of lease of less than two years, absolute. § 700. LEGAL CAPACITY, want of ground for de- murrer, § 430. LEGISLATURE, extension of time where attor- ney in attendance on legislature. § 1054. LEVY. See the various titles, as Attachment; Execution, etc. LIABILITY, confession of judgment for contin- gent, §1133. of otlicer arresting witness, § 20G8. officer, when not liable, § 2069. of olficer on execution sale, limit of, § 697. See Sheriff. LIBEL AND SLANDER, how stated in com- plaint, § 460. answer in actions for, § 461. what may be given in evidence, § 461. undertaking in action for, p. 861. plaintiff must file bond to cover costs, p. 861, Stat, additional costs allowed in, p. 861, Stat. LIBRARIES, of whom, exempt from execution, §690. LICENSE, of attorney to practice, § 277. ])enalty for practicing without, § 281. LIEN, assignment for benefit of creditors, wages, etc., §1204. definition of. § 1180. foreclosure of, § 726. judgment. §§ 669-674. mechanic's, action for debt may be concur- rently maintained, § 1197. mechanic's, action may be one for all, § 1195. Code Civ. Proc— 83. 986 INDEX. LIEN— Continued. mechanic's, actions, consolidating, § 1195. mechanic's, amount recoverable on, § 1193. mechanic's, appeal, § 1199. mechanic's, bond of contractor, § 1203. mechanic's bond, failure to file, effect of, § 1203. mechanic's, contractor abandoning work, § 1200. mechanic's, contractor's bond inures to bene- fit of laborers, § 1203. mechanic's, costs, § 1195. mechanic's, duration, ninety days, § 1190. mechanic's, exemption from execution, mate- rials, § 1196. mechanic's, filing, §§ 1187-1189. mechanic's, forfeiting lien by false notice, etc., § 1202. mechanic's, generally, §§ 118.3-1199. mechanic's, grading, etc., for, § 1184. mechanic's, highways, improvement on, § 1191. mechanic's, impaired only bv written consent, § 1201. mechanic's, incumbrances postponed to, § 1186. mechanic's land sub.iect to, § 1185. mechanic's, filing notice of completion of building and cessation of work, § 1187. mechanic's, materials, § 1183 n. mechanic's, materials exempt from execution, § 1196. mechanic's, new trials, § 1199. raechnnic's, notice by owner to avoid liability, § 1192. mechanic's, notice to owner of labor done. etc., § 1184. mechanic's, parties to action. § 1195. mechanic's, payment of contract price, § 1184. mechanic's, practice, rules of, § 1198. mechanic's, priority, §§ 1186, 1194. mechanic's, property subject to, §§ 1183-1185, 1192. mechanic's, recording, § 1187. mechanic's, separate parcels, claim on, § 1188. INDEX. 987 LIEN— Continned. mechanic's, service by publication, § 1191. mechanic's, statement of demand, § 1187. mechanic's, subcontractors, § 118G. ships, etc., §§ 813-827. wages, etc., attachment, § 1206. wages, etc., disputing claim, procedure, § 1207. wages, etc., estates of deceased persons, § 1205. wages, etc., execution, § 1206. wages, salaries, etc., §§ 1204-1206. LIFE ESTATE. See Estates for Life. disposition of, on owner's death, § 1723. setting- off in partition, § 770. LIMITATION, absence from state, § 351. account, mutual, open, current. § 344. acknowledgment in writing, § 360. "action," meaning of, in this portion of code, § 363. administrators, § 353. alien enemy, § 354, answer or ground of, § 458. appeal, reversal on, effect, § 355. assault, § 340. assessment, stock sold for, § 341. bail-bond in criminal action. § 340. banks, §348. battery, § 340. commencement of action, § 350. constable, against, §§339, 340. continues to run notwithstanding code. § 9. contract, parol, § 339. conversion, § 338. coroner, against, § 339. corporation, penalty or forfeiture, § 359. credits, mutual, § 344. criminals, §§ 328, 352. county against, § 342. curreut account, § 344. death, effect of, § 353. death, negligence or act causing, § 339. deceased person, claim against estate of, § 353. DO limitation to action for money deposited with banker, p. 874, Stat. deposits, § 348. )88 INDEX. LIMITATION— Continued. detinue, § 338. directors of corporation, penalty or forfeiture, §359. disability, §§ 328, 352. disability, more than one, § 358. disability must exist when right of action ac- crues. § 357. effect of statute, § 312. escape, § 340. execution, time for issuing, § 681. executors, § 353. false imprisonment, § 340. Hve years, § 336. foreign country, reciprocity clause, § 361. forfeiture, § 340. forfeiture, corporation, § 359. four years. § 337. fraud. § 338. generally, where not otherwise specified, § 343. guardian's bond, action on, § 1805. guardian, recovery of property sold bv, § 1806. infants. §§ 328, 352. injunction, effect, § 356. insanity, §§ 328, 352. insolvency proceedings, statute of limitations does not run pending, p. 852, § 62. instrument in writing, § 337. instrument not in writing, § 339. .iuda-ment, action on, § 336. liability created by statute, § 338. libel. §340. loan societies, § 348. lost certificates of deposit after they have been found, act authorizing suits on, p. 874, lunatics, §§ 328, 352. married women. §§ 328, 352. mesne profits. § 330. mistalve, §338. mob, damages by, § 340. mortgage, suit to redeem, §§ 346. 347. mutual account, § 344. negligence, causing death, § 339. new promise, § 360. INDEX. 989 LIMITATION— Continued, occupation, §§ 321-327. official, against, §§ 339-341. one year, § 340. open account, § 344, patent, effect of, § 310. patent, void, § 317. penalty, § 340. penalty, corporation, § 359. people, claim of, for real property, §§ 315, 317. personal actions, § 335. plea of, § 458. pleaded, if not, waived, § 434. presumption as to possession, § 321. prohibition by statute, injunction, etc., § 356. qui tam, § 340. real property, actions or defenses arising out of title to, § 319. real property, adverse possession, §§ 321, 322. real property, adverse possession, landlord and tenant, § 326. real property, adverse possession, under claim of title not written, §§ 324, 325. real property, constructive occupation, § 323. real property, death, effect of, § 327. real property, descent, right of possession not affected by, §327. real property, entry, § 320, real property, landlord and tenant, § 326. real property, possession, constructive, § 323. real property, possession, when presumed, § 321. real property, seisin within five years, § 318. reciprocity with foreign countries, § 361. relief not otherwise provided for, § 343. redeem, suit to, § 346. redemption, time of, § 702. replevin, §338. representatives, actions by and against, § 353. reversal on appeal, eft'ect, § 355. riot, damages by, § 340. savings banivs, § 348. seduction § 340. sheriff, against, §§ 330, 340. six months, §§ 34i, 342. 990 INDEX. LIMITATION— Continued, slander, §340. state, absence from, § 351. state, against, § 345. state, actions against, time to bring, p. 868, Stat, state, grantee of, §§ 316, 317. state, written instrument executed out of, § 339. statute, action on, § 340. statute, liability created by, § 338. stock sold for assessment, action to recover, §341. stocliholders, of corporation, § 359. supervisors, against, § 342. suspension of rights of action, § 346. tax collector, § 341. three years, §338. time in actions, not relating to real property, §335. trespass, §338. trover, § 338. trust companies, § 348. two years, § 339. vacancy in administration, effect of, § 1501. will, contesting probate, § 1327. written instrument, action on, § 337. LIS PENDENS, to be filed in real actions, § 409. to be filed in partition, § 755. See Notice. LOS ANGELES COUNTY, acts increasing num- ber of judges in, p. 804 et seq. LOST INSTRUMENTS, act authorizing suits on certificates of deposit after they are found, p. 874. lost papers, copy of, when may be filed, § 1045. lost will, proceedings in probate of, § 1338. See Will. LUNATIC, escheated estates, § 1272. guardian. See Guardian, limitations, in reference to. §§ 328, 352. summons, how served on, § 411. witness, cannot be, S 1880. MANDAMUS, alternative, §§ 1087, 1088. INDEX. 991 MAN DAISIUS— Continued. alternative, return of answer, § 1089. answer, § 1090. answer, demurrer to, § 1091. appeal in cases of, § 1064. costs, § 1095. damages, § 1095. defined, §1084. demurrer to answer, §§ 1090, 1091. directed to whom, § 1085. disobedience, penalty, § 1097. j^enerally, §§ 1085-1097. hearing, any time, may be at, § 1108. hearing, what may be inquired into, § 1090. hearing, where no answer, § 1094. issue, any time, may at, § 1108. issue, when to, § 1086. issues, from what courts, § 1085. jurisdiction of, §§ 51, 1085. jury trial, when, § 1090. new trial, §§ 1092, 1093, 1110. peremptory, §§ 1087, 1088. service of, § 1096. supreme court, writ out of, §§ 51, 54. trial, § 1091. verdict to be transmitted to court, § 1093. MAPS AND CHARTS, as evidence, § 1936. MAllINER, proceedings to enforce claims of, § 825. proof of claims of. § 826. See Boats. MARK, included in signature or subscription, § 17. MARRIAGE, abatement, § 385. administratrix, effect on authority of, § 1370. breach of promise, private sittings, § 125. executrix, § 1.3.52. limitations, affects how, §§328, 352. perpetuating evidence of, § 2084. no defense in actions for unlawful detainer, § 1164. MARRIED WOMAN, when may sue alone, § 370. may defend, in her own right, § 371. may become sole trnder, § 1811. as sole trader, responsibilities of, § 1820. 992 INDEX. MARRIED WOMAN— Continued. proceedings of, on application as sole trader, §§ 1812-1821. not to be executrix, unless named so in will, § 1352. escheated estates, § 1272. cannot be appointed administratrix, § 1370. not to be witness against husband, when, § 1881. See Sole Traders. MASCULINE, convertible with feminine and neuter, § 17. MATERIAL ALLEGATIONS defined. 8 4fi.q. only, need be proved, § 1867. evidence to correspond with, § 1868. MATERIAL OBJECTS one kind of evidence, § 1827. as evidence, admitted in discretion, § 1954. jury may be talien to view the premises, § 610. MATTER, in avoidance, deemed controverted, § 462. redundant, may be stridden out, § 453. MAYORS, act relievin.u' mayors of certain cities from acting as judge, p. 798. MECHANICS, property of, what exempt from ex- ecution, §690. liens of, §§ 1183-1199. See Liens. MEMORANDUM of costs, to be furnished, § 1033. of costs, on appeal, § 1034. MERGER, remedies not merged, § 32. METES AND BOUNDS, description by, § 455. MINER, property and implements, exempt from execution, § 690. MINING CLAIMS, customs, rules, and usages to govern, § 748. liens of mechanics upon, § 1183. how sold, in probate proceedings, § 1529. petition for sale, § 1530. order to show cause, § 1531. order of sale, § 1532. MINING CUSl^OMS, proof of, in actions con- cerning mining claims, § 748. INDEX. 993 MINISTERIAL OFFICERS, election, powers, and duties of. § 2G2. conduct of, controllcHl by law. § 128. See Clerk. MINOR. See Infant; Guardian and AYard. MINORITY, effect of, on limitation of actions, §§ 328, 352. MISCONDUCT of Jury, ground for new trial, § 657. MISDEMEANOR, jurisdiction of justices of tbe peace, § 115. MISJOINDER. See Parties; Complaint. of parties or causes, ground for demurrer, § 430. MISTAKE, relief from, may be had by amend- ment, § 473. in written agreement, evidence, § 1856. MITIGATION, may be alleged and proved in li- bel and slander, § 461. MOB. action for damages bv, § 340. MODIFICATION of award by court, when, § 1288. See Award; Judgment. MONEY. See Gold Coin. specitied kind of, in judgment, § 667. MONO COUNTY, act providing additional judge in, p. 806. MONTH, means calendar month, § 17. MORTGAGE, not deemed a conveyance, § 744. act relating to service of final process on cre- ation of new county, p. 864. See Foreclosure. MOTHER, administration by, § 1365. death of child, may sue for, § 376. guardianship by, § 1751. injury of child, may sue for, § 376. seduction, may sue for, § 375. MOTIONS AND ORDERS, generally, §§ 1033- 1007. motion, notice of, generally, § 1005. motion, notice of, when to be given, § 1005. motion, wliat it is, § 1003. motion, where made, § 1004. notices, service, etc., §§ 1010-1017. order for ])ayment of money, execution on, § 1007. 994 INDEX. MOTIONS AND OllDERS— Coutinned. order, service by teleijrapb, § 1017. order to show cause must be served, § 1005. order, what it is, § 1003. order, where may be made, § 1004. repeating? motion prohibited, §§ 182, 183. special proceedings, in, § 1064. transfer to another judge, § 1000. See Orders. MUNICIPAL CORPORATIONS. See City, venue where city a party, § 392. act relieving mayors of certain towns from acting as judge, p. 798. NAME, change of, §§ 1275-1279. change of, county clerk to make returns to secretary of state, § 1279. change of, county court's jurisdiction, § 1275. change of, petition for, § 127G. change of, petition for service, § 1277. change of, petition for hearing, § 1278. complaint must contain, § 426. fictitious, may be used, § 474. fictitious, true must be inserted when discov- ered, § 474. summons to contain, § 407. verdict, each juror's must be entered, § 628. conveyances by persons whose name changed. See Civil Code, Appendix NB EXEAT, abolisned, S 478. NEGATIVE ALLEGATIONS, when may be proved, § 1869. NEGLECT in pleadings, relief from, may be had by amendment, § 473. action for injury or death caused by, §§ 376, NEGLIGENCE, relief from, may be had by amendment. § 473. resulting in injury or death, who may sue for, §§ 376, 377. NEGOTIABLE INSTUU:\[ENTS, cross demands, in actions on, s 440. NEFTER, included in masculine, § 17. NEWLY DISCOVERED EVIDENCE, new trial for, §6:i7. INDEX. 995 NEW MATTEii, answer, may contain, §437. answer, in, deemed controverted, § 402. NEW PROMISE, limitation, effect on, §360. NEW TKIAL, amdavits, on motion, § 650. aijainst law, verdict, § 657. cliambers, motion may be heard at, §§ 166, 663. clianc-?, jury resortin.cr to, for, § 657. damaijes, excessive, § 657, dama.ues, insufficient, § 657. detimtion of, § 656. excepted, adverse party deemed to have, § 647. grounds for, JJ 657. insutlicient evidence, verdict on, § 657. irregularity, for, § 657. minutes of court, motion on, § 659. misconduct of jury, for, § 657. motion, court always open for, § 73. motion, court may .urant, of its own, § 661. motion, hearino-, § 660. motion, mandamus, in, § 1092. motion, notice of, § 659. motion, notice of, waiver of, § 659. motion, notice of, withdrawal of, § 659. motion, papers required, § 658. motion, prohibition in, § 1105. motion, record on, § 661. newly discovered evidence, for, § 657. NONJOINDER. See Parties. NONJUDICIAL DAYS. See Holidays. adjournment to, effect of, §§ 134, 135. holidays, what are, § 10. fallin.u- on Sunday, § 11. time, how computed, § 12. performance of acts on holidays, § 13. NONRESIDENT, place of trial, in actions against, § 395. service of summons, how made on, § 413. pleadin.irs of, by whom, and how verified, § 446. Avhen allowed to open judgment by default and answer, § 473. attachment, vrhen may issue against, § 538. proof required of plaintiff in action, on default of, §585. summons in partition suits, how served on, § 757. 996 INDEX. NON-RESIDENT— Continued. proceeds of sales of estates of, in partition, how invested, § 788. duties of clerii making- sucli investments, § 791. service of notices and papers on, bow made, § 1015. corporation, to furnish securitv for costs, § 1036. effect of failure to furnish such security, § 10.37. limitation, on time to claim escheated estate, § 1272. See Absence. NONSUIT, when judgment of, may be entered, §581. NOTAKY PUBLIC, seal or, exempt from execu- tion, § 690. may administer oath or affirmation, § 2093. may talve deposition, in this State, § 2031. NOTICE, after appearance in action, who entitled to, § 1014. effect of, on priority of liens, § 1186. for inspection of boolvs and documents, § 1000. how construed wiien written, § 1865. insufficiency of, no ground for dismissal on ap- peal. § 954. must be in writing, § 1010. without titl', when valid, § 1046. not required, to vacate order made out of court, §937. of motion, at what time to be given. § 1005. Service of. how and on whom made, § 1010. manner of making. § 1011. by mall, when made, § 1012. by deposit m postoffice. § 1013. when, need not be made, § 1014. on attorney, when to be made, § 1015. on nonresident, how made. § 1015. service by telegraph, § 1017. In actions. of abstract, provided in partition, § 799. of application for injunction, when required, § 528. of injunction, to be given to corporation, § 531. of motion to vacate injunction, § 532. INDEX. 997 NOTICE— Con tinned. of lis pendens, to be tiled in real actions, § 409. to be served on lien-holders in partition, § 762. to tenant, on unlawfnl detainer, § llGl. to tenant, at will or by sutt'erance, § llGl. of motion, for survey of lands, § 742. of security, for costs required of nonresidents, § 1037. of aiTest of defendant in justices' courts, § 864. of change of attorney, in actions, § 285. to produce written instrument in evidence, § 1938 of filing award, § 1286. on return of jury for instructions, § 614. of sale under execution, how given, § 692. of claim to contribution, on execution, § 709. of motion for new trial, to be filed and served, §659. of appeal, what to state, and when to be serv- ed, §940. of appeal, in justices' and police courts, § 974. In special proceedings. of application for mandate, § 1088. of application for writ of review, § 1069. of application for discharge from imprison- ment, § 1144. of application for discharge, how served, § 1145. of hearing petition for probate, § 1303. of probate of foreign will, § 1323. of application for letters of administration, ^^5 1373. to creditors, to present claims, § 1490. of application as sole trader, iJ 1812. of taking deposition out of State, § 2024. of taking deposition in State, § 2031. NUISA.XCE, defined, actions for, § 731. generally, § 731. jurisdiction, district court, §§ 76, 731. jurisdiction, supreme court, § 52. NUMERALS, mnv be used, § 186. NUNCUPATIVE WILLS, proceedings in probate of, §§1344-1346. See Wills. Code Civ. Proc— 81. 99S INDEX. OATH, form of, §§ 2095, 2096. form may be varied, how, § 2095. form of, in discretion of court, § 2096. includes affirmation and declaration, § 17. affirmation, §§ 2093-2097. affirmation, lorm of, § 2097. affirmation, or oath, necessary, § 1846. may be administered by courts of justice, §128. may be administered by judicial officers, § 177. by court commissioners, § 259. judicial and other officers, § 2093. arbitrators may administer, § 1284, in general, who may administer, § 2093. how administered, § 2094. of atorney and counselor, § 278. of jury, form of, § 604. of executors and administrators, § 1387. of prisoner, confined on civil process, form of, § 1148. of official reporter, § 272. how administered, § 2094. administered by whom, §§ 128, 177, 259, 2093. administered, how, § 2094. administrator, of, § 1387. affirmation, equivalent to, § 2097. arbitrators may administer, § 1284. attorney, of, § 278. executors, of, § 1387. OBJECTIONS, waived if not taken by demurrer or answer, § 434. inpractice, when taken by demurrer or answer, §433. when not taken, deemed waived, § 434. to appointment of referee, how tried, § 642. to granting letters of administration, when filed, §1351. may be taken to dissolution of corporation, § 1231. OBLIGATION., arises from contract or operation of law, § 26. defined. §26. OCCUPANT, of real property, in forcible entry and detainer, § 1160. See Limitation of Actions. INDEX. 999 OFFER TO COMPROMISE, admits nothing, § 2078. generally, §998. proceedings on, § 997. is not an admission that anything is due, § 2078. in justices' courts, § 895. OFFjlOE, abolished by the code, § 7. tenure of office preserved, § 6. usui-pation of, proceedings as to, §§ 809, 810. vacancy in office of judge does not affect pro- ceedings, § 184. vacancy in office, not to affect proceedings, §184. vacancy in office of supreme court justice, § 42. vacancy in office of judge of superior court, §69. vacancy in offico of justice of peace, § 111. See Public Officers; Usurpation of Office. OFFICERS, majority may act, § 15. ministerial, §§ 128, 262. judicial, affidavits, etc.. taking, § 179. judicial, contempt, power in cases of, §§ 178, 1209. judicial, controlling power of courts over, § 128. "judicial, depositions, taking, § 2021. judicial, exempt from juries, § 200. judicial, generally, § 156. judicial, powers, etc.. of, § 176. of court of impeachment, § 38. ministerial, elections and terms, § 262. actions for usurpation by, § 803. ministerial, elections, etc., where provided, § 262. judicial, incidental powers of, §§ 176-179. OFFICIAL DOCUMENTS, how proved, § 1918. See Public Records. OLOGItAPHIC WILL, how proved, § 1309. OPINION, of supreme court, to be in writing, § 49. ORAL EXAMINATION, defined, § 2005. See Examination of Witnesses. 1000 INDEX. ORDER. See Motions; Order of Arrest, deflnition, § 1U03. definition, in special proceedings, § 1064. where made, § 1004. transfer of, to show cause, § 1006. may be enforced, § 177. for payment of money, how enforced, § 1007. second application for, refused, § 182. how reviewed, § 936. made out of court, may he vacated, § 937. duty of supreme clerli, on appeal from, § 958. in superior courts, what appealable, § 963. may be served by telegraph, § 1017. for new trial, in supreme court, costs on, § 1027. copy of, to be filed in eminent domain, § 1253. copy of, to form part of judgment roll, § 670. judicial, effect of, § 1909. In actions, relief from inadvertence or mistake, § 473. relief from neglect or surprise, § 473. to show cause in injunction, § 530. for investment of funds in hands of receiver, §569. for sale of property attached, § 548. to deposit money in hands of trustees, § 572. to deposit money in treasury. § 573. enforcement of order of deposit, § 574. discharging sick juror, § 615. granting or refusing new trial, deemed except- ' ed to,"^ § 647. disobedience of. in supplementarv proceedings, § 721. for survey of lands in real actions, § 742. for surve3\ what to contain, § 743. of sale in foreclosure, § 728. aranting or refusing new trial, appealable, § 939. dissolving attachment, effect of appeal from, §946. of superior court, for transmission of appeal papers, § 977. for inspection of documents, § 1000. dismissing action for want of new security, § 1037. INDEX. 1001 ORDER— Continued. In special proceedings, requiring debtor to appear and answer, § 714. for examination of debtor of debtor. § 717. for application of property of such a one, § 719. for trial of issue in mandate, what to state, § 1090. of discharge of person imprisoned on civil pro- cess, § 1149. committing for contempt, § 1222. on application for dissolution of corporation, § 1230. final, for condemnation of land, when made, § 1253. in relation to escheated estates. § 1269. changing name ot person, § 1278. on submission to arbitration, § 1283. of new hearing by arbitration, § 1287. ' to custodian to produce will, § 1302. to show cause why probate should not be re- voked. § 1328. of right to administration, precedence, § 1365. for probate sales, §§ 1516-1576. See Motions. ORDER OF ARREST, how obtained, § 481. what required to obtain, § 482. in justices' court, when made, § 861. See Arrest and Bail. ORDER OF PROCEEDINGS, on trial of action, §607. powers and duties of courts. § 128. courts may make rules, § 129. powers of .iucl2:es at chambers, §§ 165, 166. ORIGINAL EVIDENCE, defined, § 1829. ORIGINAL JURISDICTION, of supreme court, §51. of superior court. § 76. PAPERS, filing and service of, §^ 1010-1017. lost papers, how supplied, § 1045. what papers valid, § 1046. to be furnished by appellant, on appeal, § 950. copies of, to be certified, § 953, what may be taken l)y jury, on retiring, § 612. See Notice. PARTIAL EVIDENCE, defined, § 1834. 1002 INDEX. PAPwTIALITY, of judge, ground for change of venue, § 397. PARTICULARS, obtaining bill of, §454. PARTIES, abatement by death, etc., § 385. addiup", §§ 389, 473. administrator, action by on bond of former ex- ecutor, etc., may sue in his own name alone, § 1586. administrator may sue witliout beneficiary. §369. appeal, adverse party on, who is, § 938. assignment of chose in action, etc., §§ 368, 385. association, suing, § 388. banliruptcy, § 384. beneficially interested, to sue, § 367. beneficiary need not be joined, when, § 369. bills of exchange, parties may be sued togeth- er, §383. child, injury or death of, § 376. common interest, one may sue for all, § 382. common source, holding under, may join, § 381. coparceners, §§ 381, 384. death of, § 385. death by negligence, § 377. death of child, §376. defendants, all persons interested may be, §§ 379, 382. defendants, substitution of, § 386. defendants. See Defendants. designation of, § 308. different, suing in one action, § 383. disability, § 385. ejectment, §§ 380, 381. eminent domain, § 1246. estopped, who are, §§ 1908-1910. executor, etc., action by, for injury or death, § 377. executor may sue without beneficiary, § 369. executor, only those to whom letters issued need be joined. § 1587. forcible enti-v, etc., § 1164. husband and wife, §§ 370, 371. infants, §§ 372. 373, 1722. injury of child, § 376. interest, in, when to be joined, §§ 380, 382. interest, real party in, to sue, § 367. INDEX. 1003 rARTIES— Continued. intervention, § 387. joint debtors, proceedings against parties not served after ludgment, §§ 989-994. joint tenants, §§ 381, 384. landlord may be made defendant, § 379. marriage, § 384. married woman, §§370, 371. raeclianies' liens, etc., § 1196. misjoinder of, demurrer for, § 430. names of, in complaint, § 420. names of, in summons, § 407. negligence causing injury or death, §§ 376, 377. nonjoinder of demurrer for, § 430. numerous parties, one or more may sue or de- fend for all, § 382. partition, §§752, 754, 761. plaintiffs, all persons interested may be, §§ 378, 382. possession, joining persons in with persons out of, as defendants, §380. promissory note, parties may be sued together, §383. quieting title, joinder, § 381. redeem, suit to, § 346. refusal to loin as plaintiff, § 382. seduction, §§ 374, 375. separate property, § 370. severally liable, parties on written instrument in one action, § 383. several owners joining, § 381. special proceedings in, § 1063. statute, person authorized by, may sue with- out joining beneficiai-y, § 369. stril^ing out, § 473. substitution of defendant, § 386. sureties liable on separate instruments may be sued in one action, § 383. tenants in common, joint tenants, coparceners, owners in severalty joining as plaintiffs, §§ 381, 384. trustee may sue without beneficiary, § 369. unlinown, mav be described by fictitious names, R474. usurpation of oflice or franchise, § 803. venue where city or county a party, § 394. 1004 INDEX. PARTITION, abstract of title, and expense there- of, §§ 799, 800. allowance for expenditures for common bene- fit, §798. answer, § 759. complaint, §§ 753, 754. contingent interests, § 781. costs, §§ 796, 798. costs of previous litigation, § 798. conveyances, § 785. conveyances, recording, § 787. disbursements, interest on, § 801. expenses, apportioning, § 768. expenses incurred for common benefit, § 798. generally, §§ 752-801. guardian, consent by, §§ 795, 1772. incumbered property, § 771. infant's shares, §§793, 1772. Intervention, § 387. investments by clerk, § 791. judgment, § 766 judgment, enforced how, § 686. lien on undivided interest, § 769. lien-holder, marshaling properties, § 772. lien-holder, purchaser, § 786. lien-holder, recorded rights, §§ 754, 761, 762. life or years, estate for. how set out, § 770. life or years, tenants' compensation, §§ 778, 779. lis pendens must be filed, § 755. lunatic's shares, §§ 794, 1772. order, for, §§763, 764, 770-795. partial, § 760. parties, §§367, 389, 752-754. purchasers, not referees or guardians, § 783. referee, §§761, 762. referee, report of, § 765. referee, report of, judgment thereon, § 766. referee, single, § 797. rights of all parties may be determined, § 759. roads, § 764. sale, §§ 763, 764. sale, confirmation, § 785. sale, credit, on security, § 777. sale, lots, §782. INDEX. 1005 PARTITIOX— Coiitinuod. sale, proceeds, inoiimbored property. §§ 771- 774. sale, public, to be, § 77."), sale, referee's report of, § 784. sale, terms of, court to direct, § 770. sale, terms of. to be published, § 782. securities, § 700. summons, § 756. summons, service by publication, § 757. tenant, for years less than ten not affected, §767. tenant, unlcnown, §§ 780. 788, 789. town site, § 763. unequal compensation. § 792. I'ARTNER, administratrix cannot be, §1365. sued by firm name, § 388. rij?hts in estate of deceased. § 1585. insolvency of firm. See Insolvency. I^ENAT/PY. See Contempt: Forfeiture; Impris- onment, attachment for not producing- will, § 1302. disobeying mandate, § 1097. failing to produce will, § 1298. fines, actions for, in police court, § 932. fines, for contempts. § 1218. fines, juror not appearing. § 238. fines, on state officers. § 1007. fines, usurpation of office. § 809. practicing as attorn ev without a license, § 281. PENDENCY OF ACTION, when action deemed pending, § 1049. notice of, to be filed in real actions, § 409. as a ground for demun-er to subsequent suit, § 430. PENDING, action when deemed. § 1049. PEOPLE, execution to be in name of, § 681. do not give security, § 529. state, or state officer, does not give security. § 1058. PERFORMANCE, of conditions precedent, how averred, § 457. time of, of act, may be extended, § 10.54. 1006 INDEX. PERPETIIATTNG TESTIMONY, mode of, §§ 2083-2087. deposition, when may be produced, § 2088. effect of deposition, § 2089. PERSON, defined, wliat it includes, § 17. PERSONAL INJURY, who may sue for, §§374- 377. PERSONAL PROPERTY, defined, § 17. how attached, § 542, when may be sold under attachment, § 550. order for sale of, § 548. trial of claim of third person to, § 549. PESTILENCE, ground for removal of court, § 142. PETITION, for change of name, what must spec- ify, § 1276. must be published four weeks. § 1277, for sole trader, what to contain, § 1813. petitions in probate proceedings. §§ 1371, 1397. petitions for sales of property in probate, §§ 1518, 1530 1537. See Wills; Probate of Wills; Executors and Ad- ministrators. PETIT LARCENY, jurisdiction in justices' courts, § 135. PHONOGRAPHIC REPORTERS, appointment, § 269. attendance, personal required, § 273. compensation, § 271. duties, § 269. evidence, transcript of notes prima facie, § 270. none, clerk to take down testimony, § 1051. oath, § 274. report, prima facie evidence, § 270. qualifications, testing, § 272. PHRASES, how construed, § 16. PHYSICIAN, not subject to jury duty, § 200. what propertv of, exempt from execution, § 690. when disqualified as a witness, § 1881. when must testifv, § 1882. PLACE OF HOLDING COURTS, when may be changed, § 142, a PI »t ■.•! ranee of pin oe a ppointed compulsory, § 143. when judge may order rooms, etc., § 144. INDEX. 1007 PLACE OF TRIAL, affidavits as to prejudice of judg-j, § 170. change of, defendants must demand, on ap- pearing:, witli attldavit, § 39G. change of, exception deemed talven, when, § 647. change of, fees, §399. change of, generally, § 397. change of, jurisdiction, § 399. change of, real estate, docketing and record- ing judgment, § 400. change of, transmission of papers, § 399. change of, what court to, § 398. counties, actions against or between, § 394. county, any, unless change demanded, § 396. defendant's residence, generally, § 395. depart from state, where defendant about to, § 395. foreclosure, local, § 392. forfeiture, action for local, § 393. judges, when disqualified, § 170. local, when, §§ 392, 393. officer, or person aiding him, action for act done by vu'tue of oflBce, § 393. partition, local, §392. penalty, action for, local, § 393. probate proceedings, transfer of, §§ 397, 1431- 1433. real property, injuries to local, § 392. where city or county a party, § 392. where injunction prayed, § 392. real property, mandamus for sheriff's deed not local, § 392 n. real property, recovery of, etc., local. § 392. reside, generally where defendants, § 395. residence out of state or unknown, § 395. witnesses, preponderance of, § 397. wrong county, action brought in, § 397. PLEADINGS. See Allegations; Answers; Com- plaint; Demurrers; Defenses; Verification, account, § 454. allegations, material, §§ 462, 463. 1008 INDEX. PLEADINGS— Continued. allegations, not denied, admitted, § 462. allowed, what, § 422. amendment, etc., §§ 128, 432, 472, 473. amendment, material variance, how provided for, § 469. amendment, immaterial, how, § 470. amendment what not a variance, § 471. amendments of course, § 472. amendment by the court, enlarging time, etc., §473. amendment suing by fictitious name, § 474. amendment, errors and defects, when disre- garded, § 475. amendment, forms of, in justices' courts, §§ 851-860. amendment, forms of, in police courts, § 961. amendment, when heading defective, § 1046. j amendment, lost, how supplied, § 1045. i amendment. See Amendments. answer. See "Answer," § 437. board, determination of, § 456. conditions precedent, performance of, § 457. complaint, amended answer to, § 432. complaint. See Complaint. construction to be liberal, § 452. counter-claim. See Counter-claim. cross-complaint. See Cross-complaint. defects disregarded, § 475. definition of,"§ 420. demurrer. See Demurrer, §§ 430, 443. determination of court or board, § 456. facts, ultimate, not probative, not conclusions of law to be pleaded, § 426. fictitious names, 5 474. filing. § 465. forms of, § 421. forms of, justices' courts, §§ 851-860. forms of. police courts, § 961. heading defective, § 1046. irrelevant matter, striking out, § 453. items, need not be pleaded, § 454. joint debtors, after judgment, proceedings, § 003. INDEX. 1009 PLEADINGS— Continued. judgment, how pleaded, § 456. jnd.umeiit roll, part of, § 070. libel and slander, §§ 4G(), 461. limitations of, statute, bow pleaded, § 458. lost, bow supplied, § 1045. material allegations not controverted, admit- ted, §462. name, fictitious, § 474. objections to, wben waived, § 434. particulars, § 454. real property, conditions precedent, convey- ance, § 457. real property, description, § 455. redundant matter, striking out, § 453. separately stated, causes of action must be, § 427. separately stated, defenses must be, § 441. service, § 465. sham, stril^ing out, § 453. signature to. § 446. slander and libel, §§ 460, 461. statute, private, how pleaded, § 4.59. striking out, as sham, irrelevant or redundant, §453. supplemental, § 464. variance, §§ 469-471. verification, §§ 446-449. written instruments, inspection refused, § 449. written instruments, setting forth, §§ 447-449. I*LUKAL. includes singular, S 17. POLICE COURTS, actions in, §§ 929-933. appeals from may be taken, § 77. establishment of, § 121. to have seal, § 147. jurors, how summcued in, § 250. manner of impaneling, § 251. act transferring business and records to after new constitution, p. 865. Proceedings in civil actions in. how commenced, § 929. pleadings in, §§ 930-931. summons must issue, when, § 930. defendant may plead orally or in writing, 5 931. Code Civ. Proc— 85. 1010 INDEX. POLICE COURTS— Contiuued. trial by jiuTj wheu defendant entitled to, § 932. proceedings to be conducted as in justices' courts, §933. appeals from judgments of, § 974. POLICE JUDGE, may take aclinowledgments and affidavits, § 179. See Judicial Officers. POSSESSION OF LAND, when presumed, §323. occupation deemed, under legal title, § 323. occupation when deemed adverse, § 324. what adverse possession, under written instru- ment, § 325. actual occupation under claim of title deemed adverse, §324. adverse possession under unwritten claim of title, §325. possession of tenant, when deemed possession of landlord, § 326. limitation of adverse possession of tenant, § 327. right of, not affected by descent cast, § 328. certain disabilities excluded from time to com- mence actions, § 328. bond on appeal from order directing alias writ of possession. § 1210. POSTPONEMENT. See Adjournment; Contin- uance. of civil trial, § 595. costs may be imposed. § 1029. forcible entry, etc.. § 1173. mandamus on, § 1090. trial, §§ 595, 596. trial, justice's court. §§ 874-876. trial, commission, return of, § 2027. POWER OF COURT, amendment, § 128. contempt, §§ 1209-1222. oaths, administration of, § 128. obedience, compelling, § 128. officers, etc., controlling, § 128. order enforcing, § 128. process controlling, § 128. supreme court on appeal. § 53. < INDEX. 1011 POWER OF COrRT— Continued, witnesses, coercing;, § 128. of supreme court justices at chambers, § 165. of judges of superior courts, § 166. PRACTICE. See Trial. PRESENT includes future, § 17. PRESUMPTIONS, deliued, §1959. binding on jury, § 1961.. conclusive, § 1962. conclusive, estoppel by, "Standing by," § 1962. conclusive, generally. § 1962. conclusive, guilty intent, when, § 1962. conclusive judgment, §§ 1908, 1962. conclusive, legitimacy, § 1962. conclusive, malicious intent, when, § 1962. conclusive, order of court, §§ 1908, 1962. conclusive, recital, § 1962. conclusive, tenant cannot denv landlord's title, § 1962. disputable, §§1961, 1963. disputable, acquiescence, § 1963. disputable, books, contents of, correct, § 1963. disputable, burial ground, § 1963. disputable, consequence of act intended, § 1963. disputable, continuance of thing, § 1963. disputable, consideration from writing, § 1963. disputable, course of business, ordinary, § 1963. disputable, course of nature, or habits of life, ordinary, § 1963. presumption, disputable, date, correct, § 1963. presumption, disputable, death of person not heard from for seven years. § 1963. presumption, disputable, death priority of, § 1963. presumption, disputable, delivery imports ownership of deliveree, § 1963. presumption, disputable, fairness of private transactions, § 1963. disputable, foreign court, etc., acting within jurisdiction, § i963. disputable, generally, § 1963. 1012 INDEX. PRESUMPTIONS— Continued. disputable, lii.!;lier evidence is adverse, if low- er produced, s 1963. disputable, identity, § 1963. disputable, indorsement of note, etc., where made. § 1963. disputable, innocence, § 1963. disputable issue, all matters in, passed upon, § 1963. disputable, law has been obeyed, § 1963. disputable, legitimacy. § 1963. disputable, letters mailed, § 1963. disputable, marriage, § 1963. disputable, monev paid to a person was due to him, § 1963. disputable, non-conclusive judicial record cor- rect, § 1963. disputable, obligation delivered up paid, § 1963. disputable, official duty duly performed, § 1963. disputable, partnership, § 1963. disputable, possession imports ownership, § 1963. disputable, public officer de facto, appoint- ment of, § 1963. disputable, rent, last receipt for, § 1963. disputable, short-hand notes, § 270. disputable, suppressed evidence adverse, § 1963. disputable, trustee, bare, has conveyed to ces- tui que trust, § 1963. disputable, unlawful intent, § 1963. disputable, writing thirty years old, § 1963. disputable, jury must find according to, § 1961. survivorship, presumptions as to, § 1963. no presumption that error injurious on appeal, §475. PRIEST, when may be excused from testifying, § 1881. when must testify, § 1882. FRIMARY EVIDENCE, defined, §§ 1829, 1833. as to third parties, § 1851. entries on public records are, § 1920. entries in justices' docket are, § 912. INDEX. 1013 PRIMAIIY FA'IDENCE— Continued. books, maps, and charts, when, § 1936, certitieate of purchase or location of lands is, § 1925. entry made by officer, or board of officers, when, § 1926. handwritini? and entries of deceased, § 1946, PRINCIPAL AND AGENT. See Agent. PRINTING, included in writing, § 17. PRIVATE PROPERTY, Avhat may be taken for public use. S§ 1240, 1241. See Condemnation of Land. PRIVATE SITTINGS of court in certain cases, §125. PRIVATE STATUTE, defined, § 1898. how pleaded, § 459. foreign law-books admissible in evidence, § 1900. recitals in, how far evidence. § 1903. PRIVATE WRITINGS, See Writings, classification of, § 1929. distinction between sealed and unsealed, abol- ished, § 1932. execution of instrument defined, § 1933. compromise of debt without seal, good, § 1934. subscribing witness defined, § 1935. books, maps, etc., how far evidence, § 1936. original writing to be produced or accounted for. § 1937. notice to be given to produce, § 1938. writings called for and inspected may be withheld, § 1939. execution of, how proved. § 1940, when other than subscribing witness may testify, § 1941, when evidence of execution not necessarv, § 1942, evidence of handwriting, to prove, § 1943, of handwriting allowed by comparison, § 1944, comparisons with, what may be made, § 1945. entries of decedents as evidence, § 1946, copies of entries. § 1947, how acknowledged and certified, § 1948, public records not to be carried about. § 1950, 1014 INDEX. PRIVATE WRITINGS— Continued. what may be read in evidence, § 1951. public records of, how proved, § 1919. PRIVILEGED COMMUNICATIONS, § 1881. PROBATE COURTS. See Courts. PROBATE PROCEEDINGS. wills. See Wills. Jurisdiction and proceedings in general. in superior court, § 76. when exercised over estates, § 1294. when decided by first application, § 1295. court may determine all questions as to ad- vancements, § 1686. orders and decrees to be entered in minutes, § 1704. how often publication to be made, § 1705. recorded decree or order to impart notice, § 1706. citation, how directed, and what to contain, § 1707. when issued without order of judge, § 1708. citation, how served, § 1709. citation, when a substitute for personal no- tice, § 1710. to be served five days before return, § 1711. published description of real estate, § 1712. practice and proceedings in, § 1713. new trials and appeals in, § 1714. appeal to be taken within sixty days, § 1715. from what proceedings an appeal lies, § 969. effect of judgment in, § 1008. issues joined in, how tried and disposed of, § 171G. court to trv cause when no jury demanded, § 1717. new trial, how and when moved for, § 1717. court to appoint attorney for minor or absent heirs, etc., when. § 1718. compensation for attorney of absentee, § 1718. decree relating to homestead and effect there- of, §1719. costs, by whom paid in certain cases, § 1720. court may remove executor, etc., for contempt, § 1721. service of process on guardian, § 1722. INDEX. 1015 PROBATE PROCEEDINGS— Continued. Jurisdiction, etc. — court may order investment of moneys of es- tate, §1792. probate proceedings to be given preference on appeal, § 57. Disqualification of judge and transfer of admin- istration. when judge not to act, § 1430. judge being disqualified, proceedings to be transferred, wliere, § 1431. transfer not to change right to administer, § 1432. retransfer, how made, § 1432. when proceedings to be returned to original court, § 1433. power of, at chambers, §§ 167, 1305. may hold court in other county, § 161. Production and proof of wills. custodian of will to deliver same, to whom, § 129. penalty for neglect to do so, § 1298. who may petition for probate of will, § 1299. contents of petition, § 1300. when executor forfeits rights to letters, § 1301. will to accompany petition, § 1302. presentation of wills to be prayed for and en- forced, § 1302. notice of petition, how given, § 1303. heirs and named executors, to be notified, § 1304. petition mav be presented in chambers, § 1305. hearing and proof of will, when, § 1306. who may appear and contest, § 1307. probate, when no contest, § 1.308. olographic wills, probate of. § 1309. wills, proved in other States, to be recorded, § 1322. proceedings on production of foreign will, § 1323. hearing proofs of probate of foreign will, § 1324. proof of lost or destroyed will, § 1338. must have been in existence at time of death, § 1339. 1016 INDEX. PROBATE PROCEEDINGS— Continued. Production and proof of wills— to be certified, recorded, and letters granted, § 1340. court to restrain Injurious acts of, pending proceedings. § 1341. probate of nuncupative wills, how, § 1344. additional requirements, § 134.''). probate of will to bear seal of court, § 153. evidence required to prove Avill, § VMM). evidence required to prove will revoked, § 1970. Contesting probate, contestant to file, grounds of contest, § 1312. how jury obtained, and trial had, § 1313. verdict— judgment — appeal, § 1314. witness, wlio, and how may, § 1315. proof of handwriting, § 1315. testimony reduced to writing, § 1316. if proved, certificate to be attached, § 1317. will and proof to be filed and recorded, § 1318. contests of nuncupative wills, § 1346. Contesting- will after probate, to be within a year, § 1327. citation to be issued, § 1328. hearing on proof of service, § 1329. petitions tried by jury or court, § 1330. judgment, what, § 1330. on revocation, powers of executors cease, §1331. costs and expenses, by whom paid, § 1332. probate, when conclusive, § 1333. time given to infants and others, § 1333. PROCEEDINGS, conduct of, power of judicial officers over, § 177. to be in English language, § 185. powers of court over conduct of. § 128. courts of record may make rules to regulate, § 129. when rules take effect, § 130. on non-attendance of judge at court, § 139. not affected by vacancy in office, § 184. to be in Enirlish language. § 185. ablnwiations used in, § 186. numbers may be expressed by figures, § 186. in case juror becomes sick, § 615. INDEX. 1017 rKOCEEDlNGS— CoDtiniied. what treatment or, is a contempt, § 1209. See Special Proceedings. I'KOCESS, defined. § 17. of superior courts, § 78. to be in English language, § 185. abbreviations used in. § 186. means to carry ottt .iurisdiction, § 187. relief from inadvertence or mistake, § 473. in justices' cotirts. mnv issue to auA' part of county. §§ 94. 106. may issue from court at chambers. §§ 165, 166. blanks in must be filled by justice of peace. § 920. service. See Service. what treatment of is a contempt. § 1209. act relating to execution of final process on creation of new county, p. 864. act validating? process issued by courts before provided with seals, p. 864. rROFESSIOXAI. IMPLEMENTS, exempt from execution, § 690. rROHIBTTION. writ of. defined, §1102. supreme court may issue. § 51. 1 superior courts may issue. § 76. writ of. the counterpart of mandate. § 1102. where and when issued. § 1103. form of, ntay be alternative or peremptory, § 1104. provisions respecting issuance of, § 1105. when returnnble nnd hoard, § 1108. rules of practice. § 1109. appeals and new trials. § 1110. PPvOOF. defined, § 1824. of service of summons. Iioaa- made, § 415. PROPERTY, term dofined. §17. PUBLIC Ar):MIXISTPATOT^S. rnnk of in order of persons entitle'l to administer, § 1365. estates which may be administered by, § 1726. to obtain letters, Avhen and how— bond and oath of, § 1727. duty of person in whose house stranger dies. §1728. must return inventorv and administer estates. § 1729. 1018 INDEX. PUBLIC ADMINISTRATORS— Continued. when to deliver up estate, § 1730. civil officers to give notice of waste, § 1731. suits for property of decedents, § 1732. order to examine party charged with embez- zling estate, § 1733. punishment for disobedience of order, § 1734. order on, to account, § 1735. every six months to return condition of estate, § 1736. duty as to estate, moneys, escheats, etc., § 1737. not to be interested in payment on account of ^ estate, § 1738. when to settle with county cleric, § 1739. • how unclaimed estates disposed of, § 1739. * proceedings against, for failure to pay over \ moneys, § 1740. failing to account is guiltv of misdemeanor, § 1740. fees of officers, when and by whom paid, § 1741. to administer onths. § 1742. probate, proceedings applicable to, § 1743. See Estates of Deceased Persons: Executors and Admim'strntors: Special Administrators, PUBLICATION. See Estates of Deceased Per- sons: Solo Trailers: Summons: Notice; WiUs. PUBLIC BUILDINGS, what exempt from execu- tion, § G90. right of eminent domnin, exercised in behalf of. § ] 2.3S. PUBLIC CALAMITY, ground for removal of court. § 142. PUBLIC OFFENSES, cognizable in justices' courts. § 11.5. PUBLIC OFFICER, place of trial, in actions against, §393. may be arrested, for embezzlement, § 479. when excused from giving testimony, § 1881. J when must testify. § 1882 penalty for disobedience of writ, § 1097. must give copy of public writing on demand, § 1893. See Office. < INDEX. 1019 PUBLIC RECORDS. See Public Writings; Rec- ords; Writings, judicial record defined, § 1904. liow authenticated, § 1905. record of foreign country, how authenticated, § 1900. oral evidence of a foreign record, § 1907. effect of .iudgment upon rights, § 1908. effect of other judicial orders, § 1909. where parties to, are deemed to be the same, § 1910. what deemed adjudged in a judgment, § 1911. sureties bound bv, § 1912, of foreificn state, effect of, § 1913. of couii- of admiralty, § 1914. effect of foreign judgment, § 1915. manner of impeaching, § 1916. the jurisdiction necessary on a judgment, § 1917. of private writings as evidence, § 1919. entries in official boolvs, primary evidence, §§ 1920, 1926. justices' judgment in other states, how proved, §§ 1921, 1922. copy of, to bear seal of court, § 153. provisions as to States to apply to territories, § 1924. See Evidence; Public Writings. PUBLIC USES. See Condemnation of Land. PUBLIC WRITING, defined, § 188S. rights of citizens to inspect, § 1892. public officers, bound to give copies, § 1893. four kinds of public writings, § 1894. laws written, or unwritten, § 1895. written laws, defined, § 1896. constitution and statutes, § 1897. public and private statutes, defined, § 1898. unwritten laws, defined, § 1899. books containing same, presumed correct, ■'^ 1900. public seal, authenticates law or document, § 1901. other evidence of laws of other States, § 1902. recitals in statute, how far evidence, § 1903. judicial record, defined, § 1904. 1020 5NDEX. PUBLIC WRITING— Continued. record, how authenticated, as evidence, § 1005. record of foreiiin country, how autlienticated, § 190(1 oral evidence of foreign record, § 1907. effect of .iuflsnient upon riglits in various cases, § 1908. effect of other judicial orders, when conclu- sive, § 1909. where parties are deemed to be the same, § 1910. what deemed adjudged in a judgment. § 1911. where sureties bound, principal is also, § 1912. manner of proving official documents, § 1918. official certiticate, contents of, § 1923. provisions as to States to apply to Territories, § 1924. certificate of purchase, primary evidence of ownership, § 1925. entries made by officers or boards, primary evidence, § 1920. See Public Records; "Writings. QUALIFICATIONS, of justices of supreme court, § 15G. of judges of superior courts, § 157. of sureties, § 1056. QUESTIONS, of law are addressed to the court, § 2102. of fact, are addressed to the jury, § 2101. provisions applicable, referee or other officer, § 2103. QUIETING TITLE, alienation pending suit, §747. costs on disclaimer, § 739. defendants, joinder of. § 379. disclaimer, § 739. executor, suit mav be brought against, § 1582. generally, land, §§ 738-740. generally, money, etc., § 1050. improvements, setoff for, § 741. injunction, § 520. inspection, survey, etc.. of property, §§ 742, 743. money, etc., to, § 1050. INDEX. 1021 QUIETING TITLE— Continued. parties to action, §§ 372, 379-381, 738. summons may be served by publication, when, §749. survey, order for, §§ 742, 743. title, plaintiff's terminating, during suit, § 740. QUO WARRANTO, appeals to supreme court in case of, § 1064. superior court have .iurisdiction of, § 76. usurpation of office, §§ 803-810. REAL PROPERTY, means lands, tenements, and hereditaments. § 17. limitation, of actions for, §§ 315-328. place of trial, in actions for, § 392. entry upon and possession of, §§ 320-324, intervention in actions for, how effected, § 387. recovery of, claims for, may be united, § 427. description of, in pleadings, § 455. how attached. § 542. execution against, what to recite, § 682. return of execution against, how made. § 683. judgments against, how enforced. § 684. execution on, how and to whom issued, § 687. how seized on execution, § 688. foreclosure. § 726. partition, §§ 752-801. sale of, in partition, § 763. sale of, in foreclosure, when to cease, § 728. service may be had by publication in suits concerning, § 749. See Redemption. IlECALLING WITNESS, permissible under what circumstances, § 2050. RECEIVER, appointment, §§ 304, 564. attorney for party cannot be, § 566. corporation acting as, powers and duties, § 1348. disqualified, who is. § 566. escheated estates, in, § 1270. foreclosure, in suit for, § 564, interested person cannot be, § 566. oath of, § 567. party cannot be, § 566. powers of, § 568. Code Civ. Proc— 86. 1022 INDEX. IIECET VER— Continued. undertaking for damages, § 566. undertaking of, § 567. RECORD. See Public Records. copy, requires seal of court to authenticate it. § 158. evidence, as. See Evidence. removed, may be only by order, § 1950. transfer of, from old courts to new, §§ 55, 79. RECOVER 1 OF PROPERTY, claims for, may be united, § 427. REDEEM. Se3 Foreclosure. limitations as to suit to, §§ 346, 347. REDEMPTIO.N, who are redefnptioners, § 701. when property may be redeemed from execu- tion sale, § 702. when judgment debtor or other redemptioner may redeem, § 703. notice of redemption, § 703. to whom payments to be made, § 704. kind of money to be paid, § 704. what redemptioner must do, § 705. court may restrain waste pending time for re- demption, § 706. rents and profits, § 707. limitation of action to redeem, § 346. of action to redeem part of mortgaged prem- ises, §347. REFERENCE AND REFEREES, on trial of charge against attorney, § 298. may be ordered for taking account, § 636. when may be ordered on agreement of parties, § 638. ordered on motion, in what cases, § 639. number of referees — qualifications, etc., § 640. either party may obiect, § 641. grounds of objections, § 641. objections, how disposed of, § 642. referees to report within ten days, § 643, finding of referees, effect of, § 644. exceptions to findings of, § 259. exception to, and review of findings, § 645. referees may be appointed in partition, §§ 761, 763. trial before, in partition, § 762. INDEX. 1023 REFETIENCE AND REFEREES— Continued. referees to divide property, rules to govern, §764. must report their proceedings, § 765. report may be set aside or affirmed. § 766. expenses of referees in partition, § 768. may talve security for purcliase money in i)ar- tition. § 777. cannot be purchasers in action, § 783. must report sale of property. § 784. all must meet, but two mav act, § 1053. REGISTER OP ACTIONS, clerk to keep, § 1052. REHEARING, in supreme court, §43. RELATIONS. See Affinity: Consanguinity. RELIEF, what granted in judgment, § 580. REMEDIES, judicial, defined. § 20. how divided, § 21. not merged, § 32. See Actions; Civil Actions. REMITTITUR, of judsjment of supreme court, §56. duty of clerk, §958. REMOVAL, of action. See Place of Trial. RENEWING APPLICATION, for refused order, §182. RENTS AND PROFITS, pending redemption, § 707. setoff, improvements in ejectment, § 741. REPLEVIN. See Claim and Delivery. generally, §§ 473, 509-520, 667. REPOKTEKS (pliouographic). See Phonograph- ic Reporters. generally, §§ 2G8-274. appointment of. § 269. qualifications of, § 270. attention to duties, § 271. oath of, § 272. reports prima facie correct, § 273. fees of, § 274. RES GESTAE, generally, §1850. RESIDENCES, of superior judges, § 158. of justices of the peace, § 159. RESTITUTION OF PROPERTY on reversal. §957. 1024 INDEX. RETURN, of execution, when to be made, § 683. of gold dust, how made, § 688. of summons, § 415. See Execution: Summons. REVOCATION, of probate of will, §§ 1.327-1333. See Wills. REA^IEW. WRIT OF. See Appeals. appeal, § 1110. application for, § 1069. chambers, powers at, §§ 1()5. 166. costs. § 1082. defined. § 1067. form of, §§ 1070, 1071. hearing. § 1075. issue of. § 1068. judgment, § 1065. judgment roll, § 1077. "n'urisdiction, superior court, § 76. .iurisdiction, supreme court, § 51. new trial, § 1110. practice, rules of, § 1109. return, defective, perfecting, § 1075. return, generally, § 1064. review, extent of, § 1074. service of, § 1073. stay of proceedings. § 1072. when mav issue and be heard, § 1108. RIGHTS AND REMEDIES, when not merged, §32. code not to affect, § 8. RIOT, limitation, action for damages caused by, § 340. RULES, of court of record. § 129. when to talce effect, § 1.30. of iustices' courts in cities and counties, § 95. SACRAMENTO COUNTY, act providing for ad- ditional iudge in, p. 807. SALARY. See Liens. SALES. See Execution: Foreclosure; Partition. sales of property of decedents. See Estates of Deceased Persons; Executors and Adminis- trators. of real property, in foreclosure, when to cease, § 728. may be ordered in partition, § 763. INDEX. 1025 SALES— Continued. proceeds of, how applied, § 771. sales of by referees, must be at auction, § 775. terms of, must be directed by court, § 776. terms of, to be made Ivuown at time, § 782. who may not purchase at, § 78.3. conveyance, when to be executed, § 785. conveyance, etfect of recordin.c;, § 787. See Execution. SAN BEKXARDINO COUNTY, act providing for additional .iudge. in, p. 807. SAN DIPXtU county, acts increasing and low- ering number of .judges in, pp. 808, 809. SAN FRANCISCO, act concerning service of summons in. p. 8.j8. SAN LUIS OBISPO, acts increasing and lower- ing number of judsres in, p. 809 et seq. SANTA CLAR.^ COUNTY, act mcreasing num- ber of .judges in, p. 811. SATISFACTION OF JUDG^rENT, by whom may be acknowledged, § 179. how entered, §§ 28.S, 675. SATISFACTORY EVIDENCE, defined, § 1835. SCIRE FACIAS, abolished, §802. SEAL, defined, §§14, 19.30. what courts to have, § 147. of supreme court. § 148. of superior courts, § 149. of police courts of cities and counties, § 150. how provided, § 151. of court commissioner. § 259. to be kept by clerk, § 152. to what proceedings to be aflixed, § 15.3. to be afiixed to execution, § 682. certain writs and process valid without, § 1.58. how telegraphed. § 1017. private seal, how may be made, § 1931. public, how made. § 1931. of what seals courts take judicial notice, § 1875. public seal authenticates law or document. § 1901. record, how authenticated, § 1905. authentication of justices' record or docKet. § 1922. 1026 INDEX. SEAL — Continued. to be aflfixed to official certificate, § 1923. private, scroll may be used for, § 1931. effect of, on private writings, § 1932. seal makes no difference in writings, §§ 1932, 1934. act validating writs, process and certificates issued by superior courts before provided with seals, p. 864. SECONDARY EVIDENCE, defined, § 1830. SECRETARIES of supreme court, appointment of, § 265. terms and salaries of, § 266. SECULAR ACTS, not to be done on holidays. § 13. SEDUCTION, guardian, action by, § 375. parent, action by, § 375. private sittings, § 125. woman, unToarried, may sue for, § 374. SERVICE. See Attachment; Executions; No- tices; Summons. appearance equivalent to, § 416. association, on, §§ 388, 411. attorney entitled to be served for party, § 1014. complaint, copy, §§ 410, 527. corporation, on, § 411. mail, by, §§ 1012, 1013. mandate, writ of. § 1096. non-resident, § 1015. prohibition, writ of. § 1096. proof of. § 415. publication by. §§ 412. 413, 415. review, writ of, § 1073. several defen<1ants, some served. §414. summons, of, §§ 410-415. summons, of, gives .iurisdiction, § 416. telegraph, by, § 1017. of complaint and affidavit in injunction, § 527. publication, when allowed, § 412. notice and paners, how served, § 1011. time for appearance, when regulated by dis- tance, § 1013. upon whom made, after appearance, § 1014. I INDEX. 1027 SESSIONS, of supreme court, § 47. of superior courts, § 73. SETOFF, iietion l)y Jissij;nee iii insolvency, setoff ill. p. 8::53, S '27>, subd. 1. mutual debts and credits where debtor insol- vent, p. 843, § 47. debtor cannot offset claims purchased after petition filed, p. 843, § 47. SHAKES, in homestead association exempt from execution, § GUO. hoTv seized on execution, § 688. in corporation, subject to attachment, § 541. how attached, § 542. SHERIFF, ex officio officer of justices' courts, §87. to summon jurors. § 225. summonin.s: to complete panel, § 227. action against for official misconduct, § 1055. to provide court-room, § 144. proof of service of summons, how made by, § 415. liability of, for escape of party arrested, § 501. liability, for sellins^ on execution without no- tice. § 693. liability, extent of, on a resale on execution, § 697. to Iveep party arrested on justices' process till dischnrsed. § 865. to notify plaintiff of arrest, § 864. to detain person arrested for contempt, till discharged, § 1214. liability of. for arrest of witness, §§ 2068, 2069. compensation of sheriff acting as assignee in insolvencv, p. 820, § 6. SHERIFF'S SALE. See Execution. SHIPS, etc., actions against, §§813-827. answer, who may, § 821. appearance, who mav enter. § 821. attachment, §§ 817-824. complaint, § 815. execution and sale, § 824. execution sale, notice of, § 827. jurisdiction, justices' court. § 114. liens against, § 813. owners, actions to be against, if known, § 814. owners, unknown, § 814. 1028 INDEX. SHIPS— Continued. summons, service, etc., § 816. wages, claims for, enforcing, §§ 825, 826. wages, claims for, preferred, § 825. See Boats. SHORT-HAND REPORTERS. See Phonograph- ic Reporters. generally, §§ 269-274. SIGNATURE, when deemed admitted in justices' courts, §887. to pleadings, ^ 446. on written instrument, genuineness when deemed admitted, §§ 447, 448. when not deemed admitted, § 449. includes mark, § 17. SINGULAR includes plural, § 17. SITTINGS, public and private, §§ 124, 125. SLANDER. See Libel and Slander. pleading, §§ 460, 461. additional, costs allowed in, p. 861, Stat. plaintiff must file bond to cover costs, p. 861, Stat. SOLE TRADERS, who may become, § 1811. notice, how given, § 1812. petition, what to contain, § 1813. community property allowed, § 1814. who may oppose petition, and how, § 1815. trial and hearing on application, § 1816. decree, what to be, § 1817. oath, form of, . § 1818. order, copy of, to be recorded, § 1818. rights and liabilities of, § 1819. must maintain children, § 1820. husband not liable for debts of, § 1821. SPECIAL ADMINISTRATORS, when appointed, § 1411. special letters may be issued in vacation, § 1412. preference, to whom given, § 141.3. to take oath and give bonds, § 1414. duties of, § 1415. when powers of. to cease, § 1416. to render account, § 1417. See Executors and Administrators. INDEX. 1029 SPECIAL PROCEEDINGS defined, § 23. .iurisdiction in supreme court, § 52. jurisdiction in superior courts, § 76. new trial, and appeal, § 1110, costs allowed in. § 1022. who is plaintiff in, § IOCS, who is defendant in, § 1063. motion in, and orders, § 1064. judgment in, § 1064. practice in, § 1109. for removal or suspension of attorney, § 289. for condemnation of land, § 1243. for condemnation, new proceedings, § 1250. relative to escheated estates, §§ 1269-1272. to recover escheated estate, § 1272. in contest of elections, formality of, § 1117. In justices' courts, provisions applicable, § 925. on change of venue in justices' courts, § 922. against public administrator for failure to pay over monev, § 1740. SPECIFIC PERFORMANCE, of contracts of de-- cedent, § 1597, et seq. STATE, defined, § 17. costs in action, how paid by, § 1038. not required to give bonds in action, § 1058. act authorizing Robt. C. Ball to sue state, p. 870. act authorizing Coulterville and Yosemite Turnpike Company to sue state, p. 871. act authorizing suits against the state, p. 868. actions against state, procedure in, p. 868, Stat, actions against, time to bring, p. 868. Stat, judgments in action against, p. 868. Stat, duty on governor and controller where judg- ment rendered against state, p. 868, Stat. STATE:MENT of cause of action, how made, § 427. on motion for a new trial, how made, § 661. effect of. § 661. of points in judge's charge to be furnished, § 608. on appeal to superior court, § 975. when not necessary, §976. of findings, how made, § 661. i030 INDEX. STATE OFFICER, serving in official capacity, need not give bonds, § 1058. STATUTE OF FRAUDS. See Evidence. STATUTE OF LIMITATION. See Limitation. how pleaded, § 458. STATUTE, authentication of, of other state, § 1901. books containing admissible in evidence. § 1900. construction, §§ 1858, 1859, 1866. definition of, § 1898. existing construction of provisions similar to, in code, § 5. foreign, as evidence, §§ 1900, 1901. inconsistent with code, every, repealed, § 18. private, how pleaded, § 459. public and private, defined. § 1898. recitals in, evidence of what, § 1903. repealing, etc.. § 18. two interpretations, capable of, § 1866. which of two constructions to prevail. § 1866. STATUTORY PROHIBITION, effect of, on limi- tations of actions. § 356. STAY OF PROCEEDINGS on appeal from mon- ey .iudgnient. § 942. on appeal in claim and delivery, §943. on .nidgment directing conveyance, § 944. in real actions. § 945. on appeal, effect of, § 946. on .iudgment. for perishable property. § 949. on filing undertaking on appeal, § 979. pending review. §1071. See Appeal. STENOGRAPHERS. See Short-hand Reporters. STREET. See Highwavs. SUB^NHSSION to arbitration, §§ 1281-1290. controversv without nction. §§ 11.38-1140. how submitted, § 1138. .iudement thereon, § 11.39. .iudirment may be enforced or appealed from, § 1140. SUBPOENA for witnesses, defined, § 1985. may be issued by justice of the peace, §§ 919, 920. how issued, § 1986. INDEX. 1031 SUBPOENA- Continued, bow served, § 1987. how served on concealed witness, § 1988. •when witness compelled to attend, § 1989. person present compelled to testify, § 1990. punishment for disobedience, § 1991. forfeiture therefor, § 1992. vrarrant may issue for witness, when, § 1993. warrant, contents of, § 1994. if witness is a prisoner, how brought by, § 1995. who may move for warrant, § 1996. imprisoned witness, how examined, § 1997. to witness to appear before commissioner, § 2036. fee for service of by person other than sheriff, p. 790, Stat. See Evidence. SUBSCRIBING WITNESS defined, §1935. .to be called to prove instrument, § 1940. proceedings on his denial of knowledge, § 1941. See Evidence: Wills. SUBSCRIPTION, includes mark, § 17. SUBSTANTIAL JUSTICE to govern construction of pleading, §§ 452, 475. SUBSTITUTION OF PARTIES, on death or dis- ability, § 385. of party defendant, § 386. SUCCESSIVE ACTIONS, when may be prosecut- ed, §1047. SUCCESSORS, what justices successors of oth- ers, §98. what .iustices of peace are, § 107. of justice, who deemed, § 917. in case of dispute, who to designate, § 918. SUMMARY PROCEEDINGS to discharge from arrest. § 1144. to obtain possession of real propertv, § 1161. SUMMONS to be in English language, *§ 185. how commenced, § 405. within w^hat time may issue, § 406. issuance of, how made, § 406. how issued, directed, and what to contain, § 407. 1032 INDEX. SUMMONS— Continued. alias summons, when may issue, § 408. how served and returned, § 410. how served against particular persons, § 411. publication of, when may be made, § 412. service by publication in partition, § 757. by publication in action on liens, § 1191. manner of publication and appointment of at- torney, § 418. publication, service by where defendant claims interest in realty, § 749. publication, service may be had by in what actions, § 749. fee for service of by person other than sheriff, p. 790, Stat. appearance, effect of where summons not is- sued or served, § 41C». dismissal for failure to issue and serve, § 581. service of, by telegraph, § 1017. proceedings, where a part only of several de- fendants are served, S 414. proof of service of summons, what consti- tutes, §415. when jurisdiction acquired, § 416. on owners, etc., of vessels, § 816. provisions of Code as to, not applicable to contempts, § 1016. when to issue in police courts, § 930. service not personal, effect of, § 473. In justices' courts. to whom directed, and what to contain, § 844. must issue within one year, § 840. time for appearance before justice, § 845. alias, when may issue, §§ 846, 847. service of, in justices' court, where made, § 848. by whom served in justices' courts, S 849. hour given for appearance, ^ 850. issuance of, how waived, § 841. In particular actions and proceedings. issuance of, to juror, in general, §§ 225-238. to whom directed in partition, § 756. service on partition, § 757. in actions against steamers and vessels, § 816.- in forci]>le entry and detainer, what to state, § 1166. INDEX. 1033 SUMMONS— Coiitiuued. service of, in forcible entry and detainer. § in proceedings relating to escheated estates, § 1269. . ^ In condemnation of land, what to contain, § 1245. in condemnation of land, how issued and serv- ed, § 1245. to interpreter, how served, § 1884. in proceedings against joint debtors. when to issue, after judgment. § 989. what to contain in proceedings against joint debtor, §990. bv what accompanied. § 991. &! UN DAYS, powers of courts on. § 134. SUPERIOR COURT. See Courts; Judges; Ju- dicial Officers. judges and elections, § 65. of two or more judges, § 66. of city and county of San Francisco. § 67. terms" of judges. § 68. computation of years of office, § 69. vacancies. § 70. held by judges of other counties. §71. judges" pro tempore of. § 72. sessions of. § 7.S. adjournments. § 74. jurisdiction of two kinds. § 75. original jurisdiction. § 76. appellate jurisdiction. § 77. process. § 78. transfer of books, papers, and actions. § 79. powers of previous courts conferred on. § 79. to have seal. § 147. held at request of governor. § 160. jurors for. § 204. reporters for. § 269. appeals from. § 9.S9. appeals to, § 963. powers on appeal. § 980. jurisdiction in forcible entry and detainer. § 1163. to appoint guardians, § 1747. Code Civ. Proc— 87. 1034 INDEX. SUPERIOR COURT— Continued. act increasing and decreasing number of su- perior judges in various counties. See Courts. SUPERIOR .TUDGE, elections of, §65. term of office of, § 68. vacancies, 5 70. judge pro tempore, § 72. poAvers conferred on, § 79. qualifications of, § 157. residence of, § 158. acts increasing or lessening number of judges in various counties. See Courts. SUPERVISORS, to select list of jurors for supe- rior courts, § 204. how to select, § 205. SUPPLEMENTAL PLEADINGS, filing and ser- vice of, §464. must be filed and served, § 465. SUPPLEMENTARY PROCEEDINGS, debtor re- quired to answer, § 714. proceedings to compel appearance, § 715. debtor may be arrested, § 715. debtor of debtor may pay creditor, § 716. debtor of debtor may be examined, § 717. witnesses required to testify, § 718. property of person owing debtor, bow applied, §719. proceedings on claim of third person, § 720. disobedience of parties, how punished. § 721. provisions to apply to justices' courts, § 905. SUPREME CLERK, duty of, on judgment or or- der on appeal. § 958. SUPREME COURT. See Courts; Justices of the Supreme Court. elections and term of office, § 40. computation of years of office, § 41. vacancies, § 42. departments, § 43. apportionment of business, § 44. in bank, § 45. absence or disability of chief justice, §46. sessions of, § 47. adjournments, § 48. decisions in writing, § 49. jurisdiction of two kinds, § 50. INDEX. 1035 SUPREME COURT— Continued. original .iurisdiction. § 51. appellate jurisdiction, § 52. powers in appealed cases, § 53. concurrence necessary to transact business, § 54. transfer of books, papers, and actions, § 55. transfer of records and business to new court, §79. remittitur in transferred cases, § 56. to have seal, § 147. officers appointed by, § 265. secretaries and bailiffs of, § 265. to hold office at pleasure of, § 266. justices, elections and terms of, § 40. justices, qualifications of, § 356. justices, ineli.cribility of. § 161. justices, powers of", at chambers, § 165. justices, disqualifications, § 170. justices, not to practice law, § 171. justices, nor have partner practicin.s:, § 172. justices, powers out of court, § 176. act transferrinc: business from old court to, p. 865. commission for. acts creatine, p. 790. SURETIES. See Bonds: Undertaking. estoppel, bound by, § 1912. indemnity on notice by sheriff of action acrainst him, effect, § 1055. liability inter se, settling- by action, § 1050. qualifications of, § 1057. subrogation on payment of judgment, §§ 709, 1059. injunction bond, conclusiveness of judgment against sureties on, § 532. corporation acting as surety, p. 788, Stat. corporation formed to act as surety, examina- tion into by insurance commissioner, § 1056. corporations, right to act as sole surety on bond. §§1056, 1057. corporations acting as surety, deficiency of as- sets, § 1056. SURPRISE a ground for motion for new trial, § 657. relief from, by amendment, § 473. 1036 INDEX. SURVEY, who may survey land taken for pub- lie use, § 1242. STHIVIVAL OP ACTION, §§ 1582-1522. proceedings on the production of foreign will, § 1323. hearing proof of probate of foreign will, § 1324. Contesting will after probate, probate mav be contested within one year, § 1327. citation to be issued to parties interested, § 1328. hearing on proof of service, § 1329. petitions for revolce of probate, how tried, § 1330. what judgment to be rendered, § 1330. on revocation of, power of executor, etc., ceases, § 1331. costs and expenses, by whom paid, § 1332. probate, when conclusive, § 1.3.33. one year after removnl of disability, given to infants and others. § 1.333. Probate of lost or destroyed wills, proof of lost or destroved will to be taken, § 1338. must have been in existence at the time of death, § 1339. to be recorded and letters granted, § 1340. court to restrain injuries during, § 1341. Probate of nuncujiative wills, when and how admitted to probate, § 1.344. additional requirements in probate of, § 134.5. contest and appointment to conform to provi- sions as to otlier wills, § iruf). production and proof of wills. See Wills. WITNESSES defined. § 1878. all persons capable of ])erception and commu- nication may be, § 1879. persons who cannot testify, § 1880. 1048 INDEX. WITNESSES— Continued. persons in certain relations to parties, prohib- ited, § 1881. when an interpreter, to be sworn, § 1881. judge or juror may be a witness, § 1883. "when privilesred persons must testify. § 1882. may be compelled to attend, §§ 128, 1989, 20G4. testimony of witness in state, when taken, § 2021. testimony of witness out of state. § 2024. how to procure witness upon commission, § 2086. how. if no commission. § 2037. attendance, how enforced in contestinc: elec- tions, § 1120. protected from arrest when attending, etc.. § 2067. court to discharge from arrest, § 2070. manner of application for order, § 2084. Drivileged, § 1881. attorney, § 1881. clergyman, § 1881. husband, § 1881. physician. § 1881. •priest, § 1881. public ofhcer, § 1881. surgeon. § 1881. ■ wife, § 1881. incompetent, child under ten, § 1880. incompetent, parties against estate of deceas- ed, §1880. incompetent, unsound mind, persons of, § 1880. incompetent, who is, § 1880. subscribing, who is. § 1935. present in court, person may be made, § 1989. prisoner. §§ 1995-1997. eundo, morando. et redeundo, § 2067. eyery one (except, etc.) may be, §§ 1879, 1880. child, §1880. competent, who is, §§ 1879. 1880. experts, § 1870. judge or juror may be, § 1883. act authorizing appointment of Italian inter- preter, p. 856. INDEX. 1049 WITNESSES— Continued. Means of production of. subpoena for Avitness, defined, § 1985. subpoena, liow issued, § 1986. to be issued in contested election cases, § 1120. how served, § 1987. may be served by teleg:rapli, § 1020. how served on concealed witness, § 1988. attendance under subpoena, i5 1991. residence out of county, or thirty miles off, need not attend, § 1989. subpoenaed, must attend, § 2064. subpoenaed, warrant for, §§ 1993, 1994. disobedience, §§ 1209, 1210, 1991. 1292, 2065. when witness is compelled to attend, § 1989. person present compelled to testify, § 1990. disobedience, how punished. § 1991. forfeiture for disobedience, § 1992. when warrant may issue to bring witness. § 1993. contents of warrant, to produce, § 1994. if a prisoner, how brought, § 1995. on whose motion, § 1996. imprisoned witness, how examined, § 1997. subpoena to appear before commissioner. § 2036. concealed witness, § 1988. fee for seiwice of subpoena by person other than sheriff, p. 790, Stat. Eights and duties of witnesses, witness, bound to attend when subpaniaed, § 2064. bound to answer questions, § 2065. right of, to protection of court, § 2066. protected from arrest when attendinu'. § 2067. arrest so made, void, liability for, § 2068. affidavit to be made by witness arrested, § 2069. to be discharged from arrest, § 2070. how to be sworn, § 1846. rights, as to form of swearing, § 2095. may either take oath or affirmation, § 2097. exclusion of witness, from court-room, § 2043. Testimony of— who may be examined in supple mentary proceedings, § 718. 1050 INDEX. WITNESSES— Coutinued.. may be examined on trial of challenge, § 603. evidence of, wliat required, § 19(39. testimony of, in state, § 2021. testimony of, out of state, § 2024. how to procure upon commission, § 2024. how, if no commission, § 2037. discharged from arrest, § 2070. perpetuation of testimony of, § 2084. how many required to prove contested will, § 1308. how many for uncontested will, § 1315. to what can testify, § 1845. presumptions, concerning, § 1847. credibility, facts tending t6 show, may be proved, § 1870. deceased, previous testimony may be given in evidence, § 1870. recalling, § 2050. re-examination of, § 2050. examination of. See Examination of AYitnesses. refreshing memory, § 2047. refusal to answer, § 1991. subscribing witness, denying, or forgetting ex- ecution, it may be proved by other evidence, §§1940, 1941. witness, swear or affirm, must, § 1846. witness, treason, more than one necessary, § 1968. witness, jurisdiction out of, previous testimony may be given in evidence, § 1870, witness, knowledge, must testify from per- sonal, § 1845. witness, good character of, etc., § 2053. witness, impeaching credit of, §§ 2049, 2051, 2052. witness, one sufficient, except, etc., § 1844. witness, perjury, more than one, §§ 1844, 1968. witness, character of, § 2053. presumed to spealv truth, §§ 1847, 2051, 2052. witness, interpreter, § 1884. act authorizing appointment of Italian inter- preter, p. 856. INDEX. 1051 WORDS, used in singular, convertible with plu- ral, §17. in masculine, convertible with feminine, § 17. to be construed by context, § 16. giving joint authority, how construed, § 15. plural iucludes siuiiuhir and singular plural in insolvent law, p. 853, § 66. debtor includes partnerships and corporations in insolvent act, p. 853, § 66. incapable, § 1767. incompetent, § 1767. mentally incompetent, § 1767. WORK, not to be done on holidays, § 13. WRIT. See Attachment; Execution; Summons, etc. definition of, § 17. issuance generally, §§ 51, 76. issuing at. chambers, §§165, 166. seal required, § 152. service, by telegraph, § 1017. certain, declared valid without seal, § 158. what writ abolished, § 802. of lieview, mandate and prohibition, § 1108. may be served by telegraph, § 1017. act validating writs issued by courts before provided with seals, p. 864. WRITINGS. See Private Writings; Public Rec- ords; Public Writings; Written lustrumeuls. are one kind of evidence, § 1827. original writings are original evidence, § 1829. art' of two kinds, public and private, § 1887. public, defined, § 1888. private, defined, § 1889. execution of, setting forth, etc., §§446-449. includes printing, § 17. inspection of, § 1000. iui^pection of, may be demanded, § 1000. inspection refused, effect of refusal, § 449. inspection of writing shown to witness, § 2054. shown to witness, may be inspected by ad- verse party, § 2054. who may inspect and copy public writings, § 1892. duty of custodian of, § 1893. copy of, how certified, § 1923. 1052 INDEX. WRITINGS— Continued. copies of, are secondary evidence, § 1830. agreement, when deemed tlie whole, § 1856. construetiou of, description, conveyances of real property, § 2077. construe, court must, § 2102. construction of language relates to place where used, § 1857. general rule of construction, § 1858. intention of parties to be pursued, § 1859. circumstances to be considered, § 1860. terms, construed by general acceptation, §§ 1861, 1865. written words control those printed in blank form, § 1862. skilled persons may testify to decipher charac- ters, § 1863. of two constructions, which preferred, § 1864. of two interpretations, which preferred, § 1866. ^^, RITTEN INSTRUMENT, in complaint, how controverted, § 447. in answer, how controverted, § 448. alcalde's books and grants, § 1919. . affidavit, defined, § 2003. aflidavit, when may be used, §§ 2009-2011. affidavit, who may take, §§ 2012-2015. acknowledgment proves, §§ 1948-1951. alteration in, § 1982. alteration of writing, producer must explain, § 1982. art, books of, § 1936. bibles, family, etc., § 1870. bill of exchange, indorsement where presumed made, § 196.3. board, entrv bv, prima facie, §§ 1920, 1926. books, evidence, §§ 1900, 1902, 1936. books, oflBcial, entries in, § 1920. books, presumption as to contents of, § 1963. books, public, entries in, § 1920. books. See Books. called for and inspected need not be put in evi- dence, § 1939. comparison, § 1944. contents, how proved, § 1855. contents of, when admissible, § 1870. INDEX. 1053 WKITTP:X instrument— Continued. contract reduced to writing:, no other evidence can be given of it, §§ 1856-1860. custody of adverse party in, § 1938. decedent, entries by, § 1946. decipliering, experts, § 1863. deeds, construction of, § 1859 n. destroyed, proving- contents of, § 1855. entries copied from one booli in another, when deemed originals, § 1947. executed, how, § 1933. execution, admission of, § 1942. execution, how proved, §§ 1940-1945. foreign language, experts may testify as to meaning, § 1863. general acceptation, terms to be construed by, § 1861. handwriting, how proved, §§ 1943, 1944. kinds of, public and private, § 1887, lex loci, § 1857. lost or destroyed, proving contents of, § 1855. original must be produced, when, § 1937. part in evidence all may be proved, § 1854. printed partly, § 1862. private, public records of, § 1894. private, public records of, proved how, § 1919. private, sealed and unsealed, are, § 1929. private, whole agreement deemed, § 1856. proved by witness, must be read before his testimonv closed, § 2055. public, §§ 1888, 1892-1926. public, books, etc., § 1920. public, certificate, what it must state, § 1923. public, certified copies of must be supplied, § 1893. seal makes no difference, § 1932. shown to witness, may be inspected by oppo- nent, § 2055. thirty years old, §§ 1945, 1963. two interpretations, capable of, § 1866. undecipherable, experts may testify as to meaning, § 1863. public, classes of judicial records, § 1894. public, classes of, laws, § 1894. public, classes of, official documents, § 1894. 1054 INDEX. WIMTTEN INSTRUMENT— Continued. public, classes of, private writings, § 1894. public, classes of, public records of, § 1894. public, inspection of by citizens, § 1892. public, laws, statutes, etc., §§ 1895-1903. public, official documents, proof of, § 1918. public, state or county of any, certified copy admissible, § 1901. surrounding circumstances admissible, § 1860. See Writings. YOSEMITE AND COTJLTEllVILLE TI^RN- PIKE COMPANY, act authorizing suit by against state, p. 871. YUBA COUNTY, act providing separate judge for, p. 811. > )^ /. <7 B 000 020 103 8 f