LIBRARY 
 
 OP THK 
 
 University of California. 
 
 < i I KT ( > F" 
 
 %eceived t/H^C^ . i8g<5. 
 Accessions No. CtOZ&tf. "chn* No. 8.^.5 
 
 nil 
 
c2^e. 
 
 ^J^^^L- 
 
 tsOCa^y 
 
 General Outlines of Practice 
 
 UNDER THE 
 
 CILIFaiH ■ IF mil PqOCEDURE 
 
 SYLLABI Of IiEGTURES 
 
 AT THE 
 
 Leland ^aqfocyt DqiVB^iti). 
 
 > pi 1 
 
 
 JOSEPH HUTCHINSON 
 
 OF THE SAN FRANCISCO BAR. 
 
 MAY, 1895. 
 
GO 7^7^ f 
 
it & 
 
 MAI** 
 
 Joseph Hutchinson . Esq., 
 
 San Francisco, Cal.: 
 My Dear Sir : 
 
 As day by day you have spoken to us, and have added 
 outline to outline of your lectures, I have more and more 
 felt the debt we owe you. And in thanking you for what 
 you have done may I sa5' that we appreciate not only the 
 result of your work, but also that your lectures were pre- 
 pared on short notice, while 5-ou were engaged in jour 
 professional duties, and as a gift by a lawyer to those 
 who are studying law. 
 
 You tell me you propose to gather your Outlines into a 
 volume and give a copy to each of the law students. 
 May I ask that this note be inserted in it, and inay I say 
 that it in part expresses our common sense of obligation 
 to you. 
 
 Believe me, with respect, 
 
 Very truly yours, 
 
 NATHAN ABBOTT. 
 
 Law Department Leland Stanford Jr. University, May 17, 189$. 
 
 [TJHIVERSIT 
 
 ath^ 
 
An Alumnus of the University of California, the author 
 presents this volume of syllabi to the law students of the 
 Iceland Stanford Jr. University, as a token of the hearty 
 sympathy existing between the two great Universities of 
 the Pacific Coast, and in recognition of the inspiration 
 and impulse which the older institution has received 
 from the younger. 
 
>•' 
 
 •*" rtO "PL»r» *" 
 
 
 f IT FIVER 
 
 
 INDEX. 
 
 (OF CHIEF HEADINGS ONLY.) 
 Analysis of Code of Civil Procedure 2 
 
 Answer. 
 
 3i 
 
 Appeal 67 
 
 Appeal, Argument on 77 
 
 Appeal, Briefs on 77 
 
 Appeal, Costs on 79 
 
 Appeal, Damages for Frivolous 79 
 
 Appeal, Diminution of Record on 76 
 
 Appeal, Motion to Dismiss 76. 
 
 Appeal, Notice of, 71 
 
 Appeal, Proceedings in Lower Court on 71 
 
 Appeal, Proceedings in Supreme Court on 76 
 
 Appeal, Proceedings Prior to Judgment on 70 
 
 Appeal, Proceedings Subsequent to Judgment on 79 
 
 Appeal, Record on 74 
 
 Appeal, Remittitur on 79 
 
 Appeal, Rules Governing Decision on 77 
 
 Appeal, Transcript on 74- 
 
 Appeal, Undertaking on 73 
 
 Appearance 25 
 
 Arrest and Bail. 
 
 39 
 
 Attachment ... 46 
 
 Bonds to Obtain Stay 47 
 
 California, History of the Reformed Procedure in 4 
 
 Cause of Action, Definition of 19 
 
 Chancery Procedure 3 
 
 Claim and Delivery 40 
 
 Certiorari, Appeal in 91 
 
 Certiorari, Application for 88 
 
 Certiorari, Notice in 50 
 
 Certiorari, Order to Show Cause in 50 
 
 Certiorari, Proceedings Prior to Judgment in 87-88 
 
 Certiorari, Proceedings Subsequent to Judgment in 91 
 
 Certiorari, Purpose of 87 
 
 Certiorari, The Hearing in gr 
 
 Certiorari, The Return in gj 
 
 Certiorari, Transmission of Judgment in 91 
 
 Certiorari, What Courts have Jurisdiction of o_ 
 
INDEX. 
 
 Certiorari, Writ of 87-90 
 
 Code Commission of 1870 5 
 
 Code Commission of r863 5 
 
 Code Examiners of 1373 5 
 
 Common Counts 24 
 
 Common Law Actions 3 
 
 Complaint, Demurrer to . 30 
 
 Complaint, Fictitious Names in 19 
 
 Complaint, Motion to Strike out Parts of 30 
 
 Complaint, Name of Court in i5 
 
 Complaint, Names of Parties in 17 
 
 Complaint, Place of Court in 16 
 
 Complaint, Proceedings before Filing 15 
 
 Complaint, Rules as to Parties in T 7 _I 9 
 
 Complaint, Signature to 25 
 
 Complaint, Statement of Cause of Action in 20 
 
 Complaint, Supplemental 25 
 
 Complaint, Title of Action in 17 
 
 Complaint, The 16 
 
 Constitutional Provisions Relating to Procedure 7 
 
 Constitution of Courts Constitutional 7 
 
 Costs 48 
 
 Counter-Claim, The 34 
 
 Criticism of Code as to Special Proceedings 84 
 
 Cross-Complaint 35 
 
 Defendants' Steps after Service 29 
 
 Definition of Procedure 1 
 
 Demand for Relief 24 
 
 Demurrer to Complaint. 3° 
 
 Denials .... 31 
 
 Departures from Principles of Code Pleading 24 
 
 Deposit in Court 46 
 
 Disadvantages of Old System 3 
 
 Due Process of Law 1 
 
 Ejectment, Pleading in 24 
 
 England, History of the Reformed Procedure in 4 
 
 Error, Writ of 98 
 
 Exceptions 36 
 
 Execution 49~5° 
 
 Execution, Proceedings in Aid of 49 _ 5° 
 
 Extraordinary or Summary Methods of Review 83 
 
 Files of Superior Court 9 
 
 Findings 3& 
 
INDEX. 
 
 Injunction 4i~4> 
 
 Interlocutory Judgments 46 
 
 Issues, The 35 
 
 Judgment, As Center of Classification of all Procedure 13 
 
 Judgments, Classes of 12 
 
 Judgment, Definition of 11 
 
 Judgment, Entry of 13 
 
 Judgment, "Importance of 11 
 
 Judgment, Interlocutory 46 
 
 Judgment of Supreme Court 71 
 
 Judgment, Proceedings Subsequent to 47 
 
 Judgment, Satisfaction of 13 
 
 Judgments, Sub-Classes of 12 
 
 Jurisdiction, Method of Acquiring 25 
 
 Jurisdiction of Courts Constitutional 7 
 
 Law of the Case 79 
 
 Lis Pendens 39 
 
 List of Tribunals 8 
 
 Mandamus, Answer in 96 
 
 Mandamus, Appeal in 97 
 
 Mandamus, Application in 94 
 
 Mandamus, Costs in 97 
 
 Mandamus, Damages in 97 
 
 Mandamus, Execution in 97 
 
 Mandamus, Method of Enforcement of . . 97 
 
 Mandamus, New Trial in 97 
 
 Mandamus, Notice in 96 
 
 Mandamus, Objections to Answer in 96 
 
 Mandamus, Peremptory Writ of 97 
 
 Mandamus, Proceedings Grouped about Judgment in 92 
 
 Mandamus, Proceedings Prior to Judgment in 94 
 
 Mandamus, Proceedings Subsequent to Judgment in 97 
 
 Mandamus, Purpose of 92 
 
 Mandamus, Service of Writ of 96 
 
 Mandamus, Trial in 97 
 
 Mandamus, What Courts have Jurisdiction of 92 
 
 Mandamus, Writ of 92 
 
 Negatives Pregnant 32 
 
 New Matter 33 
 
 New Trial, Affidavits for : . 64 
 
 New Trial, Bill of Exceptions for 64 
 
 New Trial, Grounds for 52-64 
 
 New Trial, Motion for 51 
 
 New Trial, Notice of Intention 51 
 
INDEX. 
 
 New Trial, On Motion of Court 51 
 
 New Trial, Order Disposing of Motion for 64-65 
 
 New Trial , Statement of Case for 64 
 
 New Trial, Three Stages of Motion for 51 
 
 New York, History of the Reformed Procedure in 4 
 
 Officers of Superior Court. 9 
 
 Pleading Same Cause in Different Forms 24 
 
 Prayer 24 
 
 Proceedings Before Filing Complaint 15 
 
 Proceedings Prior to Judgment 15 
 
 Proceedings Subsequent to Judgment 47 
 
 Prohibition, Writ of. 98 
 
 Provisional Remedies 39 
 
 Receivers 46 
 
 Record Books of Superior Court 9 
 
 References 46 
 
 Replevin 40 
 
 Review (See Certiorari) 
 
 Rules of Pleading Cause of Action 20-24 
 
 Scope of Outlines 2 
 
 Special Proceedings 83 
 
 Stare Decisis 79 
 
 Stay 47-48 
 
 Summons, Contents of , 26 
 
 Summons, Form of 26 
 
 Summons, Motion to Quash Service of 29 
 
 Summons, Rules as to 26 
 
 Summons, Service of 27-28 
 
 Supplemental Complaint 25 
 
 Supreme Court, Files of. 69 
 
 Supreme Court, Judgment of 7° 
 
 Supreme Court, Officers of 67 
 
 Supreme Court, Record Books of 68 
 
 Transcript, Filing 76 
 
 Transcript, Rules as to 74 
 
 Trial, The 35 
 
 Uniting Causes of Action 24 
 
 Venue, Motion for Change of. 29 
 
 Verification 25 
 
 Writ of Error 99 
 
 Writ of Mandamus 92-96 
 
 Writ of Prohibition 98 
 
 Writ of Review or Certiorari 87 
 
*^» 
 
 ras 
 
 ^■*0? THB^*S^ 
 
 ^tlPffB^ 
 
SYLLABUS OF LECTURE I. 
 
 APRIL 23, 1895. 
 
 SUBJECT: 
 
 CONSTITUTIONAL ORIGIN OF PROCED- 
 URE ; 
 
 DEFINITION ; 
 
 GENERAL SCHEME OF OUTLINES ; 
 
 RELATION OF REFORMED TO OLD SYS- 
 TEM ; 
 
 HISTORY OF THE REFORMED PROCED- 
 URE IN CALIFORNIA. 
 
 faSIVERSIT 
 
[twi7BR:iT 
 
 General Outlines of Practice 
 
 UNDER THE 
 
 CALIFORNIA CODE OF CIVIL PROCEDURE. 
 
 Due Process of Law. 
 
 Guaranteed by the Constitution of the United 
 States. 
 
 Constitution of the U. S., Fifth Amend- 
 ment. 
 
 Definition. 
 
 Hare, American Constitutional Law, Vol. 
 
 2 » P a g e 75°- 
 Hurtado v. California, 1 10 U. S., 516. 
 
 Guaranteed by the Constitution of the State of 
 California. 
 
 See Constitution of 1879, Art. I, Sec. 13. 
 
 Definition of Procedure. 
 
 Law of Procedure as distinguished from the 
 Law of Substantive Rights and Obligations. 
 
 Criminal Procedure distinguished from Civil 
 Procedure. 
 
 C. C. P.. Art. 31. 
 Also see Penal Code. 
 
Analysis of the Code of Civil Procedure. 
 
 (See Summary of Contents, pages VII-XI, 
 Deering's Code Civil Procedure.) 
 
 Part I. 
 " Of Courts of Justice." 
 
 Part II. 
 "Of Civil Actions." 
 
 Part III. 
 " Of Special Proceedings of a Civil Nature." 
 
 Part IV. 
 " Of Evidence." 
 
 SCOPE OF THESE OUTLINES. 
 
 Will not treat of Part IV above. 
 
 Will treat only meagrely of Part I above. 
 
 Chiefly devoted to Part II and Part III above. 
 
 Arrangement. 
 
 The arrangement of Part II and Part III will 
 not be followed in these outlines, but what is con- 
 sidered a more logical and intelligible order 
 adopted and hereafter explained. 
 
 Historical. 
 
 California Code of Civil Procedure embodies 
 what is known as the " Reformed Procedure." 
 
The three stages in the historical development 
 of National Jurisprudence. 
 
 (See Sir Henry Maine's Ancient Law ; 
 Pomeroy's Remedies and Remedial 
 Rights, page 6, Art. 7.) 
 i . Use of Fictions. 
 
 2. Introduction of Equitable Conceptions. 
 
 3. Positive Legislation. 
 
 COMMON LAW ACTIONS. 
 
 Case. 
 
 Trover. 
 
 Covenant. 
 
 Debt. 
 
 Assumpsit. 
 
 Ejectment. 
 
 Detinue. 
 
 Replevin. 
 (Pomeroy's Remedies and Remedial 
 Rights, Art. 21.) 
 
 Chancery Procedure. 
 (Ibid., Art. 22.) 
 Disadvantages of the old Common Law Proce- 
 dure. 
 
 (See Stephen on Pleading, Tyler's Edition, 
 
 J 893. P a g es 392-398.) 
 
 1 . Tendency to decide upon mere form. 
 
 2. Narrowing effect of rules, compelling sin- 
 gleness of issue. 
 
3. Too great scope given to the general issue. 
 
 4. Excessive subtlety and needless precision. 
 
 Results. 
 
 1. Expensive amendments. 
 
 2. Sometimes absolute failure of justice on 
 points of mere form. 
 
 General Characteristics of the Reformed Pro- 
 cedure. 
 
 (Pomeroy on Remedies and Remedial 
 Rights, Art. 28.) 
 
 The Reformed Procedure in England. 
 
 The reform movement culminated in England, 
 in 1873. 
 
 (Pomeroy, Art. 23.) 
 
 Reformed Procedure in New York. 
 
 1. The Constitution of 1846. 
 
 2. The Commission of 1847. 
 
 3. The Commissioners' Code of 1848. 
 
 (Albany Law Journal, Vol. 19, p. 292.) 
 
 The Reformed Procedure in California. 
 
 The "Practice Act" of April 29, 1851. 
 
 (See Compiled Laws, 1 850-1 853, page 
 
 5I9-) 
 Taken almost bodily from the New York Code 
 
 of Civil Procedure of 1848. 
 
Substantially the same as the present Code of 
 Civil Procedure. 
 
 Extensive amendments to the " Practice xAct " 
 from 1 85 1 to 1873. 
 
 The Commission of 1868. 
 (See Statutes of 1 867-1 868, page 435.) 
 
 The. Commission of 1870. 
 
 (Statutes 1 869-1870, page 774.) 
 
 Duties of this Commission. 
 
 Not directed by the Statute to make Codes. 
 
 Personnel and Methods of Work. 
 
 Codes Adopted March 12, 1872. 
 Influence of David Dudley Field. 
 " Adopt the Code and amend it afterwards." 
 Extensive amendments immediately following 
 its passage. 
 
 The Code Examiners of 1873. 
 Stephen J. Field, 
 Jackson Temple, 
 John W. Dwindle. 
 
 Their methods. (See California Code Exam- 
 iners' Report, 1873, San Francisco Law Library.) 
 The Report of the Code Examiners. 
 Amendments since 1874. 
 Present condition of the Code. 
 The Commission of 1895. 
 
v f>* OT ~*\ 
 
 SYLLABUS OF LECTURE II 
 
 APRIL 26, 1895. 
 
 SUBJECT: 
 
 TRIBUNALS AND JURISDICTION. 
 Constitutional Origin and Description of same. 
 
 THE SUPERIOR COURT, 
 Its Officers, Records and Files. 
 
 THE JUDGMENT, 
 As Centre for Classification of all Procedure. 
 
CONSTITUTIONAL PROVISIONS 
 RELATING TO PROCEDURE. 
 
 Due Process of Law. Art. i, Sec. 13. 
 
 Jury Trial Guaranteed. Art. 1. Sec. 7. 
 
 Three fourths of Jury may render Verdict in 
 Civil Actions. Ibid. 
 
 Waiver of Jury Trial. Ibid. 
 
 Abolishing imprisonment for debt, except in 
 certain cases. Art. 1, Sec. 15. 
 
 Prohibiting local or special laws relating to cer- 
 tain Matters of Procedure. Art. 4, Sec. 25. 
 
 Judges not to charge Juries with respect to 
 Matters of Fact. Art. 6, Sec. 19. 
 
 Permitting Suits against the State. Art. 20, 
 Sec. 6. 
 
 The Constitution and Jurisdiction of the 
 
 Courts derived entirely from the 
 
 Constitution. 
 
 List of Tribunals. 
 
 (Const., Art. 6, Sec. 1 ; C. C. P., Sec. 33.) 
 
 The Court of Impeachment. 
 (C. C. P., Sees. 36-39.) 
 (Penal Code, Sees. -jt>7 to 753-) 
 
 Constitution of the Supreme Court. 
 
 (Const., Art. 6, Sec. 2 ; C. C. P., Sees. 
 40 to 49.) 
 
Election, Salary, Terms, etc. 
 
 (Const., Art. 6, Sec. 3 ; Pol. Code, Sec. 
 736 ; C. C. P., Sec. 47.) 
 
 Supreme Court Commission. 
 
 (Statutes 1885, page 101 ; Statutes 1889, 
 page 13.) 
 
 Jurisdiction of Supreme Court. 
 
 (Const., Art. 6, Sec. 4 ; C. C. P., Sees. 50 
 
 to 52.) 
 
 Constitution of the Superior Court. 
 
 (Const., Art 6, Sec. 6 ; Pol. Code, Sees. 
 737, 73% ; C. C. P., Sees. 65-74.) 
 
 Jurisdiction of Superior Court. 
 
 (Const., Art. 6, Sec. 5 ; C. C. P., Sees. 75 
 
 to 79.) 
 
 General Constitutional Provisions relating to 
 the Courts. 
 
 (Const., Art. 6, Sees. 5, 22, 23, 24 ; C. C. 
 P., Sees, -j^ 76, 78.) 
 
 Constitution, Jurisdiction, etc., of Justices' and 
 other Inferior Courts. 
 
 (Const., Art. 6, Sees. 1 1 and 13 ; C. C. P., 
 Sees. 85 to 121. 
 
 Inferior Municipal Courts. 
 
 (See General Municipal Incorporation Act, 
 Stats. 1883, page 93, and numerous 
 amendments.) 
 
(See, also, special Acts organizing specific 
 towns prior to 1879.) 
 
 These outlines omit detailed consideration of 
 the procedure of Justices' Courts and inferior 
 tribunals. 
 
 THE SUPERIOR COURT. 
 
 Officers. 
 
 (Aside from Judge and Jury.) 
 Clerk Const., Art. 6, Sec. 14. 
 
 Bailiff. Pol. Code, Sec. 4,176, Sub. 4. 
 
 Phonographic Reporters. C. C. P., Sees. 268-274. 
 Court Commissioners. C. C. P., Sees. 258-259. 
 Special Referees. C. C. P., Sees. 638-645. 
 
 Attorneys and Counselors-at-Law. 
 
 C. C. P., Sees. 275-299. 
 (Duties of Attorneys ; Disbarment Pro- 
 ceedings. Ibid.) 
 
 Records and Files of the Superior Court. 
 (In the Custody of the Clerk.) 
 
 The Record Books. 
 
 General Indexes. Description and purposes. 
 Register. (C. C. P., 1,052.) Description, pur- 
 poses and illustration. 
 
IO 
 
 Di i at- . v> i ) Description. 
 
 Blotter or rough Minute Book. I S F and 
 
 Engrossed Minute Book. | Jli ustration . 
 
 Trial Calendar Book. (C. C. P., Art. 593.) 
 
 Law and Motion Calendar Book. Description 
 and purposes. 
 
 Execution Book. (C. C. P.. 683.) Descrip- 
 tion and purposes. 
 
 Daily Order Book. Description and purposes. 
 
 Judgment Record. (C. C. P., 668.) Descrip- 
 tion, purposes and illustration. 
 
 Judgment Docket. (CYC. P., Sees. 671, 672.) 
 Description, purposes and illustration. 
 
 The Files. 
 
 (Description, purposes and illustrations.) 
 Stipulations. 
 Notices. 
 Demands. 
 Appearances. 
 Orders. 
 Writs. 
 Summons. 
 Affidavits. 
 Depositions. 
 Remittitur. 
 Cost Bills. 
 Statement of the Case on Motion for New Trial. 
 The Judgment and Judgment Roll. 
 
1 1 
 
 THE JUDGMENT. 
 
 The object of all procedure is to obtain a 
 final judgment. 
 
 The judgment is the final official determination 
 of the controversy. 
 
 " The very voyce of law and right.'' 
 
 (Co. Litt., 2>9 a \ Freeman on Judgments, 
 4th Ed., Sec. i.) 
 
 44 The judgment is the end of the law." 
 
 (Blystone v. Blystone, 51 Pa. St., 373; 
 
 Freeman, ibid.) 
 (Also Gregory v. Nelson, 41 Cal., 278 ; 
 Black on Judgments. Vol. 1., Sec. 1.) 
 
 " A judgment is the final determination of the 
 rights of the parties in an action or proceeding." 
 (C. C. P., Sec. 577.) 
 
 Import of the Judgment. 
 
 (See Black on Judgments, Art. 4 ; C. C. 
 P., 1,908-1,911 ; 1,916, 1,917.) 
 
 1. Establishes indisputable obligation. 
 
 2. Gives right to execution. 
 
 3. Creates estoppel or bar. 
 
 4. May constitute evidence or source of title. 
 
 5. When docketed, creates a lien on real es- 
 tate. 
 
12 
 
 From this point the treatment will relate 
 chiefly to 
 
 Civil Actions (C. C. P., Sees. 21, 22). 
 
 Later will come brief treatment of 
 
 Special Proceedings of a Civil Nature (C. C. 
 P., Sec. 23). 
 
 Classes of Judgments. 
 
 (This classification is superficial and unimpor- 
 tant). 
 
 i. Judgment by confession. C. C. P., 1,132 
 to 1,134. 
 
 2. Clerk's default. C. C. P., 585, Sub. 1. 
 
 3. Court default judgment. C. C. P., Sec. 
 585, Subs. 2 and 3. 
 
 4. Judgment after demurrer to complaint sus- 
 tained and failure to answer. C. C. P., Sec. 432. 
 
 5. Judgment of dismissal. C. C. P., 581, as 
 amended in 1895. 
 
 Sub-Classes. 
 
 6. Judgment on arbitration. C.C. P., Sec. 1,286. 
 
 7. Judgment on submitted case. C. C. P., 
 Sees. 1,138 to 1,140. 
 
 8. Judgment on offer to compromise. C. C. 
 P., Sec. 997. 
 
 9. Judgment in foreclosure of mortgage on 
 real estate. C. C. P., Sec. 726. 
 
 io. Judgment in action to abate a nuisance. 
 C. C. P., Sec. 731. 
 
*3 
 
 Rules as to Entry of Judgment. 
 
 1. After verdict judgment should be entered 
 within twenty-four hours. C. C. P., Sec. 664. 
 
 Must be in the Judgment Book. C. C. P., 
 Sec. 668. 
 
 2. If party obtaining judgment does not enter 
 within six months, the adverse party may take a 
 dismissal. C. C. P., Sec. 581, Sub. 6. 
 
 Rules as to Satisfaction of Judgment. 
 
 1. When execution is returned satisfied. 
 
 2. Filing satisfaction acknowledged by judg- 
 ment creditor in same manner as conveyance of 
 real estate. 
 
 3. Creditor's endorsement on the face of the 
 record. 
 
 4. By attorney's endorsement. 
 
 C. C. P., Sec. 675. 
 Attorney's authority herein. 
 
 (C. C. P., Sec. 283, Sub. 2.) 
 
 ALL PROCEDURE PROPERLY CLAS- 
 SIFIED AND GROUPED ABOUT 
 THE JUDGMENT. 
 I. 
 Proceedings Prior to Judgment. 
 
 1. Proceedings for the purpose of acquiring 
 jurisdiction. 
 
 The Summons; its form, contents, method 
 of issue, service and return ; appear- 
 ances. 
 
 "ffJUVBEJITF] 
 
H 
 
 2. Proceedings for the purpose of determining 
 the nature of the controversy, making up the 
 issues and preparing for the introduction of evi- 
 dence at the trial. 
 
 Here, of pleadings and motions and orders 
 relating thereto. 
 
 3. The Trial. 
 
 4. Provisional remedies, pending the litigation, 
 for the purpose of securing the payment of the 
 judgment or preserving the status quo. 
 
 Here, of lis pendens, arrest and bail, claim 
 and delivery, injunction, attachment, 
 receivers, deposit in Court, preserv- 
 ing testimony, depositions, interlocu- 
 tory judgments and references. 
 
 II. 
 Proceedings Subsequent to the Judgment. 
 
 1 . Stay. 
 
 2. Costs. 
 
 3. Execution. 
 
 4. Proceedings in aid of execution. 
 
 5. Motion for new trial. 
 
 6. Appeal. 
 
SYLLABUS OF LECTURE III. 
 
 APRIL 30, 1895. 
 
 SUBJECT: 
 
 PROCEEDINGS BEFORE FILING COM- | 
 PLAINT. 
 
 COMPLAINT. 
 
 RULES OF PLEADING. 
 
 APPEARANCES. 
 
 SUMMONS. 
 
FIRST. 
 
 PROCEEDINGS PRIOR TO JUDGMENT. 
 
 ONE. 
 
 PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE 
 
 NATURE OF THE CONTROVERSY, WAKING UP THE 
 
 ISSUES AND PREPARING FOR THE INTRODUCTION 
 
 OF EVIDENCE AT THE TRIAL 
 
 (This is taken up before the summons, because 
 under our practice complaint must be filed before 
 summons issues.) 
 
 I. 
 
 PROCEEDINGS BEFORE FILING 
 COMPLAINT. 
 
 i. Appointment of Guardian ad litem. (C. C. 
 P., Art. 372.) 
 
 2. Obtaining Permission to Sue Officer of 
 Court. (Insolvent Act, 1880, Article 6. Deer- 
 ing's C. C. P., p. 680 ; Adams v. Woods, 9 Cal., 
 24-) . 
 
 3. Obtaining Permission for Officer of Court 
 to Bring Suit (C. C. P v 568.) 
 
i6 
 
 II. 
 THE COMPLAINT. 
 
 i. Civil Actions Commenced When Complaint 
 is Filed. (C. C. P., 405.) 
 
 2. Contents of Complaint. 
 
 A. 
 The Name of the Court. Illustration. 
 C. C. P., 474. § 1. 
 
 B. 
 
 The Place of the Court. 
 
 C. C. P., 474, § 1. 
 
 Venue. 
 
 Place of Trial fixed by C. C. P., 392-395 ; see, 
 also, Constitution of 1879, Article VI, § 5. 
 
 Suits Against Corporations. 
 
 Constitution, Article 12, Section 16. 
 
 Challenged as Unconstitutional, but Upheld. 
 Lewis v. S. P. Coast R. R. Co., 66 Cal., 
 209. 
 
 "What is the Residence of a Corporation ? 
 
 Jenkins v. Cal. Stage Co., 22 Cal., 538. 
 
 Apparently overruled in Cal. S. R. Co. v. S. 
 P. R. R. Co., 65 Cal., 394 ; 
 
*7 
 
 But affirmed, again, in Cohn v. C. P. R. R. 
 Co., 71 Cal., 488. 
 
 Residence of Municipal Corporation. 
 
 Buck v. City of Eureka, 97 Cal., 135. 
 McSherry v. Pa. C. G. M. Co., 97 Cal., 
 
 643- 
 
 Residence of Foreign Corporation ; Has None. 
 
 Thomas v. Placerville G. Q. M. Co., 65 
 Cal., 600. 
 
 Suit Against an Association, Not a Corporation. 
 
 Constitution, Article 12, Section 16. 
 
 The subject of change of venue will be taken 
 up later at the point in the proceedings where the 
 motion for that purpose must be made. 
 
 C. 
 
 Names of the Parties to the Action — 
 Title of the Action. 
 
 C. C. P., 474, § 1. 
 
 C. C. P., Sees, 367-390. 
 
 1. The plaintiff must be the real party in in- 
 terest. 
 
 C. C. P., Article 367. 
 
 Exceptions. 
 C. C. P., 368-371. 
 
2. Married woman as party. 
 C. C. P., Article 370. 
 
 3. Infant, insane or incompetent persons as 
 
 party. 
 
 C. C. P., 372. 
 
 4. Party plaintiff in case of seduction. 
 
 C C. P., 375- 
 
 5. Party plaintiff in case of injury to or death 
 of minor child or ward, caused by tort. 
 
 C. C. P., 3/6. 
 
 6. Party plaintiff in action for damages for 
 death, by tort, of person not a minor. 
 
 C C. P., 377- 
 
 "Who May Be Joined as Plaintiffs. 
 
 All parties having an interest in the subject of 
 the action. 
 
 C. C. P., 37 S. 
 
 "Who May be Parties Defendant. 
 
 Anyone who has or claims any interest in the 
 
 controversy, adverse to the plaintiff, or who is a 
 
 necessary party to the complete determination 
 
 and settlement of the question involved in the 
 
 suit. 
 
 C. C. P., Sec. 379. 
 
 Associate Defendants Sued Under Common 
 
 Name. 
 
 C. C. P., Sec. 388. 
 
19 
 
 Substitution in Case of Death or Transfer of 
 Interest. > 
 
 C. C. P., 385. 
 
 Unwilling Plaintiff May be Made Defendant. 
 
 C. C. P., 382. 
 
 One Suing or Defending for the Benefit of All. 
 C. C. P., 382. 
 
 Intervenors. 
 C. C. P., 387. 
 
 Court May Bring in New Parties. 
 
 C. C. P., 389. 
 
 Method of Designating Certain Parties. 
 
 Corporations. 
 
 Co-partnerships. 
 
 Parties in official or trust capacity. 
 
 Use of Fictitious Names. 
 C. C. P., 474. 
 
 D. 
 
 The statement of the facts constituting the 
 cause of action, in ordinary and concise language 
 C. C. P., Sec. 426, Subdivision 2. 
 
 Definition of Cause of Action. 
 
 (Pomeroy's Remedies and Remedial 
 Rights, Art. 453.) 
 
20 
 
 Analysis. 
 
 Primary right of plaintiff. 
 Corresponding primary duty of defendant ; 
 Defendant's breach of plaintiff's primary right ; 
 Plaintiff's primary right springing from the 
 breach. 
 
 Rules of Pleading So Far as They Relate 
 
 to the Statement of the Plaintiff's 
 
 Cause of Action. 
 
 "Logical directness and simplicity of statement 
 '' should always be observed in the pleading." 
 
 Sanderson, J., in Miles v. McDermott, 31 
 Cal., 274. 
 
 " Two of the leading ends contemplated by the 
 " Code are simplicity and economy. As contrib- 
 " uting to the attainment of these ends, it was the 
 "intention of the Code to require the pleadings 
 "to be so framed as not only to apprise the par- 
 " ties of the facts to be proved by them, but to 
 " narrow the proofs upon the trial." 
 
 Burnett, J., in Piercy v. Sabin, 10 Cal., 27. 
 
 Detailed Rules. 
 
 1. 
 
 Facts only must be pleaded. 
 
 Green v. Palmer, 15 Cal., 412. 
 
21 
 
 This Rule excludes : 
 
 a. Argumentative matter. [Ibid.) 
 
 b. Hypothetical matter. {Ibid.) 
 
 c. Evidentiary matter. (Ibid.) 
 
 See, also, Patterson v. Keystone Mining 
 
 Co., 30 Cal., 364. 
 Larco v. Casaneuava, 30 Cal., 566. 
 
 d. Matter of opinion. 
 Snowy. Halstead, 1 Cal., 361. 
 
 e. Le^al conclusions. 
 
 Green v. Palmer, 15 Cal., 415. 
 
 Piercy v. Savin, 10 Cal.. 29. 
 
 Dye v. Dye, 11 Cal., 169. 
 
 Dutch Flat Co. v. Mooney, 12 Cal., 534. 
 
 / Averment by way of recital. 
 
 Shafer v. Bay River, etc., 4 Cal., 294. 
 
 g. Anticipation of defenses. 
 
 Smith v. Richmond, 19 Cal., 484. 
 
 h. All irrelevant and redundant matter. 
 C. C. P., 453- 
 
 .2. 
 
 Those facts and those only must be stated 
 which constitute the cause of action. 
 Green v. Palmer, 15 Cal., 415. 
 
 This includes the following rules : 
 
 a. All material facts must be alleged. 
 (Ibid.) 
 
2 2 
 
 6. Nothing must be alleged which is not 
 material. {Ibid.) 
 Test of materiality. (Ibid., and also C. C. 
 
 P., 463-) 
 c. Only ultimate facts should be stated. 
 Green v. Palmer, 15 Cal., 415. 
 Grewell v. Walden, 23 Cal., 169. 
 
 3- 
 
 The language must be ordinary, as distinguished 
 from technical. 
 
 C. C. P., 426, Subdivision 2. 
 Bowen v. Aubrey, 22 Cal., 570. 
 
 4. 
 
 The language should be concise. 
 C. C. P., 426, Subdivision 2. 
 Green v. Palmer, 15 Cal., 418. 
 
 5- 
 Statements must be made unequivocally, leav- 
 ing nothing to inference. 
 
 Moore v. Besse, 30 Cal., 570. 
 
 G-reen p. Palmer, 15 Cal., 412, as the Leading 
 
 Case. 
 
 Decided in i860. 
 
 By Stephen J. Field, C. J. ; Baldwin, J., concur- 
 ring. 
 
 Follows a manual published by New York Code 
 Commissioners. 
 
2 3 
 
 Miscellaneous Rules and Illustrations. 
 
 Facts constituting fraud must be set up with 
 great particularity. 
 
 Kent v. Snyder, 30 Cal., 667. 
 
 Pleading document in haec verba preferable to 
 pleading by legal effect. 
 
 Joseph v. Holt, 3J Cal., 253. 
 
 The whole pleading will be construed together. 
 Alemany v. Petaluma, 38 Cal., 553. 
 
 Only facts alleged can be proved. 
 Hicks v. Murray, 43 Cal., 519. 
 
 Improper to omit matters of substance and at- 
 tempt to supply them by reference to exhibits. 
 
 City of Los Angeles v. Signoret, 50 Cal., 
 298. 
 
 The pleader presumed to state his facts as fa- 
 vorably for himself as possible. 
 
 Rogers v. Shannon, 52 Cal., 99. 
 
 Pleadings construed most strongly against 
 pleader, and no intendments can be indulged in 
 its aid. 
 
 Callahan v. Loughran, 102 Cal., 476. 
 
 Allegations and proofs must agree. 
 Murdock v. Clarke, 59 Cal., 683. 
 
 Defects in the complaint may be cured by 
 averments in the cross complaint. 
 
 Cohen v. Knox, 90 Cal., 266. 
 
24 
 
 Or by the answer. 
 
 Shiveley v. Semi-Tropic Land and Water 
 Co., 99 Cal., 259. 
 
 Justice Field's Departures from Principles 
 . of Code Pleading. 
 
 1. 
 
 Old form of common counts allowed. 
 Freeborn v. Glazer, 10 Cal., 337. 
 
 2. 
 
 Allegations of conclusions of law permitted 
 in actions in ejectment. 
 
 Payne v. Treadwell, 16 Cal., 242. 
 
 Uniting Causes of Action. 
 C. C. P., 427. 
 
 Pleading the Same Cause in Different 
 Forms. 
 
 Wilson v. Smith, 61 Cal., 209. 
 
 E. 
 
 Demand for Relief— Prayer. 
 
 C. C. P., 426, Subdivision 3. 
 
 Importance in View of Defendant's Possible 
 Default. (C. C. P., 580.) 
 
25 
 
 Signature to Complaint. 
 
 Verification. 
 
 (C C. P., 446.) 
 
 Advantage gained by verification. Puts defend- 
 ant upon specific denial. (C. C. P., 437.) 
 
 Complaints in certain cases must be verified : 
 
 Examples. 
 
 Injunction. (C. C. P., 527.) 
 
 Forcible and unlawful entry and detainer. (C. 
 
 C. P., 1,175) 
 
 To enforce liens against steamers, vessels and 
 boats. (C. C. P., 8 [5.) 
 
 Supplemental Complaint. 
 (C. C. P., 464.) 
 
 TWO. 
 
 METHOD OF ACQUIRING JURISDIC- 
 TION OF THE PARTIES. 
 
 I. 
 
 Appearance. 
 
 (C. C. P., 416.) 
 Who may enter. 
 Form. 
 
 Authority of attorney. (C. C. P., 283.) 
 Effect as to time of pleading. 
 
26 
 
 II. 
 
 Summons. 
 
 Contents.— C. C. P., 407. 
 
 Importance of correct form, contents and ser- 
 vice of summons, in view of defendant's possible 
 default. 
 
 The summons must contain all required by the 
 Statute, whether deemed needful or not. 
 Lyman v. Milton, 44 Cal., 630. 
 Ward v. Ward, 59 Cal., 139. 
 
 Endorsement of attorney's name. 
 Shinn v. Cummins. 65 Cal., 97. 
 
 Only substantial departure from the require- 
 ments of the Statute will be fatal. (Ibid., C. C. 
 
 p., 4 .) 
 
 General statement of the nature of the action 
 sufficient. 
 
 Bewick v. Muir, 83 Cal., 368. 
 
 Mere variance in form of words, not mislead- 
 ing, will 'not invalidate. 
 
 Clark v. Palmer, 90 Cal., 504. 
 Behlow v. Shorb, 91 Cal., 141. 
 
 All names of the parties must be stated ; the 
 use of u et aiy not sufficient to supply this omis- 
 sion. 
 
 Lyman v. Milton, 44 Cal., 630. 
 
27 
 
 Particular Forms of Summons Required in Cer- 
 tain Cases. 
 
 Partition of real property. (C. C. P., 756.) 
 Proceedings against joint debtor. [Ibid., 989- 
 
 994-) 
 
 Forcible and unlawful entry and detainer. 
 
 (Ibid., 1,167.) 
 
 Eminent domain. (Ibid., 1,245.) 
 
 Service of Summons. 
 
 By whom served. (C. C. P., Sec. 410.) 
 Copy of complaint must be served with each 
 copy of summons. (Ibid., as amended in 1893 ; 
 former rule.) 
 
 Upon whom served. (C. C. P., 411.) 
 Service by publication. (C. C. P., 412.) 
 Affidavits required preliminary to service by 
 publication. (Ibid.) 
 
 Requisites of affidavit and order ; provisions as 
 to service by publication strictly construed. Affi- 
 davit and order must both state facts showing dil- 
 igence ; also fact that the defendant is a necessary 
 party. 
 
 Repeating language of the statute is not suffi- 
 cient. 
 
 Ricketson v. Richardson, 26 Cal., 149. 
 
 No showing of diligence necessary as to non- 
 resident defendant. 
 
 Anderson v. Goff, 72 Cal., 69. 
 
28 
 
 Service by publication on non-resident only 
 good as to property attached within the State. 
 {Ibid.) 
 
 This rule is based upon considerations arising 
 out of the Constitution of the United States. 
 Pennoyer v. Neff, 95 U. S., 714. 
 
 Does not apply as to status of parties in, for 
 instance, divorce proceedings, or where the action 
 may be considered in rem. 
 
 Estate of Newman, 75 Cal., 213. 
 
 Service by telegraph. (C. C. P., Article 1,017.) 
 
 Time of issue of summons. Within one year 
 from the commencement of the action, or suit dis- 
 missed. 
 
 Reynolds v. Page, 35 Cal., 296. 
 
 Time within which service may be made. (C. 
 C. P., 581, Sub. 7.) 
 
 Construed in Murray v. Gleeson, too Cal., 511. 
 
 Proof of Service. 
 
 (C. C. P., 415-) 
 
 Doerfler v. Schmidt, 64 Cal., 265. 
 
SYLLABUS OF LECTURE IV. 
 
 MAY 3, 1895. 
 
 SUBJECT: 
 STEPS ON BEHALF OF DEFENDANT. 
 
 PRELIMINARY MOTIONS; DEMURRER 
 ANSWER. 
 
 THE ISSUES. 
 
 THE TRIAL. 
 
 EXCEPTIONS AND FINDINGS. 
 
PROCEEDINGS PRIOR TO JUDGMENT, 
 
 {Continued?) 
 
 STEPS ON BEHALF OF DEFENDANT 
 AFTER SERVICE. 
 
 I. 
 Motion to Quash. Service. 
 
 This must be by special appearance ; general 
 appearance waives. 
 
 Form of Special Appearance and Notices. 
 
 II. 
 Motion for Change of Venue. 
 
 C. C. P., 396-397- 
 When must be made. 
 Affidavit of Merits. 
 
 Buell v. Dod^e, 63 Cal., 553. 
 
 Insufficient affidavit. 
 
 Nickerson v. Cal. Raisin Co., 61 Cal., 268. 
 
 Written demand. 
 C. C. P., 396. 
 
 Notice of Motion. 
 Grounds of Motion. 
 C. C. P., 397- 
 
3° 
 
 When changed as matter of right. 
 When discretionary. 
 
 Watts v. White, 13 Cal., 321. 
 
 III. 
 Motion to Strike out Parts of Complaint. 
 
 Grounds. 
 
 C. C. P., 453- 
 
 Form of Notice. 
 
 Superior Court Rules, San Francisco. 
 
 IV. 
 Demurrer to Complaint. 
 
 Time for Demurrer. 
 C. C. P., 430. 
 
 Grounds of Demurrer. 
 Ibid. 
 
 Form of Demurrer. Illustration. 
 
 Raises issue of law. 
 
 Cook v. De la Guerra, 24 Cal., 238. 
 
 Admits truth of facts alleged. 
 But only such as are issuable and well pleaded. 
 Branham v. Mayor and Common Council 
 of San Jose, 24 Cal., 585. 
 
 Should distinctly specify grounds. 
 C. C. P., 431- 
 
3i 
 
 Should not state facts. 
 
 Cook v. De la Guerra, 24 Cal., 238. 
 
 Distinction between Special and General. 
 Harnish p. Bramer, 71 Cal., 155. 
 
 Demurring and Answering simultaneously. 
 C. C. P., 431. 
 
 Raising Grounds of Demurrer by Answer. 
 C. C. P., 433- 
 
 Failure to demur waives. 
 What grounds. 
 C. C. P., 434. 
 
 Effect of Overruling. 
 C. C. P., 476. 
 
 Effect of Sustaining. 
 Ibid. 
 
 ANSWER. 
 
 C. C. P., 437- 
 
 Denials. 
 
 (a) General. C. C. P., 437, Sub. 1. 
 
 (b) Specific. [Ibid.) 
 
 Rules. 
 
 Only material allegations should be denied. 
 
 Ibid. 
 Complaint unverified, general denial permissi- 
 ble. 
 
 C. C. P., 437, Sub. 2. 
 
General denial puts in issue material allega- 
 tions. 
 
 Ibid. 
 
 Complaint verified, denials must be specific. 
 Ibid. 
 
 Specific denials must be made positive, or ac- 
 cording to information or belief. 
 Ibid. 
 
 Defendant without information or belief may 
 deny on that ground. 
 Ibid. 
 
 Negatives Pregnant. 
 
 See Stephens on Pleading, 3rd American 
 Edition, 1893, page 335-6. 
 
 Classes of Allegations which Need not be 
 Denied. 
 
 Argumentative. 
 
 Hypothetical. 
 
 Evidentiary. 
 
 Matter of Opinion. 
 
 Le»al Conclusions. 
 
 Recitals. 
 
 Anticipated Defenses. 
 
 Irrelevant and redundant matter. 
 
 Ambiguous, unintelligible and uncertain 
 
 matter. 
 Immaterial matter. 
 
33 
 
 Allegations of Facts not Ultimate. 
 Allegations equivocal and by way of in- 
 ference. 
 
 Danger of Leaving Imperfect Allegations 
 Undenied. 
 
 Advantages and Disadvantages of Leaving 
 Plaintiff's Pleading Imperfect. 
 
 Defects Cured after Verdict or Judgment. 
 
 New Matter. 
 C. C. P., 437, Sub. 2. 
 
 (a) Constituting a defense. 
 
 (b) Counter-claim. 
 
 Definition of "New Matter." 
 
 Douglas v. Haberstro, 25 Hun., 262. 
 Pomeroy's Remedies and Remedial Rights, 
 Sec. 691. 
 
 New matter confesses and avoids all material 
 allegations of the complaint. Ibid., 692. 
 
 Illustrations of New Matter. 
 
 Payment. 
 
 Arbitrament and award. 
 
 Former recovery. 
 
 Usury. 
 
 Want of consideration. 
 
 Breach of warranty. 
 
 Estoppel by judgment. 
 
 Statute of Limitations. 
 
M 
 
 Rule as to Method of Setting Forth New Mat- 
 ter. 
 
 Same rules should be observed as in making 
 statement of cause of action in complaint. 
 
 Pomeroy's Remedies and Remedial Rights, 
 Article 687. 
 
 The Counter-Claim. 
 Requisites. 
 
 C. C. P., 438. 
 
 Definition of "Transaction" and "Subject of 
 the Action." 
 
 Pomeroy's Remedies and Remedial Rights, 
 475; 487-49o; 401-474; 737-774- 
 Narrowness of New York Decisions. 
 Broader Tendency in California. 
 
 See Story & Isham Commercial Co. v. 
 Story ct a/., 100 Cal., 30. 
 
 Illustrations. 
 
 Penalty for Omitting to Set up Counter-Claim. 
 
 C. C. P., 439- 
 Rules of Pleading Counter-Claim. 
 Should announce itself a counter-claim. 
 In setting forth facts, should observe the same 
 rules as in making statement of cause of action in 
 complaint. 
 
 Should close with appropriate prayer. 
 
 Pomeroy's Remedies and Remedial Rights, 
 Article 516; 738 ; 748. 
 
Different Grounds of Defense and Counter- 
 Claim must be Separately stated. 
 C. C. P., 441. 
 
 Pleading Inconsistent Defenses. 
 Bell p. Brown, 22 Cal., 671. 
 
 The Issues. 
 
 Demurrer raises issue of law. 
 C. C. P.. 589. 
 
 Material Allegations of Complaint Controvert- 
 ed by Answer raises Issue of Fact. 
 C. C. P., 590, Sub. 1. 
 
 All new matter in the answer is deemed con- 
 troverted and thus raises an issue of fact. 
 Ibid., Sub. 2 ; C. C. P., 462. 
 
 Material Allegations of Complaint not Contro- 
 verted taken as true. 
 C C. P., 462. 
 
 Cross-Complaint. 
 
 C. C. P., 442. 
 
 Ready for Trial. 
 Method of Sifting out the Issues. 
 
 The Trial. 
 
 C. C. P., 558 to 636. 
 Will not discuss details of the trial. 
 
36 
 
 Exceptions. 
 Definition. 
 
 C. C. P., 646. 
 
 When taken ; purpose. 
 C. C. P., 646. 
 
 No particular form necessary. 
 C. C. P., 648. 
 
 Exception to sufficiency of evidence must be 
 specific. 
 
 Ibid. 
 
 Exception must be signed by Judge and filed. 
 C. C. P., 649. 
 
 Exceptions to isolated rulings before trial. 
 Exceptions during the conduct of the trial. 
 C. C. P., 650. 
 
 Findings. 
 
 Decision of Court must be in writing. 
 C. C. P., 632. 
 
 Tacts found and conclusions of law separately 
 stated. 
 
 C C, P.. 633. 
 
 Waiver of findings. 
 C. C. P., 634. 
 
 Losing party should always insist on findings. 
 Morrison v. Lods, 39 Cal., 381. 
 
37 
 
 Rules as to Findings. 
 
 See Hayne on New Trials and Appeals, 
 Articles 240-242. 
 
 Must cover every material issue. 
 Not required upon immaterial issue. 
 Must state facts as stated in the pleadings. 
 Must not be conclusions of law. 
 Must not be statements of evidence. 
 Must be of ultimate facts ; or, 
 Secondary facts from which the ultimate facts 
 necessarily result. 
 
 Should not contain argument or hypothesis. 
 Should not be contradictory. 
 
 General Findings Permitted. 
 
 It is permissible to find "That the facts stated 
 " in the plaintiff's complaint are true, and the 
 "facts stated in the defendant's answer are not 
 " true." 
 
 McEwen v. Johnson, 7 Cal., 260. 
 
 Findings by reference often held insufficient 
 and are dangerous. 
 
 See Hayne, Article 242. 
 
>01 TO"- 
 
 t * * 
 
 SYLLABUS OF LECTURE V. 
 
 MAY 7, 1895. 
 
 SUBJECT: 
 
 PROVISIONAL REMEDIES. 
 
 LIS PENDENS. 
 
 INJUNCTION. 
 
 ATTACHMENT. 
 
 ETC 
 
 PROCEEDINGS SUBSEQUENT TO JUDG- 
 MENT. 
 
 STAY; COSTS; EXECUTION. 
 
PROVISIONAL REMEDIES, 
 
 APPLIED PENDING THE LITIGATION FOR THE PURPOSE OF 
 
 SECURING THE JUDGMENT OR PRESERVING 
 
 THE STATUS QUO. 
 
 I. 
 LIS PENDENS. 
 C. C. P., 409. 
 Who may file ; plaintiff or defendant claiming- 
 affirmative relief. 
 
 In what classes of cases. 
 
 Contents. 
 Karnes of parties ; 
 Object of action or defense ; 
 Description of property. 
 
 Effect. 
 Illustrations. 
 Casebolt v. Lewis. 
 Old common law rule of lis pendens, mere pen- 
 dency of action gives constructive notice. 
 
 Parties named by fictitious names not affected. 
 Compulsory in partition suit. 
 
 C C. P., 755. 
 
 II. 
 ARREST AND BAIL. 
 C. C. P., 478-504. 
 Cases in which permissible. 
 C. C. P., 479. 
 
4Q 
 
 Element of fraud, concealment or flight, must 
 
 be present. 
 
 Purpose. 
 
 To require defendant to render himself amena- 
 ble at all times to the process of the Court during 
 pendency of the action, and to such as might be 
 issued to enforce the judgment therein. 
 C. C. P., 487. 
 
 Steps. 
 
 Affidavit. 
 
 
 C. C. P., 
 
 48 1 
 
 Order. 
 
 
 C. C. P., 
 
 480, 
 
 Undertaking. 
 
 
 C. C. P., 
 
 482 
 
 Defendant may relieve himself by giving bond 
 or depositing money. 
 C. C. P., 486. 
 
 This process seldom used ; dangerous. Liabil- 
 ity of plaintiff on his undertaking ; liability to ac- 
 tion for false imprisonment. 
 
 Forms. 
 
 III. 
 
 CLAIM AND DELIVERY. 
 
 Replevin. 
 Cases where applicable. 
 C. C. P., 509, 510. 
 
4i 
 
 Procedure. 
 
 C. C. P., 509-520. 
 
 Forms. 
 
 Illustrations. 
 
 IV. 
 INJUNCTION. 
 
 C. C. P., 5 2 5-533- 
 Definition. 
 
 C C. P., 525. 
 
 Cases where allowable. 
 C. C. P., 526. 
 
 Illustrations and Rules. 
 
 Opening of road enjoined. 
 
 Curran v. Shattuck, 24 Cal., 427. 
 
 Waste by mortgagee enjoined. 
 
 Robinson v. Russell, 24 Cal., 467. 
 
 Sheriff sale which might cloud his title en- 
 
 joined. 
 
 Englund v. Lewis, 25 Cal., 337. 
 
 Injunction to restrain defendant from removing 
 minerals from patented lands. 
 
 People v. Morrell, 26 Cal., 336. 
 Injunction to prevent tenant from removing 
 building. 
 
 Perrine v. Marsden, 34 Cal., 14. 
 
42 
 
 Injunction to preserve mining property pending- 
 litigation. 
 
 Hess v. Winder, 34 Cal., 270. 
 
 Injunction to restrain diversion of water. 
 
 N. C. & S. C. Co. v. Kidd, 2>7 Cal., 282. 
 
 To prevent the erection of wharves which will 
 cut off premises from navigable waters of the bay. 
 Crowell v. Martin, 43 Cal., 605. 
 
 Prevent sale of homestead on execution. 
 
 Miller v. Little, 47 Cal, 349. 
 
 To restrain continued trespasses. 
 
 Mechanics' Foundry of S. F. v. Ryall, 62 
 Cal., 416. 
 
 Injunction denied in this case because it did 
 
 not appear that the defendant was insolvent, nor 
 
 that the wrong complained of was irreparable and 
 
 could not be compensated in damages. 
 
 To prevent assessment sale of corporate stock. 
 
 Burham v. S. F. F. M. Co., 76 Cal., 26. 
 
 To prevent the destruction of growing crops. 
 
 Schneider v. Brown, 85 Cal., 205. 
 
 To prevent the deposit of debris. 
 
 Miller v. Highland Ditch Co., 87 Cal., 430. 
 
 To restrain enforcement of judgment. 
 
 Thompsons. Laughlin, 91 Cal., 313. 
 
 To prevent infringement of trademark ; also to 
 
 prevent fraud upon public. 
 
 Joseph v. Macowsky, 96 Cab, 519. 
 
43 
 
 When Not Granted. 
 
 Illustrations. 
 
 In aid of trespass, unless it appears the injury 
 will be irreparable and cannot be compensated in 
 damages. 
 
 Waldron v. Marsh, 5 Cal., 119. 
 
 Affidavit must show how and why the damages 
 would be irreparable ; not sufficient to allege 
 generally that it is irreparable. 
 
 One Court cannot enjoin the proceedings of 
 another of co-ordinate jurisdiction. 
 
 Anthony v. Dunlap, 8 Cal., 26. 
 Rickett v. Johnson, 8 Cal., 34. 
 
 The Court in which the objectionable order was 
 made is the proper one to apply to for relief. 
 
 Injunction not granted to prevent opening of 
 road under an unconstitutional act ; the remedy 
 at law is sufficient. 
 
 Leach v. Day, 27 Cal., 643. 
 
 Sale under void execution not enjoined. 
 Sanchez v. Carriaga, 31 Cal., 170. 
 
 Execution, when judgment void on its face, will 
 not be restrained by injunction. 
 
 Gates v. Lane, 49 Cal., 266. 
 
 Party not entitled to injunction in a case where 
 
44 
 
 he has a plain, speedy and adequate remedy at 
 
 law. 
 
 Richards v. Kirkpatrick, 53 Cal., 433. 
 
 Injunction not granted to prevent erection of 
 public bridge where public are amply able to re- 
 spond in damages. 
 
 Bigelow v. City of Los Angeles, 85 Cal., 
 614. 
 
 Equitable circumstances beyond the mere alle- 
 gation of irreparable injury must be shown — as in- 
 solvency, impediments to a judgment at law, or 
 to adequate legal relief, or a threatened destruc- 
 tion of the property, or the like. 
 
 Burnett v. Whitesides, 13 Cal., 156. 
 
 Public nuisances enjoined at instance of private 
 party only where specific injury is shown. 
 Crowley v. Davis, 63 Cal., 460. 
 
 To restrain supervisors from incurring liability 
 not a proper charge upon the county. 
 Linden v. Case, 46 Cal., 172. 
 
 Difference Between Mandatory and Pro- 
 hibitory. 
 
 Code definition of injunction omits the manda- 
 tory ingredient. 
 
 Gardners. Stroever, 81 Cal., 148. 
 
 Mandatory injunction seldom granted ; very 
 strong and urgent case necessary. 
 Id. 
 
45 
 
 Kinds. 
 
 Ex parte restraining- order ; 
 
 Temporary or preliminary pendente lite upon 
 notice or order to show cause. 
 
 Permanent. 
 
 Granting or dissolving the restraining order or 
 temporary injunction is largely a matter in the 
 discretion of the lower Court ; not generally in- 
 terfered with unless abuse apparent. 
 Parrot v. Floyd, 54 Cal., 534. 
 
 How Served. 
 
 In same manner as summons. 
 
 Edmonson v. Mason, 16 Cal., 386. 
 
 Steps Necessary. 
 
 Sworn complaint or affidavit. 
 C. C. P., 527. 
 
 Bond. 
 
 C. C. P., 529. 
 
 Motion to vacate. 
 C. C. P., 532-3. 
 
 Forms. 
 
 Dangers. 
 
 Liability upon the bond. 
 
 Counsel fees could be recovered on injunction 
 
 bond. 
 
 Ah Thaie v. Quan Wan, 3 Cal., 216. 
 
4 6 
 
 V. 
 
 ATTACHMENT. 
 C. C. P., 537 to 559. 
 
 VI. 
 
 RECEIVERS. 
 
 C. C. P., 304 ; 564-69 ; 1,270. 
 
 VII. 
 DEPOSIT IN COURT. 
 
 C. C. P., 572-4. 
 
 VIII. 
 
 INTERLOCUTORY JUDGMENTS. 
 
 Hayne on N. T. and Appeals, Arts. 184- 
 186. 
 
 IX. 
 
 REFERENCES. 
 
 In disbarment proceedings. 
 
 C. C. P., 298. 
 Before Court commissioner. 
 
 C. C. P., 259, Subdivision 2. 
 References after judgment. 
 
 C. C. P., 636. 
 General procedure and rules relating to. 
 
 C. C. P., 638-645. 
 
SECOND. 
 
 PROCEEDINGS SUBSEQUENT TO 
 JUDGMENT. 
 
 STAY. 
 
 Definition. 
 
 Stay of Execution. 
 
 Brief stay customary without bond. 
 Stay without bond until decision of motion of 
 new trial often granted. 
 
 Bond Necessary, 
 To Obtain Stay Pending Appeal. 
 
 On money judgment. 
 C. C. P., 942. 
 
 Judgment for delivery of documents. 
 C. C. P., 943. 
 
 Judgment directing execution of conveyance. 
 C. C. P., 944. 
 
 Judgment concerning real property. 
 C. C. P., 945. 
 
 Judgment concerning perishable property. 
 C. C. P., 949. 
 
 Other cases. 
 
 C. C. P., 949. 
 
 Itjsivbf..:t7 
 
 %,mx& 
 
4 8 
 
 Stay of Proceedings. 
 C. C. P., 946. 
 
 Costs. 
 
 C. C. P., 1,021-1,039. 
 
 Attorneys' fees not allowed as costs. 
 C. C. P., 1,021. 
 
 Costs allowed plaintiff of course upon a judg- 
 ment in his favor, in what cases. 
 C. C. P., 1,022. 
 
 Costs allowed defendant of course upon judg- 
 ment in his favor, in what cases. 
 C. C. P., 1,024. 
 
 In other cases discretionary. 
 C. C. P., 1,025. 
 
 Generally discretionary in equity cases. 
 Costs as condition of amendment. 
 C C. P., 473- 
 
 Tender to prevent costs. 
 C. C. P., 1,030. 
 
 Percentage in San Francisco. 
 Statutes 1866, page 66. 
 
 Cost Bill. 
 
 C. C. P., 1,033. 
 
 Taxing costs. 
 Id. 
 
49 
 
 Illustrations. 
 Customary Items. 
 
 Clerk's fees, filing complaint. 
 
 Notary fees affidavit to complaint. 
 
 Recording lis pendejis. 
 
 Abstract of title. 
 
 Fees for service of summons. 
 
 Mileage for service of summons. 
 
 Witness fees and mileage. 
 
 Fees for serving subpoenas. 
 
 Mileage for serving subpoenas. 
 
 Jury fees. 
 
 Shorthand reporter's fees. 
 
 Clerk's fees entering judgment. 
 
 Referee's fees. 
 
 Notary's fees affidavit to cost bill. 
 
 Special Costs Allowed in Certain Cases. 
 
 Execution. 
 
 C. C. P., 681-709. 
 
 Time of issue. 
 
 C. C. P., 681. 
 
 Form. 
 
 C. C. P., 682. 
 
 When returnable. 
 C. C. P., 683. 
 
5o 
 
 To whom issued. 
 
 C. C. P., 687. 
 What liable. 
 
 C. C. P., 688. 
 Exemptions. 
 
 C. C. P., 690. 
 Also homestead. 
 
 Civil Code, 1,240. 
 Also one thousand dollars worth of building' 
 and loan stock. 
 
 Statutes 1 89 1, page 256. 
 
 C. C, 643. 
 •Method of carrying into effect. 
 
 C. C. P., 691-699. 
 Redemption. 
 
 C. C. P., 700-707. 
 Claims of third parties. 
 
 C. C. P., 689. 
 
 Writ of assistance. 
 
 Montgomery z/. Tutt, 11 Cal., 191. 
 
 Proceedings in aid of execution. 
 C. C. P., 714.-72}. 
 
 Consist of the examination of the debtor, 
 parties owing him and other witnesses, for the 
 purpose of discovering assets. 
 
 Order of examination must be served .by 
 Sheriff. 
 
SYLLABUS OF LECTURE VI, 
 
 MAY lO, 1895. 
 
 SUBJECT: 
 
 THE MOTION FOR NEW TRIAL. 
 GROUNDS. 
 
 PAPERS. 
 
 HEARING. 
 
 ORDER. 
 
PROCEEDINGS SUBSEQUENT TO 
 JUDGMENT. 
 
 {Continued.) 
 
 MOTION FOR NEW TRIAL. 
 
 C. C. P., 656-662. 
 
 In discussing this matter I will draw almost 
 entirely from the excellent work on New Trials 
 and Appeals by the Hon. Robert Y. Hayne. 
 
 A new trial may be granted by the Court of its 
 own motion. 
 
 Duffy. Fisher, 15 Cal., 380. 
 Hayne, Art. 10, Chapter 662. 
 
 Three Stages of Proceeding on Motion 
 for New Trial. 
 
 Hayne, Art. 1 1 . 
 
 1. Giving notice of intention. 
 
 2. Preparation and authentication of papers. 
 
 3. Oral motion by counsel in open Court. 
 
 I. 
 
 Notice of Intention. 
 a. 
 Form and contents. 
 1. - Must give notice of intention ; 
 
52 
 
 2. Must designate grounds upon which mo- 
 tion will be made ; 
 
 3. Must state upon what class of papers or 
 records the motion will be made. 
 
 C C. P., 659. 
 
 b. 
 
 Time of giving. 
 
 1 . After verdict and within ten days ; 
 
 2. Within ten days after notice of decision. 
 
 C. C. P., 659. 
 
 Grounds. 
 C. C. P., 657. 
 
 IRREGULARITIES IN PROCEEDINGS. 
 
 Of Court ; 
 Of jury ; 
 
 Of adverse party ; 
 Any injurious abuse of discretion. 
 (C. C. P., 657, Subd. 1. 
 
 a. May occur before or during the trial. 
 
 Hayne, Art. 25. 
 
 b. May occur any time before the record or 
 filing of verdict or decision. 
 
 Id. 
 
 See Hastings v. Hastings, 31 Cal., 95. 
 
 c. Must be in a material matter. 
 
 d. Burden on moving party to show irregu- 
 larity ; this shown injury is presumed, and the 
 
53 
 
 burden is shifted to the successful party to show 
 that injury did not result. 
 
 Com. v. Roby, 12 Pick., 519. 
 
 People v. Backus, 5 Cal., 275. 
 
 People if, Brannigan, 21 Cal., 339, by 
 
 Field, Ch. J. 
 People v. Turner, 39 Cal., 375. 
 In the last named case a juryman attended a 
 public meeting where the defendant was bitterly 
 denounced. 
 
 The above are all criminal cases but the princi- 
 ple should apply to civil cases. 
 Hayne, Art. 26, page 97. 
 Johnson v. Root, 2 Cliff. C. C, 108. 
 Reason of rule ; corrupt practice usually secret 
 and carefully covered up ; impossible to enter 
 into juryman's mind and discover effect ; any 
 other rule would require a system of espionage 
 upon the jury inconsistent with sound policy. 
 Hayne, Art. 26, page 98. 
 Should be brought to the attention of the Court 
 in time to correct, if possible. Silence after injury 
 
 waives. 
 
 /</., Art. 27. 
 
 Illustrations of Irregularity. 
 
 Of the Court. 
 
 Making order in chambers which should be 
 made in open Court. 
 
 Bond v. Pacheco, 30 Cal., 532. 
 
54 
 
 Judge acting in a case in which he is disquali- 
 fied. 
 
 Estate of White, $j Cal., 192. 
 
 Court should not try issues of fact while issues 
 of law remain undisposed of. 
 Hayne, Art. 33. 
 
 Refusal of trial by jury where the party has a 
 right to demand it. 
 
 Cahoon v. Levy, 5 Cal., 294. 
 
 General issues should not be submitted to a 
 jury in equity cases. 
 
 Wingate v. Ferris, 50 Cal., 105. 
 Brandt v. Wheaton, 52 Cal., 434. 
 
 The Court should rule on questions of law as 
 they arise. 
 
 Practice of admitting evidence subject to sub- 
 sequent ruling condemned. 
 
 Sharp v. Lumley, 34 Cal., 614. 
 Mayo v. Marzeaux, 38 Cal., 445. 
 
 Change of ruling to prejudice of a party. 
 Monson v. Cooke, 5 Cal., 436. 
 
 In this case a referee admitted testimony against 
 objection, and afterwards, without giving the party 
 who offered the testimony a rehearing, excluded 
 the testimony. 
 
 Judge expressing opinion as to character of 
 witnesses. 
 
 Hayne, Art. 38. 
 
55 
 
 . After jury retire the Court should not hold 
 communication with them except in open Court 
 and in the presence of counsel. Neither Judge 
 nor officers of the Court should threaten the jury, 
 for instance : by stating to the jury that, if they do 
 not agree in five minutes, they will have to stay 
 out all nicrht. 
 
 Hayne, Art. 390. 
 
 People v. Hughes, 29 Cal., 258. 
 
 Irregularity in Receiving Verdict. 
 
 Hayne, Art. 40. 
 
 Marquard v. Wheeler, 52 Cal., 445. 
 In this case the verdict was brought in for an 
 amount " in gold coin," unauthorized ; the Court 
 sent out the jury to amend the verdict, and they 
 returned a larger verdict in order to cover the dif- 
 ference between gold coin and legal tender ; held 
 an irregularity. 
 
 Allowing the jury to have law books while de- 
 liberating. 
 
 Hayne, Art. 41. 
 
 Ford v. Thompson, 19 Cal., 118. 
 Trying a case in disobedience to the mandate 
 of the Supreme Court. 
 
 Argenti v. San Francisco, 30 Cal., 459. 
 Refusing a party inspection of document when 
 it is offered in evidence by his adversary. 
 Mitchell v. Hockett, 25 Cal., 539. 
 
56 
 
 Giving the jury in charge of a person not sworn 
 as required by law. 
 
 Jones v. State, 2 Blackford, 475. 
 
 The officer in charge of jury leaving them 
 
 alone. 
 
 People v. Moore, 41 Cal., 238, 
 
 Irregularity of Jury Distinguished from 
 Misconduct of Jury. 
 
 Hayne, Art. 42. 
 
 Party having knowledge of irregularity must 
 challenge or waives. 
 
 Hayne, Art. 43. 
 
 People v. Coffman, 24 Cal., 234. 
 
 Party must examine the jurors as to compe- 
 tency or cannot afterwards raise the point. 
 People v. Chung Lit, 17 Cal., 322. 
 
 If a juror on examination answers falsely as to 
 his qualifications, and this is discovered after 
 trial, it is ground for new trial. 
 Hayne, Art. 45. 
 People v. Plummer, 9 Cal., 312. 
 
 Since overruled as to criminal cases by 
 
 People v. Fair, 43 Cal., 146 ; 
 But is probably the law as to civil cases. 
 
 In People v. Plummer, two jurymen who had 
 passed satisfactory examinations were afterwards 
 
57 
 
 discovered to have said that the people should 
 take the defendant out of jail and hang him, etc. 
 
 Irregularity of Adverse Party. 
 
 Hayne, Chapter VI. 
 
 Attempts to pack the jury. 
 Attempts to influence the jury. 
 Attempts to suppress or manufacture evi- 
 dence. 
 
 Irregularities in Argument. 
 
 a. Attempts to get before the jury facts not 
 in evidence. 
 
 b. Attempts to get the jury to take instruc- 
 tions as to the law from other sources than 
 from the Judge. 
 
 c. Objection to such irregularities to be made 
 at the time they occur. 
 
 And the Court to interpose. 
 
 Abuse of Discretion. 
 Hayne, Chapters VIII and IX. 
 
 As to Amendment and Continuance. 
 
 Misconduct of Jury. 
 
 C. C. P., 657, Subdv. 2. 
 Hayne, Chapter X. 
 
*s 
 
 Sleeping during the trial. 
 
 Jurymen under the influence of liquor and on 
 the verge of delirium tremens. 
 
 Taking forbidden documents to the jury room. 
 
 Receiving information through improper chan- 
 nels. 
 
 Holding communications with third persons 
 during the trial or while deliberating. 
 
 Jurymen drinking liquor. 
 
 In People v. Gray, 61 Cal., 164, it appears that 
 during confinement beginning in the evening of 
 June 3d and ending on the morning of June 12th, 
 the jury procured at their own expense and con- 
 sumed from time to time seventeen and a-half gal- 
 lons of beer, two gallons of wine and three bot- 
 tles of claret and some whiskey at each meal ; a 
 new trial was granted because it appeared that 
 this improper imbibing incapacitated one of the 
 jurors. 
 
 Arrival at verdict by chance. 
 Hayne, Art. 71. 
 
 Conner vs. Palmer, 23 Cal., 47. 
 In this case two jurors unable to agree tossed a 
 coin and agreed by rule of heads and tails ; ver- 
 dict set aside. 
 
 Levy v. Brannan, 39 Cal., 489. 
 In this case the jurymen drew straws as to 
 whether a verdict should be $1,500 or $i,oco, and 
 
59 
 
 the lon^r straw was drawn and the verdict was 
 made $1,500. Verdict set aside. 
 
 Any course which does away with mutual con- 
 sultation and mutual deliberation is bad. 
 
 For instance : where each juryman sets down 
 an amount and they are added together under an 
 agreement among the jurymen that the quotient 
 will be taken as the verdict. The verdict so ar- 
 rived at will be set aside. 
 
 Wilson v. Berryman, 5 Cal., 45. 
 
 Impeaching Verdict by Evidence of Jury- 
 men. 
 
 Cannot be done except where verdict is arrived 
 at by chance. 
 
 Hayne, Art. 73. 
 
 Verdict may be sustained by the evidence of 
 jurymen. 
 
 Hayne, Art. 74. 
 
 Acccident, Surprise, Etc. 
 
 C. C. P., 657, Subd. 3. 
 Hayne, Chapter XI. 
 
 Sudden illness of attorney. 
 Excusable want of preparation for trial. 
 Unexpected evidence of witnesses. 
 Surprise at testimony of one's own witnesses. 
 Surprise at evidence introduced by adverse 
 party. 
 
6o 
 
 Inadvertence or Unforeseen Rulings. 
 
 For instance : where a document is introduced in 
 evidence on two previous trials suddenly ruled 
 out and the party not permitted time to get other 
 evidence. 
 
 Negligence or ignorance of the law cannot 
 avail the party surprised. 
 
 Should apply for continuance. 
 Hayne, Art. 84. 
 
 It must be shown that a different result would 
 be likely on a new trial. 
 Id., Art. 85. 
 
 Newly Discovered Evidence. 
 
 C. C. P., Sec. 657, Sub. 4. 
 Hayne, Ch. XII. 
 
 1. The evidence, and not merely its mater- 
 iality, must be newly discovered. (Berry v. Metz- 
 ler, 7 Cal., 418.) 
 
 2. Must not be merely cumulative. (Millard 
 v. Hathaway, 27 Cal., 147.) 
 
 Definition of cumulative evidence, C. C. P., Sec. 
 1,838. It is: "Additional evidence of the same 
 character to the same point." 
 
 3. Must be such as would render a different 
 result probable in case of a new trial. (Merk v. 
 Gelzhaeuzer, 50 Cal., 632.) 
 
6i 
 
 4. Reasonable diligence must have been used 
 in preparing for the trial. (Hayne, Art. 92.) 
 
 Reasonable diligence must be affirmatively 
 shown. (People v. Ah Ton, 53 Cal., 741.) 
 
 5. The facts upon which the motion is based 
 must be shown by the best evidence of which the 
 case admits. (Hayne, Art. 93.) 
 
 For example, the fact that the party did not 
 discover that certain witnesses would testify so 
 and so, cannot be proved by affidavits alone of 
 the witnesses that they did not tell the party until 
 after the trial. The affidavit of the party that he 
 did not know must be also introduced. (Baker 
 v. Josephs, 16 Cal., 180.) 
 
 The party's own affidavit as to what the new 
 witnesses would testify to is not sufficient, it being 
 only hearsay ; their own affidavits must be pro- 
 duced. (Jenny Lind Company v. Bower, 1 1 Cal., 
 
 199) 
 
 The affidavits must state fully enough what the 
 facts of the case are to show the relevancy of the 
 newly discovered evidence. (People v. Voll, 43 
 Cal., 168.) 
 
 Excessive Damages. 
 
 C. C. P., Sec. 657, Sub. 5. 
 Hayne, Ch. XIII. 
 
 Must be so excessive as to indicate passion or 
 prejudice. 
 
62 
 
 Illustrations, amounts held not excessive : 
 
 Taylor v. California Stage Company, 6 Cal., 
 229 : $5,000, breaking plaintiff's legs. 
 
 Weaver v. Page, 6 Cal., 681 : $15,000 for ma- 
 licious prosecution. 
 
 Aldrich v. Palmer, 24 Cal., 516 : $2,250 for in- 
 jury to plaintiff's foot, whereby he lost two toes 
 and acquired a permanent limp. 
 
 Boyce v. California Stage Company, 25 Cal., 
 467 : $16,000 for damages of a very serious na- 
 ture. 
 
 Kinsey v. Wallace, 36 Cal., 481 : $7,600 for 
 malicious attachment held excessive, and reduced 
 to $3,000. 
 
 Wilson v. Fitch, 41 Cal., ^y^: $7,500 for libel. 
 
 Myers v. San Francisco, 42 Cal., 216: $5,000 
 for death of child. 
 
 Russell v. Dennison, 45 Cal., 340, also 50 Cal., 
 243 : $7,033, milicious prosecution, first held not 
 excessive, afterwards cut down one-half. 
 
 Beeson v. Green Mountain G. M. Co., 57 Cal., 
 20 : $8,000 to widow for death of husband. 
 
 Nehrbas v. C. P. R. R. Co., 62 Cal., 320: 
 $10,800 to father for death of five children. 
 
 (This is the San Lorenzo Crossing case.) 
 
 Insufficiency of the Evidence. 
 
 C. C. P., Sec. 657, Sub. 6. 
 Hayne Ch., XIV. 
 
63 
 
 Where there is a conflict the Court will not 
 generally interfere, but if the Court believes the 
 verdict wrong it is its duty to set it aside in spite 
 of conflict. 
 
 Curtiss v. Starr, 85 Cal., 376. 
 
 That It Is Against Law. 
 
 C. C. P., Sec. 657, Sub. 6. 
 Hayne, Art. 99. 
 
 This does not mean that the judgment is 
 against law ; 
 
 It does not mean that the verdict or other deci- 
 sion is unsupported by the evidence ; 
 
 It apparently applies to cases where the ver- 
 dict is against instruction. 
 
 Also in some cases said to apply to a case 
 where findings of the Judge are defective in omit- 
 ting to dispose of some material issue. 
 Brown v. Burbank, 59 Cal., 535. 
 
 Errors in Law Occurring at the Trial. 
 
 C. C. P., Sec. 657, Sub. 7. 
 Hayne, Ch. XVI, XVII, XVIII. 
 
 Improper ruling as to admissibility of evidence. 
 Exception must be specific and pointed. 
 Erroneous ruling may be corrected later. 
 Erroneous ruling on motion for non-suit. 
 Erroneous instructions. 
 
6 4 
 
 Instructions must not submit matters of law. 
 Must not charge as to matters of fact. 
 Must not express opinion as to credibility of 
 witness. 
 
 Must not charge as to irrelevant principles of 
 law. 
 
 Instructions must not be contradictory. 
 
 Refusal to charge. 
 
 Objections to instructions and refusals to in- 
 struct must be specific, and must be made before 
 the jury retires. 
 
 II. 
 
 PREPARATION AND AUTHENTICA- 
 TION OF PAPERS. 
 
 Affidavits. 
 Bill of Exceptions. 
 Statement of the Case. 
 C. C. P., 659. . 
 
 III. 
 
 THE HEARING-. 
 C. C. P., 660. 
 
 Order Disposing of the Motion. 
 Hayne, Ch. XXII. 
 The Court may grant or refuse new trial on 
 conditions, that is, imposing terms. 
 
 Rice v. Gashirie. 13 Cal., 54 ; also People 
 v. Burns, 78 Cal., 645. 
 
Form of order granting a new trial. 
 
 Better to have it general. 
 
 If it is specific and the grounds are wrong, it 
 may be set aside, though this rule is not absolute. 
 
 Effect of granting. 
 
 Sets aside the judgment and verdict. 
 
 If an appeal is pending from the judgment the 
 appeal falls. 
 
SYLLABUS OF LECTURE VII 
 
 MAY 15, 1895. 
 
 SUBJECT: 
 
 APPEAL. 
 
 THE SUPREME COURT. 
 
 ITS OFFICERS, RECORDS AND FILES. 
 
 PROCEDURE. 
 
 BEFORE AND AFTER JUDGMENT. 
 
APPEAL. 
 I. 
 
 From inferior tribunals to the Superior Court. 
 (C. C. P., Sees. 974 to 980.) 
 
 In practice such an appeal is usually a trial de 
 novo. 
 
 II. 
 
 To the Supreme Court. 
 
 A. 
 
 The Constitution and jurisdiction of the 
 Supreme Court has already been dealt with. (See 
 Lecture II.) 
 
 B. 
 
 Officers of the Supreme Court. 
 
 (Aside from the Judges.) 
 
 Clerk. 
 
 Constitution, Art. VI, Sec. 14; Pol. Code, 
 
 Sees. 749, 750. 75 2 -757- 
 Deputy Clerks. 
 
 Pol. Code, Sees. 751, 756. 
 
 The Clerk of the Supreme Court is elected by 
 the people. 
 
 Constitution, Art. VI, Sec. 14. 
 
 Two Secretaries and two Bailiffs appointed by 
 the Court. 
 
 C. C. P., Sees. 265, 266. 
 
68 
 
 Phonographic Reporters. 
 Pol. Code, Sec. 770. 
 
 Reporter of Decisions, appointed by the Gover- 
 nor. 
 
 Pol. Code, Sees. 767, 771-778. 
 
 The Justices supervise the preparation of re- 
 ports and may change and correct the proof 
 
 sheets. 
 
 Pol. Code, 774, 775. 
 
 The reports are to be published under the su- 
 pervision of the Secretary of State by contract. 
 Pol. Code, Sees. 778-782. 
 
 C. 
 Records and Files. 
 
 In the custody of the Clerk. 
 Record Books. 
 
 General Analytical Index. Description, pur- 
 poses, illustration. 
 
 Register. Description, purposes, illustration. 
 
 County Book, also called Calendar. 
 
 Rough Minute Books ; Engrossed or Smooth 
 Minute Book. Description, purposes and illus- 
 tration. 
 
 Manifold Book. Description, purposes and 
 illustration. 
 
 Judgment Book. Description, purposes and 
 illustration. 
 
 Remittitur Book. Description, purposes and 
 illustration. 
 
6 9 
 
 Decisions. 
 
 History of " California Decisions." (William- 
 son v. Tobey.) 
 
 The Files. 
 
 Stipulations. 
 
 Writs. 
 
 Orders. 
 
 The transcript. 
 
 Briefs, or points and authorities. 
 
 Petition for re-hearing. 
 
 Decisions. 
 
 D. 
 
 In what cases appeals may be taken to the 
 Supreme Court. 
 
 C. C. P., 963. 
 
 Time within which appeal must be taken. 
 C. C. P., Sec. 939. 
 
 F. 
 
 Parties to appeal. 
 Any aggrieved party may appeal. 
 Party appealing known as the appellant. 
 Adverse party known as the respondent. 
 C. C. P., Sec. 938. . 
 
7o 
 
 THE JUDGMENT. 
 
 All proceedings on appeal properly grouped 
 and classified about the judgment. 
 
 Of What the Judgment May Consist. 
 
 C. C. P., Sec. 53. 
 
 May affirm, or reverse, or modify any judgment 
 or order appealed from, and may direct a proper 
 judgment or order to be entered, or direct a new 
 trial or further proceedings to be had. 
 
 ONE. 
 
 Proceedings Prior to Judgment. 
 I. 
 
 Proceedings in the Lower Court. 
 
 1. To give the Supreme Court jurisdiction. 
 
 a. Notice of appeal. 
 
 b. Undertaking to perfect appeal. 
 
 2. To preserve the status quo pending appeal. 
 
 a. Method of staying proceedings. 
 
 b. Method of staying execution. 
 
 3. To properly present the questions involved 
 to the Appellate Court. 
 
 a. Making up the transcript. 
 
 b. Authentication of the transcript. 
 
 II. 
 Proceedings in the Supreme Court. 
 
 1. Filing transcript. 
 
7' 
 
 2. Motions to dismiss. 
 
 3. Motions for diminution of record. 
 
 4. Briefs. 
 
 5. Argument and submission. 
 
 TWO. 
 
 Proceedings Subsequent to Judgment. 
 
 I. 
 
 Proceedings in the Supreme Court. 
 
 a. Petition for rehearing - . 
 
 b. Rehearing. 
 
 c. Remittitur. 
 
 II. 
 
 Proceedings in the Lower Court. 
 
 a. Costs. 
 
 b. Carrying the remittitur into effect. 
 
 ONE. 
 
 Proceedings Prior to Judgment. 
 I. 
 
 Proceedings in the Lower Court. 
 
 1. 
 
 To give the Supreme Court jurisdiction. 
 a. Notice of appeal. 
 
 C. C. P., Sec. 940. 
 Form. 
 Contents. 
 
72 
 
 May contain appeals from several orders in the 
 same case, but must clearly distinguish, each. 
 Peoples. Center, 61 Cal., 191. 
 
 On whom served. 
 
 The only safe rule is to serve on all the par- 
 ties ; although lack of service upon a party who is 
 in no way interested in the appeal, and would not 
 be affected by an alteration of the judgment, is 
 held unnecessary ; but there is too great risk in 
 assuming to decide such a question. 
 
 If necessary party not served, appeal will be 
 dismissed. 
 
 Service must be upon attorney of record. 
 C. C. P., Sec. 1,015. 
 
 Service upon attorney other than attorney ol 
 record is not sufficient. 
 
 Whittle v. Renner, 55 Cal., 395. 
 
 Effect of death of party before service of notice 
 of appeal revokes his attorney's authority ; ser- 
 vice on former attorney insufficient. 
 Judson v. Love, 35 Cal., 463. 
 
 Failure to serve on a necessary party may ren- 
 der the appeal ineffectual only as to him ; 
 But may invalidate the entire appeal. 
 Senter v. De Bernal, 38 Cal., 640. 
 
 Manner of service. 
 
 C. C. P., Sees 1011-1013. 
 
73 
 
 Proof of service. 
 Ibid. 
 
 b. $300 undertaking for costs and dam 
 
 ages. 
 
 C. C. P., 940. 
 
 Time within which must be filed. 
 
 Ibid. 
 Must have two sureties. 
 
 C. C. P., 941. 
 
 Contents ; must undertake to the effect that 
 the appellant will pay all damages and costs 
 which may be awarded against him on the appeal, 
 or on the dismissal thereof, not exceeding $300. 
 
 One undertaking for two appeals. 
 
 This is allowable in a case of appeal from judg- 
 ment and order denying or granting motion for 
 new trial. 
 
 Chester v. Bakersfield Town Hall Associa- 
 tion, 64 Cal., 42. 
 
 But not in other cases. 
 
 See Corcoran v. Desmond, 71 Cal., 100. 
 
 If bond is defective, new bond may be filed in 
 the Supreme Court. 
 
 C. C. P., Sec. 954 ; Hayne, Art. 214. 
 
 11. 
 
 To preserve the status quo pending appeal. 
 Undertakings to stay proceedings and stay 
 execution. 
 
74 
 
 a. Undertakings to stay proceedings. 
 
 b. Undertakings to stay execution. 
 This has already been treated of. 
 
 in. 
 
 For the purpose of properly presenting to the 
 Appellate Court the questions involved. 
 
 The record on appeal. 
 
 Making up the transcript. 
 
 The transcript is the duly authenticated copy of 
 the record below. 
 
 Hayne, Art. 265. 
 
 Papers necessary on appeal from judgment. 
 C. C. P., Sec. 950. 
 
 On appeal from judgment on appeal or order 
 
 not order granting or denying motion for new 
 
 trial. 
 
 C. C. P., Sec. 951. 
 
 On appeal from order granting or denying mo- 
 tion for new trial. 
 
 C. C. P., Sec. 952. 
 
 Methods of certifying copies and undertakings. 
 C. C. P., 953- 
 
 Rules as to the contents of transcripts. 
 Hayne, Art. 265. 
 
 1. Must not contain any paper which is not a 
 part of the record on appeal ; such papers, if in- 
 serted, are disregarded. 
 
75 
 
 2. Must contain all papers which constitute 
 the record on appeal, and, if not, motion to dis- 
 miss may be made. 
 
 3. Papers may be abbreviated and condensed. 
 (See rules as to all this laid down by Sawyer. 
 
 J., in Estate of Boyd, 25 Cal., 513 ; and Marriner 
 v. Smith, 27 Cal., 653.) 
 
 Clerk cannot certify to abstract of records, ex- 
 cept as to formal parts, such as titles, etc. 
 
 Can be omitted only by stipulation of the par- 
 ties. 
 
 The transcript must be complete in itself, and 
 cannot be helped by reference to a transcript in 
 another case. 
 
 Hayne, Art. 266 ; Gates v. Walker, 35 
 Cal., 290. 
 
 Rules of Supreme Court. 
 
 As to the manner of printing transcript. 
 Rule 7. 
 
 As to index and arrangement, Rule 8. 
 As to authentication and service, Rule 1 1. 
 As to time of filing, Rule 2, Sub. 1. 
 Extension of time, Rule 2, Sub. 3. 
 Evidence of service, Rule 2, Sub. 2. 
 Number of copies to be filed, Rule 2, Sub. 6. 
 
76 
 
 II. 
 Proceedings in the Supreme Court. 
 
 i. a. Filing transcript. 
 See rules above cited. 
 b. Motions to dismiss. 
 See Supreme Court Rules 5 and 6. 
 Grounds for dismissal. Illustrations. 
 
 Hayne, Art. 272. 
 Appeal on matter not within the Court's ap- 
 pellate jurisdiction. 
 
 Stone v. Elkins, 24 Cal., 125. 
 Appeal not taken within the time allowed by 
 non-appealable law. 
 
 From non-appealable order or judgment. 
 
 Larrabee v. Selby, 52 Cal., 508. 
 Appeal in the name of a dead man. 
 Sheldon v. Dalton, 57 Cal., 19. 
 Second appeal taken while prior appeal on the 
 same matter still pending. 
 
 Hill v. Finnegan, 54 Cal., 312. 
 Transcript not filed in accordance with the rules. 
 
 Hayne, Art. 273. 
 No appearance when cause called for argument. 
 Ibid., 278. 
 
 c. Objections to transcript ; diminution of 
 
 record. 
 
 Hayne, Arts. 270, 271 ; Supreme Court 
 
 Rules 14-15. 
 
77 
 
 d. Briefs, or points and authorities. 
 Supreme Court Rule 2, Sub. 4, Sub. 5. 
 
 Sub. 6; Rule 12, Sub. 2 ; Rule 18. 
 
 e. Oral argument and submission. 
 
 Supreme Court Rules 3 and 19. 
 
 Certain Familiar Rules Governing the Su- 
 preme Courts in Considering and De- 
 ciding Cases Submitted to it. 
 
 Hayne, Arts. 278-294. 
 A party who does not appeal cannot avail him- 
 self of errors in the record, or be affected by an 
 appeal to which he is not a party. 
 
 Hayne, Art. 281. 
 
 A party will not be heard on appeal from a 
 judgment or order to which he consented in the 
 lower Court. 
 
 Ibid., Art. 282. 
 
 The Supreme Court is confined to the record 
 before it, which it has no power to change. 
 Ibid., Art. 283. 
 
 A decision which is right will not be reversed 
 because based upon a wrong reason. 
 Ibid., Art. 284. 
 If it does not appear upon what ground the de- 
 cision was made, it will be presumed to have been 
 made upon a ground which can be supported. 
 Ibid. 
 
7* 
 
 The presumption is in favor of the action of the 
 Court below, and the party alleging error must 
 make it affirmatively appear. 
 Ibid., Art. 285. 
 
 A judgment or order will not be reversed for 
 errors which were not injurious to the appellant. 
 Ibid., Art. 286. 
 
 Where error is shown injury is presumed, un- 
 less the contrary appears affirmatively. 
 Ibid., Art. 287. 
 
 Where there is a substantial conflict in the evi- 
 dence the Supreme Court will not disturb the de- 
 cision of the Court below. 
 Ibid., Art. 288. 
 An exercise of the discretion of the Court be- 
 low will be disturbed only when abused. 
 Ibid., Art. 289. 
 
 Stare Decisis. 
 
 This rule is that which binds a Court to follow 
 its previous decisions. It is based upon the prin- 
 ciple that the certainty of the rule is of more im- 
 portance than the reason of it. The rule is one 
 of policy, not unbending. 
 Ibid., Art. 290. 
 
 If a decision be clearly erroneous, and rights 
 have not grown up under it to any extent, it may 
 be reversed. 
 
79 
 
 Law of the Case. 
 
 However erroneous the decision of the Court 
 may be, it must be adhered to in all subsequent 
 stages of the same case. 
 Ibid., Art. 291. 
 
 Damages for frivolous appeal. 
 C. C. P., Sec. 957. 
 
 TWO. 
 
 1. Proceedings Subsequent to Judgment. 
 
 1. Proceedings in the Supreme Court. 
 
 a. Petition for rehearing-. 
 Supreme Court Rule 28, 30. 
 
 b. Rehearing. 
 
 c. Remittitur. Form and illustration. 
 
 2. Proceedings in the Court below. 
 
 A. 
 Costs. 
 
 In discretion of the Appellate Court. 
 C. C. P., Sec. 1,027. 
 
 In other cases. 
 
 See Supreme Court Rule 23. 
 
 Cost bill. 
 
 C. C. P., Sec. 1,034. 
 
8o 
 
 Chief Items. 
 
 Clerk's fees. 
 Printing of Transcript. 
 
 Attorney's fees and costs of printing briefs can- 
 not be recovered. 
 
 Motion to retax maybe made in the Court below. 
 
 B. 
 
 Carrying the Remittitur into Effect. 
 
 Duties of clerks as to entries. 
 C. C. P., Sec. 958. • 
 
SYLLABUS OF LECTURE VIII, 
 
 MAY 17, 1895. 
 
 ■ SUBJECT: 
 
 EXTRAORDINARY METHODS OF RE- 
 VIEW. 
 
 SPECIAL PROCEEDINGS. 
 
 CERTIORARI. 
 
 MANDAMUS. 
 PROHIBITION. 
 CONCLUSION. 
 
txtraorflinary or Summary Methods of Ijeview, 
 
 AS DISTINGUISHED FROM NEW TRIAL AND APPEAL IN- 
 CLUDED UNDER -SPECIAL PROCEEDINGS" 
 IN THE CODE. 
 
 SPECIAL PROCEEDINGS. 
 
 Certiorari, mandamus, prohibition. 
 C. C. P., Sees. 1,067-1,110. 
 
 Election contests. 
 
 C. C. P., Sees. 1,111-1,127. 
 
 Summary proceedings. 
 
 C. C. P., Sees. 1,132-1,179. 
 
 Enforcing liens. 
 
 C. C. P., Sees. 1, 1 So -1,206. 
 
 Contempt proceedings. 
 
 C. C. P., Sees 1,209-1,222. 
 
 Voluntary dissolution of corporations. 
 C. C. P., Sees. 1,227-1,233. 
 
 Eminent domain. 
 
 C. C. P., Sees. 1,237-1,263. 
 
 Escheated estates. 
 
 C. C. P., Sees. 1,269-1,272. 
 
 Proceedings to change name. 
 C. C. P., Sees. 1,275-1,279. 
 
§4 
 
 Arbitration. 
 
 C. C. P., Sees. 1,281-1,280. 
 
 Probate proceedings. 
 
 C. C. P., Sees. 1,294-1,809. 
 
 Proceedings for appointment of sole trader, 
 C. C. P., Sees. 1,811-1,821. 
 
 Insolvency proceedings. 
 C. C. P., Sec. 1,822. 
 
 Criticism of the Code Definitions, Ar- 
 rangement and Classification in. 
 this Particular. 
 
 The Division of the Code devoted to "Special 
 Proceedings" opens with the following definition : 
 "The party prosecuting a special proceeding is 
 known as the plaintiff, and the adverse party as 
 the defendant." 
 
 C. C. P., Sec. 1,063. 
 
 This has no sense or meaning in connection 
 with, or application to, the following, which the 
 Code, nevertheless, classifies as " Special Pro- 
 ceedings, " namely : 
 
 Contempt. 
 
 Voluntary Dissolution of Corporation. 
 
 Escheating Estates. 
 
 Change of Name. 
 
 Arbitration. 
 
«5 
 
 Probate Proceedings. 
 
 Sole Tradership Proceedings. 
 
 Insolvency. 
 
 The Code classifies under " Special Proceed- 
 ings " the following incongruous classes of pro- 
 ceedings : 
 
 Extraordinary Methods of Review, including 
 Certiorari, Mandamus and Prohibition. 
 
 Actions for special purposes ; for instance, un- 
 lawful and forcible entry and detainer ; actions to 
 enforce liens of mechanics and material men ; 
 contested elections ; eminent domain ; 
 
 If these actions are properly called " Special 
 Proceedings," certiorari, mandamus and prohibi- 
 tion certainly should not be, for they are entirely 
 unlike in purpose and form. 
 
 (Query : Why should not actions to enforce 
 liens against ships be put here ? See C. C. P., 
 Sees. 813-827.) 
 
 Most of the sections of the Code of Civil Pro- 
 cedure relative to these matters belong in the 
 Civil Code ; they establish substantive rights, 
 which, being determined, are enforcible by ordi- 
 nary actions. 
 
 Actions in Rem ; 
 
 For instance : Voluntary dissolution of cor- 
 poration, escheated estates, change of name, pro- 
 
bate proceedings, sole tradership and insolvency 
 proceedings. 
 
 (Query : Why are not quo warranto proceed- 
 ings classified here? See C. C. P., Sees. 802— 
 810.) 
 
 They are as much "Special Proceedings" as 
 an election contest; they are used, for instance, 
 to enforce dissolution of a corporation ; why 
 should they not be classified where voluntary 
 proceedings for dissolution of corporation are 
 placed ? 
 
 Confession of judgment, Submission of cause 
 on statement, Arbitration. 
 
 Contempt Proceedings, Proceedings to Dis- 
 charge Prisoner. 
 
 These have no. place under "Special Proceed- 
 ings ;" the former belongs under the Powers of 
 the Courts, the latter under Executions, or Ar- 
 rest and Bail. If properly placed here, then why 
 should not Habeas Corpus proceedings be classi- 
 fied here ? 
 
 These outlines deal in detail only with sum- 
 mary methods of review, including : 
 Certiorari. 
 Mandamus. 
 Prohibition. 
 Writ of Error. 
 Other Supreme Court Writs. 
 
87 
 
 WRIT OF REVIEW OR CERTIORARI. 
 
 C. C. P., Sees. 1,067-1,077. 
 
 What Courts Have Jurisdiction. 
 The Supreme Court. 
 
 Constitution, Art. VI, Sec. 4. 
 C. C. P., Sees. 51 ; 1,068. 
 
 The Superior Court. 
 
 Constitution, Art. VI, Sec. 5. 
 C. C. P., Sec. 76, Sub. 5. 
 
 Proceedings Grouped About the Judgment. 
 
 Purpose of the Judgment in Review, or Certio- 
 rari Proceedings. 
 
 To affirm, annul or modify proceedings of an in- 
 ferior tribunal, board or officer. 
 
 Loose definition in the Code. 
 C. C. P., Sec. 1,068. 
 
 According to it, the writ ought not to issue un- 
 less the tribunal had actually exceeded its jurisdic- 
 tion, in which case there could not be a judgment 
 affirming- the action of the tribunal. 
 
 I. 
 
 Proceedings Prior to Judgment. 
 
 a. The application, its form and contents. 
 
 b. Notice, or order to show cause ; form, con- 
 tents and service. 
 
c. The writ ; form, contents, service and re- 
 turn. 
 
 d. The return ; form and contents. 
 
 e. The hearing. 
 
 II. 
 
 Proceedings Subsequent to Judgment. 
 
 a. Transmission of judgment to the tribunal, 
 board or officer affected. 
 
 b. Appeal. 
 
 l; 
 
 Proceedings Prior to Judgment, 
 A. 
 
 The Application. 
 
 Contents. 
 
 i. Title of the Court. 
 2. Title of the cause. 
 Names of parties. 
 
 Plaintiff is the party beneficially interested. 
 C. C. P., Sec. 1,069. 
 
 The party defendant. 
 
 a. An inferior tribunal, as a Court or a Judge. 
 Purely ministerial act of the Judge is not re- 
 viewable on certiorari. 
 
 People v. Bush, 40 Cal, 344. 
 
 Judge's appointment to fill a vacancy in Board 
 of Supervisors not reviewable. 
 
&9* 
 
 b. Board. For instance, Board of Supervisors. 
 
 People v. Supervisors of El Dorado Coun- 
 ty, 8 Cal., 61. Action of Supervisors 
 allowing - a claim against the county 
 reviewed. 
 
 c. Officer. For instance, Board of Equalization. 
 
 People v. Goldtree, 44 Cal., 325. In this 
 case a modification of an assessment 
 was reviewed. 
 
 Board of Education. 
 
 People v. State Board of Education, 49 
 Cal., 684. The action of the State 
 Board of Education changing the text 
 books was annulled. 
 
 City Assessor. 
 
 People v. Bond, 10 Cal., 563. Action of a 
 City Assessor in adding an unauthor- 
 ized item to the tax list annulled on 
 certiorari. 
 
 3. Statement of the Case. 
 Requisites. 
 Must show 
 
 That the act to be reviewed was in excess of 
 the defendant's jurisdiction. 
 C. C. P., Sec. 1,068. 
 
 That the act was done in exercise of judicial 
 and not ministerial functions. 
 Ibid. 
 
9° 
 
 That it is not sought merely to correct errors 
 or irregularities. 
 
 Ibid., Sec. i, 068 ; Dezerillo v. Superior 
 Court, 59 Cal., 180. In this case an 
 attempt was made to review an order 
 of the Superior Court striking out the 
 bill of costs. 
 
 That there is no appeal. 
 
 C. C. P., Sec. 1,068. Gray v. Schupp, 4 
 Cal., 186. 
 
 That there is no plain, speedy and adequate 
 remedy at law. 
 
 4. Verification ; must be by affidavit. 
 C. C. P., Sec. 1,069. 
 
 B. 
 The Notice or Order to Show Cause. 
 C. C. P., Sec. 1,069. 
 
 C. 
 
 The Writ. 
 
 1. To whom directed. The tribunal, board 
 or officer, or any other person having custody of 
 the record or proceeding to be reviewed. 
 
 2. Command. 
 
 C C. P., Sec. 1,071. 
 
 Requires defendant to certify full transcript of 
 
the proceedings to be reviewed to the Court issuing 
 the writ, at a specified time and place. 
 
 3- Stay. 
 
 May be omitted. 
 
 C. C. P., Sec. 1,072. 
 
 Service of the Writ. 
 
 Like a Summons unless otherwise directed, 
 C. C. P., Sec. 1,073. 
 
 D. 
 
 The Return. 
 C. C. P., Sees. 1,070, 1. 07 1, 1,075. 
 
 E. 
 
 The Hearing. 
 C. C. P., Sec. 1,075. 
 Limits ; 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. 
 
 II. 
 Proceedings Subsequent to Judgment. 
 
 A. 
 
 Transmission of the Judgment to the Defendant. 
 C. C. P., Sec. 1,076. 
 
 B. 
 
 Appeal. 
 C. C. P., Sec. 939. 
 
9 2 
 
 Judgment roll. 
 
 C. C. P., See. 1,077. 
 
 Recent illustration : Matter of Shortridge, 99 
 Cal, 526, proceedings of Superior Court of Santa 
 Clara County fining publisher of the San Jose * 
 Mercury for violating an order prohibiting publi- 
 cation of divorce proceedings set aside and 
 annulled on certiorari as an unconstitutional 
 interference with the right of free speech and the 
 liberty of the press. 
 
 THE WRIT OF MANDAMUS. 
 C. C. P., Sees. 1,084-1,097. 
 
 What Courts Have Jurisdiction. 
 
 Any Court except Justices' or Police Court. 
 Constitution, Art. VI, Sees. 4 and 5. 
 C. C. P., Sees. 50, 51, 75-79 ; 1,085. 
 
 Proceedings Grouped About the Judg- 
 ment. 
 
 The purpose ofthe judgment. 
 
 To compel any inferior tribunal, corporation, 
 board or person to perform an act which the law 
 specially enjoins as a duty resulting from office, 
 trust or station ; or to compel the admission of a 
 party to the use and enjoyment of a right or office 
 to which he is entitled, and from which he is un- 
 
93 
 
 lawfully precluded by such inferior tribunal, cor- 
 poration, board or person. 
 C. C. P., Sec. 1,085. 
 
 I. 
 
 Proceedings Prior to Judgment. 
 
 I. 
 
 ^. Application ; its form and contents. 
 
 b. Notice. 
 
 €. The writ ; its kinds, form and contents, 
 
 d. Manner of service. 
 
 e. The answer ; its form and contents. 
 
 f. Objections to the answer. 
 
 g. The trial. 
 
 II. 
 
 Proceedings Subsequent to Judgment, 
 
 a. Reference to determine damages. 
 
 b. Costs. 
 
 €. Execution, 
 
 d. Peremptory mandate. 
 
 e. Method of enforcement. 
 
 f. New trial. 
 g. Appeal. 
 
94 
 
 I. 
 
 Proceedings Prior to Judgments 
 
 A. 
 
 Application. 
 Contents, 
 i. Title of Court. 
 2. Title of cause. 
 Names of the parties. 
 
 The plaintiff is the party beneficially interested, 
 C. C. P., Sec. i,o86. 
 
 The defendant. 
 Inferior tribunal. 
 Corporation. 
 Board. 
 
 
 
 Person. 
 
 C. C. P., Sec: 1,085. 
 
 Does not issue to a private person, but only to 
 a person or body exercising public or quasi pub- 
 lic functions. 
 
 Hayne, Art. 322. 
 
 " No officer, however high, is above the law, 
 and when duties are imposed upon him in regard 
 to which he has no discretion, and in the exercise 
 of which individuals have a direct pecuniary inter- 
 est, and there is no other plain, speedy and ade- 
 
95 
 
 quate remedy, he can be required to perform 
 those duties by compulsory process of mandamus." 
 Field, C. J., in McCauley v. Brooks, 16 
 Cal., 41. 
 
 Illustrations. 
 
 Secretary of State of the United States. 
 Marbury v. Madison, 1 Cranch., 137. 
 
 Postmaster General of the United States. 
 
 Kendall v. United States, 12 Peters, 524. 
 
 The Secretary of the Interior. 
 
 United States v. Schurz, 12 Otto, 379. 
 
 City Council. 
 
 Bishop v. Oakland, 58 Cal., 574. 
 
 A Judge. 
 
 Harper v. Freelon, 6 Cal , 76. 
 
 Directors of the Hastings' Law School. 
 Foltz v. Hoge, 54 Cal., 28. 
 
 President and Secretary of a private corpora- 
 tion. 
 
 People v. Crockett, 9 Cal., 113. 
 
 3. Statement of the case 
 Must show 
 
 That the purpose of the writ is not to revise 
 discretion or control judicial action. 
 
 Tilden v. Sacramento County, 41 Cal., 72. 
 
96 
 
 That there is no plain, speedy and adequate 
 
 remedy at law. 
 
 C. C. P., Sec. t,o86 ; Kimball v. Union 
 
 Water Co., 44 Cal., 175. 
 
 That there has been a demand and a refusal to 
 
 perform the act. 
 
 People v. Romero, 18 Cal., 91. 
 
 That the purpose is to enforce an act enjoined 
 
 by law. 
 
 C. C. P., Sec. 1,085. 
 
 Verification ; 
 
 Must be by affidavit. 
 
 C. C. P., Sec. 1,086. 
 
 B. 
 The Notice. 
 
 C. C. P., Sees. 1,087-1,088. 
 
 c. 
 
 The "Writ. 
 Alternative and peremptory. 
 
 Ibid. 
 
 D. 
 
 Method of Service. 
 
 C. C. P., Sec. 1,096. 
 E. 
 The Answer. 
 C. C. P., Sec. 1,089. 
 Must be under oath. 
 Ibid. 
 
97 
 
 F. 
 Objections to Answer. 
 C. C. P., Sec. 1,091. 
 G. 
 The Trial. 
 C. C. P., Sec. 1,089. 
 Cannot be issued by default. 
 C. C. P., Sec. 1,088. 
 
 II. 
 Proceedings Subsequent to Judgment. 
 
 a. Assessment of damages. 
 
 G. C. P., Sec, 1,090, 1,095. 
 
 b. Costs. 
 
 C. C. P., Sec. 1,095. 
 
 c. Execution. 
 
 Ibid. 
 
 d. Peremptory writ without delay. 
 
 Ibid. 
 
 e. Method of enforcement. 
 Fine. 
 
 Imprisonment. 
 Supplemental orders. 
 
 C. C. P., Sec. 1,095. 
 /. New trial. 
 
 C. C. P., Sees. 1,092, 1,093. 
 
 g. Appeal. 
 
 C. C. P., Sec. i,i 10. 
 
 T4^> Of TES >^ 
 
9 S 
 
 Recent illustrations : Board of Trustees of the 
 Orange Law Library v. Supervisors, 99 Cal., 571. 
 
 THE WRIT OF PROHIBITION. 
 
 C. C. P., 1,102-1,105. 
 
 Definition : the counterpart of the writ of man- 
 damus, and arrests the proceedings of a tribunal, 
 corporation, board or person, when such pro- 
 ceedings are in excess of jurisdiction of such tri- 
 bunal. 
 
 Generally speaking, the same rules apply and 
 practice prevails as in the case of the writ of 
 mandamus. 
 
 While, generally speaking, the counterpart of 
 the writ of mandamus, it applies only to bodies 
 exercising judicial functions. 
 
 In 1881 an amendment to the Code extended 
 the writ to control ministerial acts, as well as judi- 
 cial functions, but this was held unconstitutional. 
 Camron v. Kenfield, 57 Cal., 550. 
 
 Recent Illustrations. 
 
 State Investment Insurance Company v. Su- 
 perior Court, 101 Cal., 135. 
 
 Also celebrated People's Home Savings Bank 
 and Pacific Bank cases. 
 
99 
 
 WRIT OF ERROR. 
 
 See Hayne. 
 
 Other Superior Court Writs. 
 See Hayne. 
 
 Recapitulation. 
 
 Some Criticisms on the System. 
 General Considerations. 
 Conclusion. 
 
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